The New Foundations of Labour Law

Ahlberg, Kerstin; Bruun, Niklas

The New Foundations of Labour Law

by Kerstin Ahlberg (Volume editor) Niklas Bruun (Volume editor)

Summary

This book explores the challenges of globalisation and digitalisation to labour law and social security under three headings. The first, «The changing foundations of labour law» focuses on the law itself. Here the authors discuss how a changing political setting influences the very foundations of contemporary labour law. The contributions in the second section, «Precarious work – the new normative model?», deal with the challenges that various new business models put to regulating working life and social welfare. The contributions in the final section, «New forms of labour mobility», treat the difficulties related to the protection of workers who move over borders between countries and continents. The book is a contribution to the ongoing debate on the future of labour law.

Excerpt

Cover
Title
Copyright
About the author(s)/editor(s)
About the book
This eBook can be cited
Table of Contents
Foreword
I. The Changing Foundations of Labour Law
The Old and New Foundations of Labour Law (Niklas Bruun)
1. Introduction
2. The Development of Labour Law – The Starting Points
3. Labour Rights as Human Rights
3.1 Dynamic Interpretation
3.2 Expansion of the Scope of Labour Law
4. Access to the Labour Market – Access Justice
5. The Four Dimensions of Contemporary Hybrid Labour Law
Brexit, Labour Law and the Twilight of Liberalism (Alan Bogg)
1. Introduction
2. Liberal Labour Law
3. The Communitarian Critique of Liberalism and the Resurgence of Communitarian Labour Law
4. The Three Faces of Communitarian Labour Law
4.1 The Trade Union Act 2016 and the Authoritarian State
4.2 The Immigration Act 2016 and Nationalistic Community
4.3 Human Rights: The Universal Versus the Particular
5. The ‘Labour Constitution’ and the Concept of the Political
6. Conclusion
Anti-Discrimination Law Setting the Standard for Social Europe? (Kevät Nousiainen)
1. Introduction
2. Increasing Inequality, its Political Causes and Counterweights
3. The Boost of European Anti-Discrimination Law
4. Dimensions of the Principle of Equality
5. The General (Formal) Principle of Equality; Anti-Discrimination as its ‘Other’
6. Positive Measures for Promoting Equality: A Step beyond Law?
7. Anti-Discrimination Law in Today’s Economic and Political Crisis
The Future Role of the International Labour Organization (Kari Tapiola)
1. Introduction
2. Debate on Core Labour Standards
3. The Evolving Standards Policy
4. The Changing Standard-Setting Agenda
5. The Washington Agreement
6. Issues for the Next Review
II. Precarious Work – The New Normative Model?
Uber, TaskRabbit & Co: Platforms as Employers? Rethinking the Labour Law of Crowdwork (Jeremias Prassl / Martin Risak)
1. Introduction
2. Working in the Digital Crowd
2.1 Characterising Crowdwork Platforms
2.2 Working in the Crowd
3. The Regulatory Challenge
3.1 The Received Analytical Approach
3.2 Identifying Parties, Characterising Contracts
3.2.1 Contractual Relationship between the Crowdworker and the Crowdsourcer
3.2.2 Contractual Relationship between the Crowdworker and the Crowdsourcing Platform
3.2.3 Contractual Relationship between the Crowdsourcer and the Crowdsourcing Platform
3.3 Shortcomings of this Approach
4. A Single Platform as the Employer
4.1 The Functions of the Employer
4.2 Uber: The Platform as a Sole Employer
4.2.1 Inception and Termination of the Employment Relationship
4.2.2 Receiving Labour and its Fruits
4.2.3 Providing Work and Pay
4.2.4 Managing the Enterprise-Internal Market
4.2.5 Managing the Enterprise-External Market
5. A Multiplicity of Employers
5.1. Shared Exercise of Functions
5.1.1 Inception and Termination of the Contract of Employment
5.1.2 Receiving Labour and its Fruits
5.1.3 Provision of Work and Pay
5.1.4 Managing the Enterprise-Internal Market
5.1.5 Managing the Enterprise-External Market
5.2 A Functional Concept of the Employer
6. Conclusion
Towards Fairness in the ‘Sharing Economy’ (Darcy du Toit)
1. Introduction
2. Independent Contracting
3. The ‘Sharing Economy’
4. The Case of Uber
5. Towards Regulation in the ‘Sharing Economy’
6. Conclusion
Zero Hours Work and the Role of the Law in Ireland (Juliet McMahon / Michelle O’Sullivan / Tom Turner / Lorraine Ryan / Jonathan Lavelle / Caroline Murphy / Mike O’Brien / Patrick Gunnigle)
1. Introduction
2. The Background to Zero Hours Regulation
3. Methodology
4. Zero Hours Contracts and Employment Law
5. The Law and the Reality of Zero Hours Work in Ireland
6. Employment Status in Irish Employment Law
7. The Operation and Effect of ‘If and When’ Contracts
8. Legal Options for Extending Rights to People on ‘If and When’ Contracts
8.1 An ‘Intermediate Status’
8.2 Reconceptualising the Employment Relationship
8.3 Limiting Contractual Freedom
8.4 Widening the Scope of the Organisation of Working Time Act 1997
9. Conclusion
Between Registered and Precarious: Priority of Engagement for Dockworkers in European and International Law (Isabelle van Hiel)
1. Introduction
2. The Origins of the Pool System
3. ILO Convention No. 137
4. Pool System Under Pressure
5. EU Maritime Transport Policy
5.1 Competition Law
5.2 Freedom of Establishment
6. The EFTA Case – Holship
7. The ECSR Case – Bedriftsforbundet
8. A Happy Ending …
Employment Model and Freedom of Association – The Case of Poland (Joanna Unterschütz)
1. Introduction
2. From State Protection to Flexibility
3. Trade Union Erosion and Decline in Trade Union Membership Rate
4. Spreading of Fixed-Term Employment Contracts
5. Replacement of Employment Contracts by Civil-Law Contracts
6. Proceedings before the ILO Freedom of Association Committee
7. Constitutional Tribunal on Freedom of Association and Definition of Worker
Precarious Work – New Implications for Social Security (Eberhard Eichenhofer)
1. Introduction – International Commitments Under International Law
2. What Jeopardises Social Security Protection for Precarious Work in General?
3. Work Arrangements on an Insufficient Legal Basis and Social Security
4. Incomplete Social Security Protection by Law
5. Social Security Problems Emerging from Multiple Work Relations
6. Social Protection for Low Paid Employees
6.1 Minimal Jobs
6.2 Social Protection for Self-Employed Persons
6.3 Evasion from Social Protection by Contracting Out
7. Social Protection for New Forms of Paid Work
7.1 The Neutral and Open Notion of Employment in Social Security Law
7.2 Economic Implications of Precarious Work
7.3 Effects of Low Payment to Social Assistance
8. Social Protection for Non-Paid Family Work
9. Conclusion
III. New Forms of Labour Mobility
Domestic Work, Mobility and Labour Law: Challenging Borders (Judy Fudge)
1. Introduction
2. Defining Domestic Work and Identifying Domestic Workers
3. Social Reproduction and Labour Markets
4. Migrant Domestic Workers and the Transnational Economy of Domestic Work
5. Labour Law and Migrant Domestic Workers
European Union Cross-Border Worker Mobility in Light of Digitalization of Labour – More Fragmentation Underway? (Mijke Houwerzijl)
1. Setting the Scene
2. Defining and Distinguishing ICT-Based Mobile Work and Crowdwork
2.1 ICT-Based Mobile Work
2.2 ‘Crowdwork’ and ‘Work on Demand’ via Apps
3. EU-Free Movement of ICT-Based Mobile Workers
4. A Hypothetical Example in a Euroregion
5. If the Exception Becomes the Norm
6. Is There a Way out of Complexity?
7. Crowdwork in the EU-Context
8. E-Worker, E-Service Provider or even E-Consumer?
9. Real and Genuine Activities?
10. Cross-Border Link and Applicable Law
11. Jurisdictional Issues
12. Concluding Remarks
The Shortcomings of Equal Treatment for Temporary Labour Migrants (Petra Herzfeld Olsson)
1. Introduction
2. Background
3. Some General Characteristics of Swedish Labour Law
4. Some Further Details about Two Particular Labour Law Aspects
4.1 Conclusion of the Employment Contract
4.2 Employment Protection – Principles on Just Cause for Dismissals
5. The Swedish Regulation of Labour Migration
6. How immigration law weakens the labour migrant’s bargaining position
6.1 The Conclusion of the Employment Contract
6.2 Employment Protection
7. Concluding remarks
Authors and Editors

| 13 →

Foreword

In 2009, the Swedish Research Council for Health, Working Life and Welfare (FORTE) decided to fund a six-year research program called ‘Regulating Markets and Labour – Nordic, European and Global Perspectives’ (ReMarkLab). Through the program, a closely collaborating group of researchers was formed at the Institute for Social Private Law, Department of Law, Stockholm University. The research group consisted of Niklas Bruun (director, Stockholm and Helsinki), Kerstin Ahlberg (Stockholm), Filip Dorssemont (Leuven), Thomas Erhag (Gothenburg), Jonas Malmberg (Uppsala), Mia Rönnmar (Lund), Cesar Rosado Marzán (Chicago), and Silvana Sciarra (Florence). Silvana Sciarra withdrew from the group when she was appointed Judge of the Italian Constitutional Court and Jonas Malmberg resigned when he became President of the Swedish Labour Court. Petra Herzfeld Olsson (Uppsala) replaced him.

The starting point for ReMarkLab was that globalisation is the major driving force for change of labour law, industrial relations, and labour markets. This globalisation consists of two closely interlinked processes.

The first is the rapid globalisation of the economy. The globalisation of the world economy is likely to contribute to economic growth, but it also causes challenges for labour. The second is the network economy and the digitalisation, which also change the foundations of labour law. Globalisation has shifted the balance of power between the nation state, workers, and employers, to the benefit of the latter.

The application of labour law and social security in cross-border situations was in focus for the ReMarkLab. Furthermore, we studied the process of the internationalisation of law itself. Today, the actual content of labour law at the national level is decided through a complex interplay between different actors (legislators, courts, social partners, multinational companies etc.) at different levels (national, regional and global). Further, the internationalisation of both economic law and labour law entails a territorial struggle between the aspirations of both fields of law in re- or deregulated markets and labour respectively, within the context of a complex structure of multi-level governance.

The funding allowed the group to have common meetings and activities while the individual researchers continued their normal work at their home universities. The group has especially followed the ongoing changes on the labour market, transnational developments and developments within the regulatory paradigms regarding work and the future of work, and its members have published different contributions relating to this development individually as well as jointly. ← 13 | 14 →

To mark the conclusion of the research program, ReMarkLab organized an international conference under the title ‘New Foundations of Labour Law in the Globalized Economy?’ in Stockholm in May 2016. The conference was divided into four blocks: 1) Precarious Work – the New Normative Model for Labour Law?; 2) Labour Law and New Forms of Labour Mobility; 3) Human Rights and International Labour Standards; and 4) Emerging Forms of Labour Law: Soft, Hybrid or Reactive?

As organizers, we were extremely happy with the outcome of the conference and its highly qualified presentations, which are significant contributions to the present debate on the future of labour law. We therefore wanted to collect the contributions into a common volume, and we are grateful that most of the speakers at the conference were willing to rework and develop their presentations for this publication. The book includes the main contributions from this conference.

We have structured the book in three sections. The first section, ‘The changing foundations of labour law’, focuses on the law itself. Here, four authors discuss how a changing political setting influences the very foundations of contemporary labour law. The contributions in the second section, ‘Precarious work – the new normative model?’, deal with the challenges that various new business models put to regulating working life and social welfare. The contributions in the final section, ‘New forms of labour mobility’, treat the specific difficulties related to the protection of workers who move over borders between countries and continents.

Now that the six years ReMarkLab journey is over, we want to thank the group, all participants in the conference, and the numerous colleagues and friends who have contributed in one way or another to our work during this period.

Niklas Bruun and Kerstin Ahlberg

| 15 →

I. The Changing Foundations of Labour Law

| 17 →

Niklas Bruun

The Old and New Foundations of Labour Law

1. Introduction

The starting point for the ReMarkLab research program was the deep changes that the preconditions for regulating labour markets and work have undergone worldwide during the last three decades of globalization.

This starting point is not very original. In fact, there is an abundant literature and widespread debate on the relevance of the classic labour law ideas in the world of today, sometimes declaring the death or disappearance of labour law, but more often trying to redefine the basic idea or ideas of labour law.¹

Within the ReMarkLab program, we have had the privilege and opportunity to discuss this issue from different angles and this paper is an effort to sum up some main features of the analysis and to explain the tensions and different views that underpin the present debates. This analysis of the state of labour law of today has the high ambition of forming a synthesis of our discussions and efforts. The present paper, however, in no way represents any collective outcome of our efforts; it is the views of the undersigned, but I hugely benefit from what I learned from my colleagues and partners in the program. Furthermore, I have had the privilege of being entrusted with some international tasks, which have enabled me to get direct insights into some developments of the functioning of international labour law.²

2. The Development of Labour Law – The Starting Points

The starting point for this effort has been – following in the footsteps of Hugo Sinzheimer, Otto Kahn-Freund, Folke Schmidt and many others – that it is an important task for labour lawyers to identify the principles which could be read ← 17 | 18 → or abstracted from the legal instruments adopted and to make them explicit and coherent, but also to point at inconsistencies and fragmentation. The latter has become increasingly predominant in the present phase of globalization.

Although labour lawyers disagree on many things, it is generally accepted that classic labour law, as it evolved in the aftermath of industrialization after World War II, was in essence a two-dimensional phenomenon. On the one hand, there was individual labour law regulating the individual contractual relationship between the employer and the worker from the starting point that the worker is the weaker party and needs protection. As many authors have pointed out, the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power.3 Traditionally it has been understood as a relationship of subordination. Davidov underlines that it is misleading to argue that the employment contract is an agreement like any other, since the employer agrees to pay the employees’ wages, a sum that is known and which the employee has no power to change later as he or she sees fit. On the other hand, the employee agrees to an open-ended clause, giving the employer the right to issue commands which will change from time to time as the employer sees fit.⁴ There is a structural inequality between the parties of this contract. Therefore, the protective aim has been regarded as the rationale for the entire individual labour law as a mandatory field of law applying to the employment relationship.

In contrast, there was collective labour law, where contractual balance was achieved by freedom of association for both employees and employers and the formation of trade unions that could conclude collective agreements with their employer counterparts. A well-functioning collective bargaining system required autonomy for the social partners in which they could operate, as well as a legitimate position for them as subjects within the legal system. This was what Sinzheimer called the labour constitution⁵ or economic constitution of labour law. These ← 18 | 19 → starting points have also formed the basis for the Constitution of the ILO, as well as its basic Conventions on the issue of freedom of association.6

The classic labour law has many limitations as many scholars have pointed out and it covers only a limited part of the governance of the world of work. It does not cover the informal sector, which traditionally has been huge in many, especially developing, countries. It has not been concerned about the labour market as a whole, but has mainly focused on those who are employed. Its main traditional context was the industrial society. For a long period, it was very much part of a nation state building project, building a national labour constitution.

Generally speaking, classic labour law has had a private law core with some public law elements. However, in many countries, the whole welfare society was built around the employment contract. Taxation, welfare benefits, and pensions were in a regulatory manner linked to the employment relationship. The governance of these benefits and their detailed regulation have been seen as falling outside of labour law (work governance) and forming a separate social security field. I do not think it is necessary to change this approach.

In this context, I am not going to discuss the classic labour law postulates, but I want to emphasize that we still have a very strong inheritance from the classic labour law that actually was developed on the national level and was anchored in international law up until the early 1980s. Some academics argue that the basic ideas of labour law are out of date.⁷ I strongly disagree, but the changed reality in which work is performed has brought up complementary and partly competing regulatory mechanisms, which have an impact on how the classic labour law principles and rules are implemented and function. While some argue that these new elements are external factors undermining or broadening the labour law regulatory regime, others see it as a fundamental crisis of labour law as we know it.⁸

Here I only want to present a very general picture of these well-known postulates. My point of view is that labour law of today can no longer adequately be described as two-dimensional, but that, actually, we have to picture it as a ← 19 | 20 → four-dimensional field of law. I argue that we need to acknowledge the four-dimensional structure of labour law in order to somehow rationalize the discussion and also recognize existing new developments. At the same time, we need to develop tools to understand and tackle these new developments in a consistent and coherent way, in order to put them into a context and to be able to create a functioning regulatory governance of future work.

So where do we stand now? According to many critics, we are facing the crisis of labour law, the decline of trade unions, and the complete change of work in the new evolving network society. They argue that traditional tools of labour law are not enabling us to adequately address the upcoming new problems. However, while it is true that there are many indications of the crisis, there are still enough employees and workers out there in the labour market, which makes it justified to argue that labour law still has a role to play. Especially in an era of rising populism, nationalism and extremism, there is every reason to revisit the spirit of the Philadelphia Declaration and its central postulate: ‘labour is not a commodity’ and ‘poverty anywhere constitutes a danger to prosperity everywhere’.9 We do not have a unified regulation of the world of work. Besides the two still relevant basic ideas of labour law, there are two new basic ideas which clearly are forming a base for regulation of work on a global scale.

The first one is the human rights approach to labour and work. The other one is about access to work or access to the labour market. Although its theoretical framework is often formulated in economic and not legal terms, the latter forms such a forceful goal of work governance worldwide that it cannot be ignored when we try to adequately describe current labour law. In a normative sense, we can of course argue that this access justice should not be given such a prominent role, but if we want to understand and describe the present situation, we cannot ignore it.

3. Labour Rights as Human Rights

The recognition of the significance of human rights on the labour market has grown considerably, first in the aftermath of World War II, and then also after the collapse of the Soviet Union and the Soviet Bloc of states in Eastern Europe.

The protection of labour rights as fundamental rights regulates the world of work partly directly and partly indirectly, through some spill-over effects. I think ← 20 | 21 → there is a large international consensus that the eight core labour Conventions of the ILO, as well as the relevant provisions in several UN fundamental rights instruments – starting with the UN Declaration of Fundamental Rights from 1948 – reflect a global consensus regarding core labour rights. A related development towards this emphasis on fundamental human rights is the introduction into working life of extensive non-discrimination legislative rules. Today many authors describe individual labour law as consisting of individual labour law and non-discrimination law, but in fact, the evolution of non-discrimination law has taken place mainly since the 1970s.

There are many critical views regarding the content and design of fundamental labour standards. For instance, one could ask why health and safety, the right to life, is not better protected as a fundamental right. However, this kind of architectural defect does not change the fact that there has been a paradigmatic shift in the national labour law constitution in many countries because of the enactment of different human rights instruments. And although we must have in mind that the employment relationship is basically a two-party relation between private parties, the state has undertaken several obligations to make sure that these rights are respected and promoted and that there are sanctions in place against those who do not fulfil their obligations in this regard.

In 1998, the ILO Labour Conference decided to proclaim eight of the existing labour Conventions as Core Labour Standard Conventions. These Conventions were divided into four categories. The categories are: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour, and the elimination of discrimination in respect of employment and occupation.

The decision on the Core Labour Standards has the form of an ILO Declaration on Fundamental Principles and Rights at Work. The Declaration commits ILO member states to respect and promote principles and rights whether or not they have ratified the relevant Conventions. This declaration makes it clear that these rights are universal, and that they apply to all people in all states regardless of the level of economic development. It particularly mentions groups with special needs, including the unemployed and migrant workers. It recognizes that economic growth alone is not enough to ensure equity, social progress and the eradication of poverty.

The commitment by all member states to abide by the core Conventions is supported by a follow-up procedure. Member states that have not ratified one or more of the core Conventions are asked each year to report on the status of the relevant rights and principles within their borders, noting impediments to ← 21 | 22 → ratification, and areas where assistance may be required. These reports are reviewed by the Committee of Experts. In turn, their observations are considered by the ILO’s Governing Body.

3.1 Dynamic Interpretation

When discussing the interpretation of the ILO core Conventions, it is important to note some basic facts. Most of these core conventions are rather old. The only exception is the new legally binding Protocol on Forced Labour, supported by a Recommendation (No. 203), aiming to advance prevention, protection and compensation measures, as well as to intensify efforts to eliminate contemporary forms of slavery. The Convention regulating the worst forms of child labour is as recent as 1998. The older instruments are rather short and many of the interpretations concerning their content have gradually been developed in practice.

For many good reasons, the drafting policy when regulating fundamental rights which should be applied globally and universally is often driven by intentions and a will to produce instruments that are formulated in a concise and declaratory manner.

If human rights instruments contain very detailed rules, they might not function in diverse contexts, which again might create problems regarding numbers of ratifications or for implementation. Within the ILO with its tripartite structure, slightly different views have traditionally been held regarding the preferable drafting approach. Employers have tended to prefer short and general instruments, while trade unions often argue for detailed regulation in order to avoid what they see as watering down or downgrading of certain rights in the context of national implementation.

Both approaches can be defended. Short, very general texts create problems with predictability and may lead to legal uncertainty. It is a legitimate requirement that state parties should know what obligations they undertake when they ratify a convention. If the text is short and general, we might find out the real content only after the implementation phase, when the supervisory bodies have assessed what the implementation requires.

Details

Pages: 276
Year: 2017
ISBN (PDF): 9783631726778
ISBN (ePUB): 9783631726785
ISBN (MOBI): 9783631726792
ISBN (Hardcover): 9783631718506
DOI: 10.3726/b11540
Language: English
Publication date: 2017 (November)
Keywords: Precarious work ‘Gig’ economy Labour migration Domestic work Fundamental rights Non-discrimination law
Published: Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2017. 276 pp., 7 b/w ill.

Biographical notes

Kerstin Ahlberg (Volume editor) Niklas Bruun (Volume editor)

Kerstin Ahlberg is the Director of the Institute for Social Private Law, Stockholm University, where she does research and works as an editor. She has been a member of the research program Regulating Markets and Labour (ReMarkLab). Niklas Bruun is a Professor of Law at Hanken School of economics, Helsinki. He has been the Director of the research program ReMarkLab, Stockholm University, where he held a position as a Guest Professor.

The New Foundations of Labour Law

Summary

Excerpt

Table Of Contents

Details

Biographical notes

Key Subject Areas