Section 4 - Employment Rights Flashcards
two points of view in labour market
- competitiveness is best achieved through deregulation of the labour market, leaving business free to discover the most efficient solutions to production problems
- achievement of competitiveness requires government intervention to provide public goods, such as an educated and skilled workforce
main objective of regulation in EU
prevent social dumping
what is social dumping
practice whereby workers are given pay and / or working and living conditions which are SUB-STANDARD compared to those specified by law or collective agreements in the relevant labor market, or otherwise prevalent there
why collective agreements
you as a single person don’t have enough power to compete with the company and negotiate terms and conditions. Collective unions allow that the bear of power is more equally distributed. Employment contracts rise for a freedom of negotiation.
two sides of empl. regulation
- individual rights: international, state, individual EC
- Collective regulation: international, national, sectoral, workplace
EU level: main protections
- Maximum working hours (but not minimum wage), right to sick pay and maternity leave, minimum paid holiday entitlement;
- Health and Safety rights and duties
- Anti-discrimination laws
main legislations in EU
TFEU: TREATY OF THE FUNCTIONING OF THE EU (2009)
GPUE: GENERAL PRINCIPLES OF EU
Relevant articles from TFEU: 151-161
social/employment policy (“the social chapter” – including especially Article 157 on principle of equal pay between men and women);
Relevant articles from TFEU: Article 10
combating discrimination on grounds of sex, race, religion or belief; disability, age or sexual orientation
Relevant articles from TFEU: Articles 45-48
free movement across eu of workers
GPEU: which convention draw the fundamental rights?
European Convention on Human Rights and Fundamental Freedoms (ECHR)
ARTICLE 4 (ECHR)
prohibition of forced labor
article 11 ECHR
union freedom
which rights are complementary to the articles 45-48 on free movement of workers?
- right of movement and right to reside of workers
- right of entry and residence of workers’ families
- non discrimination
- equal treatment
- exercise of professional activity (except public authority)
Preliminary function of the court of justice for the European Union
INTERPRETATION: in case of doubts from the national court
second role of the court of justice for the European Union
sanctionary: citizens can recall the European court of justice if they think that the national law did not provide them a proper regulation according to EU rules.
forms of collective regulations
- voluntarist approach (UK and italy)
- co-determination (germany)
- coordinated models (France)
collective bargaining
process and method that reach an agreement legally enforceable. A method of determining terms of employment and regulating the employment relationship, which utilizes the process of NEGOTIATION between representatives of management and employees and results in an agreement which may be applied uniformly across a group of employees’
does EU have an extensive regulation at the collective level?
The EU has extensive regulation at the individual level, but at the level of collective agreements and bargaining is not quite regulated
information and consultation: difference from collective bargaining?
yes
information and consultation is the right TO BE INFORMED AND CONSULTED in specific matters, is a procedural act that does not guarantee legal enforcement or negotiation.
agency work (tripartite relationship)
an agency hires workers to work for other businesses, offering workforce for business (intermediate between workers and the companies)
subcontracting
a company subcontract part of the activity to another company (ex. of cleaners)
employment contract: expressed or implied?
it doesn’t matter if the contract is expressed or implied: there is a presumption of employment relation to protect the weaker part. the burden of prove is reversed, so the weaker part needs to prove that the relation does not exist)
employment contract: written
When the written contract is in place, what matters is the reality of the relationship. It doesn’t matter how you qualify the relationship, the judge has the faculty to change it.
definition of employment contract
A “contract of employment” is defined as: “a contract of SERVICE or APPRENTICESHIP,
whether EXPRESSED or IMPLIED,
and (if it is express) whether ORAL or in WRITING”.
ec: freedom to contract?
no, certain terms are required or prohibited by statute law, and for the employees there are implied duties of loyalty and confidentiality.
which types of contracts are mandatory to be written for their validity?
agency work
short term contracts
who is an employee?
individual who performs a service under the COORDINATION of an employer,
under a certain expressed or implied CONTRACT,
is part and parcel of the organization
has its own account
the employer and the employee have a irreducible minimum of obligation
U.K. Hybrid category: worker
individual who has entered into or works under a contract of employment; or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”
main difference employee and worker
worker has less protection than an employee and has a much broader concept (includes for example PARASUBORDINATE)
is engaged in effective and genuine activities, economically, functionally and/or operationally dependent from a client/principal, receiving in exchange some kind of remuneration.
Written statement directive (1991/533 EEC)
employer’s obligation to inform employees of the conditions applicable to the employment relationship. It outlines a compulsory list of the minimum information every employer must provide to their employees (name of employer, date of employment beginning, job title and description, terms and condition, remuneration etc)
employee duties
- CO-OPERATE with the employer, including obeying lawful instructions and not impeding the employer’s business.
- Duty of FIDELITY: However, it should be noted that the employee’s duties of good faith, loyalty and trust and confidence should not be equated automatically with fiduciary obligations
- Implied duty not to compete and do not disclose confidential information.
- take reasonable care for their own safety and that of fellow employees;
“Female salesperson” searching is discriminatory?
is discriminatory, gender stereotype
3 elements of direct discrimination
- comparator (real or hypothetical)
- same situation or not materially different
- because of a protected characterstic
equal pay (article 157 TFEU)
- FOR EQUAL WORK
- WORK OF EQUAL VALUE
