Background - European labour law

Question 1

Two functions of labour law; classic and additional

Answer 1

1 - Classic function - the protection of workers, and compensation for the power imbalance

2- Create a predictable & orderly allocation of rights, obligations and responsibilities - this is the organisational function and is useful for employers in matters such as vicarious liability and scope

Question 2

Name at least 4 fundamental rights for employees

Answer 2

Fundamental rights primarily serve the interests of workers,
- a duty to care for the employee;
- a duty to respect the privacy of the employees;
- a duty to protect the personality of the employee;
- a duty to respect employees’ constitutional rights;
- a duty to provide work;
- a duty to improve the professional qualifications of the worker;
- a duty to make the employee aware of contingent benefits;
- a duty to maintain trust and confidence; etc.

Question 3

History of modern labour law

Answer 3

Modern labour law came into existence around 1800. This era of enlightenment espoused ideas of freedom of contract and the English notions of freedom of trade.

After WWI labour law expanded significantly, and after the WWII it reached its peak of expansion in the 1960’s / 1970’s.

Question 4

5 New ideological idea affecting change in labour law

Answer 4

• Deregulation
  
  • Privatization
  • Flexibility
  • Emphasis on Equality
• Decreased focus on imposed solidarity

Question 5

Europe is transitioning from a ____ labour market to a _____

Answer 5

Contractual and industrial relations … to a……. post-industrial knowledge-based economy.

Question 6

Hierarchy in sources of labour law

Answer 6

1. Main Rule
   I. Legislation/acts of parliament
   II. Collective agreement
   III. Contract of employment
   2. First Exception
      ○ Lower source takes priority over the higher source, if it is more favourable for the worker
   3. Exception on a exception
      ○ Higher source sometimes takes the priority OR may give a priority to a lower source… Even if that lower source is unfavourable to the worker
      ○ In this instance, the higher source may have an overriding power over the lower source.

Question 7

The three main global international organisations that may influence labour law + 2 European bodies

Answer 7

1. the United Nations (UN)
2. the International Labour Organization (ILO) in Geneva
3. the Organization of Economic Cooperation and Development (OECD)

The main European organizations
1. the Council of Europe (CoE)
2. the European Union (EC/EU)

Question 8

3 Key examples of labour standards produced by international organisations

Answer 8

1. the UN Covenant on Economic, Social and Cultural Rights
   2. ILO Convention Nr 87 on the freedom of association of trade unions
   3* the OECD Code for Multinational Enterprises

Question 9

2 Key examples of labour standards produced by European organisations

Answer 9

4 * the European Social Charter (ESC)
5. the EU Regulation on Free Movement of workers

Question 10

Basic elements of a contract of employment, and which element is often the contested one

Answer 10

1. Work
   
   2. Pay (renumeration)
2. In subordination

Subordination is often difficult to answer in new forms of work

Question 11

Which countries have a specific set of labour laws to serve leading personnel?

Answer 11

DE: Leitende Angestellten, and FR: cadres, in IT: ‘quadri’), a group of superior workers who are usually very close to the management in the role as employer

Question 12

What is an incorporation clause?

Answer 12

a clause in the contract which refers to the collective agreement, or a staff guide/ company handbook - making the collective agreement or staff guide / company handbook binding to the parties of the individual contract of employment and therefore legally enforceable

Question 13

To whom do collective agreements apply in Europe?

Answer 13

Collective agreement is applicable to ALL employees working within the scope of the collective agreement working in service of an employer who is bound to the collective agreement because
(a) he himself has signed it or
(b) he is member of an employers’ association that has signed it

Question 14

How do employers avoid collective agreements?

+ how is this avoidance solved? explain briefly

Answer 14

(a) by not signing or
(b) by cancelling his membership of an employers association
in that case the collective agreement is NOT applicable to the employment contracts of his staff

ERGA OMNES PRINCIPLE - where the gov. of a nation state has erga omnes principle in force = collective agreement is applicable on ALL employees of ALL employers in the sector applied

Question 15

Countries where Erga Omnes does not exist include:

Answer 15

UK, SE, DK, IT

Question 16

Principles of applicability for collective agreement - two principles

Answer 16

1. In multi-employer or industry agreements, only the companies involved in the bargaining process or organised in employers association are covered
2. Erga omnes principle - where All employees in the covered companies are affected (NOT ONLY those who are members of a union)

Question 17

Which EU Regulation determines which national law should apply to contractual obligations in civil and commercial matters involving more than one country in the EU.

Answer 17

Art. 3 and 8 of Regulation 593/2008/EC (Rome I Regulation) provide that only if NO explicit choice is made, the applicable law is the lex loci labori (the law of the country where the employee habitually carries out his work).

Question 18

What is the EU prescribed paid leave time?

Answer 18

1993 Directive on the Organization of Working Time the EU prescribes a minimum of four weeks of vacation with pay

Question 19

is Health and safety law in Europe harmonised? What is directive is it based on

Answer 19

the law of the EU Member States is now largely harmonised through more than 20 specific EU Directives, all building on the Framework Directive of 1989 (Dir. 89/391/EEC)

Question 20

CONTINUE FROM CH 5 - 19 Sept

Question 21

Name the rights of the employers and thus the duties of the employees?

Answer 21

• the management right of the employer/the managerial prerogative, which give the employer a right to adapt the work of the employee
• the employee owes the employer a certain amount of loyalty as well as the duty of confidence.
• and a duty of care towards the possessions of the employer