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  European Union
 
Afonso, Alexandre, "Employer Strategies, Cross-class Coalitions and the Free Movement of Labour in the Enlarged European Union", Socio-Economic Review v. 10 no4 (October 2012) p. 705-730

Abstract:
The author argues that national employer associations in the European Union (EU) are not uniformly antagonistic towards the domestic regulation of labor mobility and wages in a context of an increasingly heterogeneous labor market and growing prevalence of migrant and “posted” labor. Based on analyses of Austria, Ireland, and Switzerland, the author suggests that whether employer associations are likely to support regulation and/or negotiate with trade unions and government over domestic labor standards depends on three factors: (1) sectoral power differences within employer associations; (2) the perceived strength of trade unions; and (3) the perceived likelihood of unilateral governmental intervention. The author notes that employers in the nontradable sector tend to prefer regulation that prevents foreign employers from competing on the basis of weak labor standards. How these employers shape association strategies depends on the domestic economy’s composition and voting processes within the association. Even when employers who prefer minimal regulation dominate the association, as is the case in Ireland and Switzerland, if they perceive that trade unions are strong enough to impel regulation and/or that government might impose regulations unilaterally, the association tends to consent to regulation in order for the opportunity to shape negotiations.

Subjects: Comparative Labor Law, European Union
Newsletter: Vol 11, Issue 12
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Anderson, Gordon, "Labour Law in a Globalising World", Modern Law Review v. 66 no4 (July 2003) p. 640-649

Abstract:
This article reviews Social and Labour Rights in a Global Context: International and Comparative Perspectives, a book comprised of a collection of papers originating from a 2001 conference in England on international labor rights and the nature of globalization. The book addresses three themes: responses to globalization, the potential for fundamental social rights in the EU, and the constitutionalization and enforcement of social rights. The collection as a whole paints a pessimistic picture of the future for social and labor rights within the countries it discusses. The picture is one of labor rights under pressure domestically from market-driven political agendas and internationally from mobile capital uses its economic power both to relocate to the most business-friendly environment and to encourage a lowering of standards in countries eager to attract such companies. The reviewing author concludes that prospect for the development and protection of labor rights around the world seems weak in light of the WTO's unwillingness to be involved in promoting labor rights and the lack of governmental support for ILO initiatives.

Subjects: European Union, International Labour Organization (ILO), Labor Rights in General (Misc.), World Trade Organization (WTO)
Newsletter: Vol 2, Issue 12
 
Armour, John & Deakin, Simon, "Bargaining in the Shadow of TUPE", Industrial Law Journal v. 29 no4 (2000) p. 395-402

Abstract:
Armour and Deakin use the sale of Rovers assets by BMW to describe how, in practice, the European Unions Transfer of Undertakings Regulations (TUPE) protect workers. They show how the rules created disincentives for the buyer and seller, BMW and the Phoneix consortium, to completely break up the British subsidiary and opportunities for the union to use litigation to drive up the costs of such a move, dramatically reducing job losses in the process. TUPE forces tranferees to take the entire workforce instead of picking and choosing who it will hire and who it will not hire. It also requires them to pay employees redundancy compensation in accordance with previous employment contracts and accrued seniority. After providing a concise overview of TUPE rules, the authors give a brief account of the unions strategy and explains how, under the Acquired Rights Directive, member states can make a partial derogation from these protections in the event of insolvency proceedings. This loophole, however, did not apply to the Rover situation because, although unprofitable, Rover was not insolvent, and the union was therefore not in a position of concession bargaining allowed under the directive.

Subjects: European Union
Newsletter: Vol 2, Issue 7
 
Ashiagbor, Diamond, "EMU and the Shift in the European Labour Law Agenda: From 'Social Policy' to 'Employment Policy'", European Law Journal v. 7 no3 (2001) p. 311-330

Abstract:
The author argues that, because of the unemployment problem, EU policymaking discourse is increasingly emphasizing labor market "flexibility" and job creation, while downplaying traditional emphasis on employment protection and high labor standards. Increasingly, as policymakers have tried to even out unemployment rates throughout the EU, they have adopted the assumption that high unemployment has been caused by rigidities in European labor markets, despite scant evidence for this position. The dominant style of regulation has accordingly shifted away from legislation and expenditures of funds to create jobs, toward employment creation policies and soft law dependent on the social partners. The article reviews some of the major policy statements of EU organs and concludes that EU employment policy (1) remains "facilitative, rather than prescriptive" and (2) remains stunted by a tension between advocates of deregulation and intervention.

Subjects: European Union, Labor Rights in General (Misc.)
Newsletter: Vol 2, Issue 6
 
Ashiagbor, Diamond, "Labor Law and Development: Perspectives on Labor Regulation in Africa and the African Diaspora: Embedding Trade Liberalization in Social Policy: Lessons from the European Union?", Comparative Labor Law & Policy Journal v. 32 no2 (Winter 2011) p. 373–443

Abstract:
The author argues that the European Union’s (EU) model for protecting Member States from the shocks of trade liberalization—“social regionalism”— undermines equitable global trade. Social regionalism’s “internal” policy is designed to protect Member States from liberalized trade, yet within the EU is it is de-regulatory, focusing on reducing unemployment by facilitating worker retraining. The internal policy also includes mass expenditures to less developed members for adjusting to redundancies, restructuring, and insolvencies. Social regionalism’s “external” policy for mitigating shocks from liberalized trade with non-EU partners includes aggressive competition in open markets. It involves a shift from multilateral to bilateral trade agreements with industrializing partners that fragment the latter’s existing regional governance and thus perpetuate asymmetric bargaining power. The author argues that social regionalism’s internal and external components are inseparable, but that its external components subvert the autonomy of industrializing trading partners necessary to develop analogous regional institutions and national welfare states that can mitigate trade shocks, promote competitiveness, and effectuate labor rights provisions inserted in trade agreements.

Subjects: Comparative Labor Law, European Union, Trade Agreements
Newsletter: Vol 11, Issue 4
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Barnard, Catherine & Deakin, Simon, "Negative and Positive Harmonization of Labor Law in the European Union", Columbia Journal of European Law v. 8 (Summer 2002) p. 389-415

Abstract:
Barnard and Deakin argue that the tension between the free markets and social policy aims of European integration has been alive since the communities early days in the 1950s. Free movement and undistorted competition in the single market are fundamental rights under the EC treaty, and therefore the European Court of Justice has brought an increasing number of topics under its jurisdiction by implementing broad, effects-based tests to determine if national regulations interfered with the internal markets. The authors qualify this claim, however, with a series of cases in which judges showed awareness of the damage that such “negative” harmonization can have on the national social fabric. For example, the authors describe the Albany case, in which judges found that collective agreements had some immunity from market harmonization rules, since the drafters of the Treaty had not intended social policy to be insulated from the rules of the internal market. They then review numerous cases and other policy events marking the evolution of “positive” harmonization, from the early days of pure neoliberalism; through the “selective harmonization” of the 1970s and 1980s; the post-Maastricht phase of reflexive law or “regulatory learning within a hard law framework”; and the contemporary phase of an “open method of coordination” consisting of soft law drawing heavily on national law.

Subjects: European Union, Open Method of Coordination
Newsletter: Vol 2, Issue 9
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Bercusson, Brian, "The European Social Model Comes to Britain", Industrial Law Journal v. 31 no3 (September 2002) p. 209-244

Abstract:
The author examines the relationship between British labor law and the European Commission’s directives mandating ‘information and consultation. First, the author outlines in detail the meaning of the EC framework directive for informing and consulting employees (Directive 2002/14/EC) and its implications for British labor law, which until now has not mandated workplace representatives. Second, the author describes several respects in which the Blair government has weakened the EC legislation, including diluting the language mandating sanctions for noncompliance. Lastly, the author speculates about whether the British will adopt a posture of ‘exceptionalism’ in its implementation of the directive, such as by exploiting a loophole for member states that do not have a statutory system of workplace representation or information and consultation. The author concludes that ultimately the UK cannot escape the European social model of mandatory employee representation.

Subjects: Case Studies: Country-Specific, European Union
Newsletter: Vol 2, Issue 2
 
Biagi, Marco, "Toward A New European Corportism?- The Role of Social Partners in Europe: From Dialogue to Partnership", Comparative Labor Law & Policy Journal v. 20 no3 (1999) p. 485-496

Abstract:
The author argues that labor and management must act as “social partners,” play a strong role in setting the direction of policy, and enhance their “representativeness.” Social partnership is especially important in the legislative process, because legislation agreed upon by the social partners could overcome a paralyzing set of alternatives in standard intergovernmental negotiations and therefore assist the reaching of compromises among member states. Labor and management federations have already played new roles in job creation in the 1998 Luxembourg summit. The author advocates a multi-level (national, European, and company) system of industrial relations with “mandatory topics” of collective agreements, including updating agreements to take into account new forms of work organization; reconciling work and family life; modernizing the legislative framework of employment regulation; and setting up the framework of participation and employee involvement itself. He argues that these proposals would promote social inclusion and economic competitiveness in Europe.

Subjects: Employee Participation and Works Councils, European Union
Newsletter: Vol 2, Issue 9
 
Cornwall, Janelle, "It was the First Strike of Bloggers Ever: An Examination of Article 10 of the European Convention of Human Rights as Italian Bloggers Take a Stand Against the Alfano Decree", Emory International Law Review v. 25 no1 (2011) p. 499-538

Abstract:
The author analyzes the legality of the Alfano Decree under the European Convention on Human Rights. The decree is a bill approved by the Italian Chamber of Deputies that precipitated a 2009 strike by hundreds of Italian bloggers. It would subject internet users to severe criminal sanctions for failing to retract posts containing inaccurate information within 48 hours of request by one who believes the material harms his/her reputation. The author concludes that the European Court on Human Rights would likely find that the decree infringes the fundamental freedom of expression under Section 10(1), does not constitute a legitimate interference under Section 10(2), and does not fall within the “margin of appreciation” doctrine that affords countries’ license to negotiate conflicts between national interests and individual rights. She argues that the decree’s political context is an important factor weighing against its legality. Prime Minister Silvio Berlusconi’s control over most of the media has made blogs one of Italy’s few independent media outlets, and the decree was promulgated in the wake of political scandal. Further, Italians have limited internet access relative to other developed countries, and other harsh restrictions, including libel laws and identification requirements, already discourage its use.

Subjects: Case Studies: Industry-Specific, European Union
Newsletter: Vol 11, Issue 7
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Davies, Paul, "Workers on the Board of the European Company?", Industrial Law Journal v. 32 no2 (2003) p. 75-96

Abstract:
This article provides a detailed overview of a core issue raised by the new European Company statute: employee participation in in the new kind of firm, the societas europaea (SE), that the statute creates. Although the statute provides that within SEs, workers have a complex set of rights to participate at the corporate board level, the author argues that the statute may have little effect. This is because: (1) employee representation at the board level is not a requirement at all SEs; (2) firms may lack incentive to form SEs (other mechanisms exist in national law for cross-border mergers); and (3) much of the behavior of SEs is still regulated by company laws of member states. The author provides an overview of the mandated employee involvement procedures for establishing an SE. The author then describes how the rules that specify when employee participation is mandatory and what the minimum acceptable level of participation is the product of a compromise between those countries that wanted to prevent “escape” from participation (Germany) and those that who wanted to prevent “export” of participation (Spain). The remainder of the article provides a detailed set of hypothetical scenarios to demonstrate how the tension between the “no export” and “no escape” position play out differently in different varieties of SEs. It concludes that the negotiations to establish an SE are likely to be complex, that the rules are generally tilted towards “exporting” participation. However, the author contends that the rules are considerably watered down and fragmented compared to the early expectations of the European commission in the 1970s to set up a single mandatory system of worker participation rules at large firms.

Subjects: Corporate Accountability, Employee Participation and Works Councils, European Union
Newsletter: Vol 2, Issue 9
 
Eklund, Ronnie, "A Swedish Perspective on Laval", Comparative Labor Law & Policy Journal v. 29 no4 (2008) p. 551-571

Abstract:
This article begins by contextualizing and summarizing the 2007 European Court of Justice decision in Laval, in which the Court curbed the reach of Swedish labor law with respect to companies from other European Union nations that operate in Sweden. The court upheld minimum national standards, but enjoined trade union actions designed to bring a foreign company in line with higher prevailing national standards. The author critiques the Court’s decision by highlighting case law, international agreements and European Community law that seek to create fair competition between companies from different nations and protect the right to strike, and would therefore lead to a contrary decision. The author concludes that the decision may lead to further erosion of workers’ rights in the European Union, since the court, for the first time, accepted the company’s rationale that the economic costs of collective bargaining would have been prohibitive.

Subjects: Case Studies: Country-Specific, Collective Bargaining, European Union, Right to Strike
Newsletter: Vol 8, Issue 11
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Felter, Megan, "Note: Short-Time Compensation: Is Germany’s Success with Kurzarbeit an Answer to U.S. Unemployment? ", Boston College International and Comparative Law Review v. 35 (Spring 2012) p. 481-510

Abstract:
The author argues the United States (U.S.) can learn from Germany’s success in using its work-sharing program to limit unemployment during recessions. During the 2008-2009 economic recession, German unemployment rate stayed constant, although rate in the United States increased doubled between 2008 and 2009. The author argues that Germany’s use of its Kurzarbeit work-sharing program helped prevent the loss of jobs during the economic recession. Under the program, employees whose hours are reduced due to temporary decreases in demand can receive government funds to supplement their diminished incomes. Although twenty-three states in the U.S. offer similar work-sharing programs, known in the United States as Short-Time Compensation (STC), these programs remain vastly underutilized for several reasons. First, legal ambiguity has stood in the way of the programs’ implementation. STC programs initially were created under the Tax Equity and Fiscal Responsibility Act (TEFRA), a program that expired in 1985. In 1992, Congress enacted the Unemployment Compensation Amendments of 1992 (UCA) in which it called upon the Department of Labor to create model legislation for STC programs. However, the Department of Labor has not done so, in part because UCA definitions of what constitutes an STC are inconsistent with TEFRA. In addition, most employers are unaware of the existence of STC programs. Currently only two percent of all unemployment claims involve STC claims. The author argues that that U.S. should pass legislation that reconciles the inconsistent legal definition of an STC programs, and should government actively promote STC programs to employers. Moreover, the author advocates that employers be required to continue health insurance and pension contributes while workers participate in STC programs. The author concludes that STC programs, under the right circumstances, can help combat unemployment in the U.S.

Subjects: Case Studies: Country-Specific, European Union, Flexibilization, Unemployment Insurance
Newsletter: Vol 12, Issue 4
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Freedland, Mark , "Developing the European Comparative Law of Personal Work Contracts", Comparative Labor Law & Policy Journal v. 28 (2007) p. 487-497

Abstract:
This article summarizes ongoing research into the comparative law of employment contracts in North America, Great Britain and continental Europe. The author argues that the continental European labor law is generally less inclined than its English counterpart to make categorical exclusions of temporary and contingent workers from "employee" status based on assumptions about long-term labor contracts as a societal norm. He also argues that continental European legal systems have generally had a more flexible notion of "employer," which, in turn, may be more useful for recognizing a continuous employment contract between a worker and successive proprietors or in situations involving employment contracts with joint or multiple employers. Further, the author argues that because different countries have different doctrines regarding the ability of individual employees to contract out of statutory labor standards, the resulting divergence of regulations has made it increasingly important for labor law scholars to examine labor law in a comparative perspective.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Conflict of Laws, Contingent Work, Employment Law, European Union, Flexibilization, Working Hours
Newsletter: Vol 6, Issue 12
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Fuchs, Maximilian, "The Bottom Line of European Labour Law (Part I)", International Journal of Comparative Labour Law and Industrial Relations v. 20 no2 (Summer 2004) p. 155-176

Abstract:
The author examines the development of European Labor Law, a field that has been characterized by the tension between economic and social interests. Part I gives a historic account of how the role of labor law in the EU has expanded from a limited role under the pure economic model of the original European Economic Community Treaty (EEC Treaty), to a major role within the current context of European integration. The author describes the development of a social policy approach in the 1970s, the crucial role played by social partners, the passing of the Community Charter of Fundamental Social Rights of Workers and the Charter of Fundamental Rights of the European Union, and the far-reaching role of the European Court of Justice (ECJ) in integrating social concerns into European labor law. He also discusses collective labor law, emphasizing the area of employee participation in management decision-making. The author addresses the concern that the new European employment policy will adversely affect European labor law by arguing that the tension between the two is nothing more than the fundamental conflict in social and economic coordination that has been addressed in the Community’s policies of flexibility and security.

Subjects: European Union, Labor Rights in General (Misc.)
Newsletter: Vol 4, Issue 1
 
Fuchs, Maximilian, "The Bottom Line of European Labour Law (Part II)", International Journal of Comparative Labour Law and Industrial Relations v. 20 no3 (Fall 2004) p. 423-444

Abstract:
This is the second part of a two-part series examining the development of European Labor Law, a field that has been characterized by the tension between economic and social interests. The article begins with a description of the right to freedom of movement of labor within the EU, an area that most experts tout as a success story of European integration. The author then explores the influence of European labor legislation on national labor law in the areas of freedom to make employment contracts, anti-discrimination, atypical employment, reconciliation of family life and work, company restructuring, collective labor law, and employee health and safety protection. He evaluates each of these areas in light of the piecemeal nature of European Labor Law and the continuing need to strike a balance between economic and social objectives.

Subjects: Contingent Work, European Union, Health and Safety, Labor Rights in General (Misc.)
Newsletter: Vol 4, Issue 7
 
Ganesh, Aravind R., "Appointing Foxes to Guard Henhouses: The European Posted Workers' Directive", Columbia Journal of European Law v. 15 (2009) p. 123-142

Abstract:
This article discusses the implications of recent decisions by the European Court of Justice affecting the representational rights for the one million "posted" workers working temporarily under contract in another EU member state than the one in which they live. Cases such as Laval and Viking illuminate the tensions between the EC Directive for posted workers, which establishes minimum standards, and collective bargaining agreements, which seek to raise standards. The author argues that the governance structure established by the Directive is inadequate to give "voice" to posted workers because the member states, unions, and businesses that are empowered to engage in a "social dialogue" about working conditions for posted workers have interests in conflict with those of the workers themselves. For instance, while both member states and unions are concerned about the downward pressure on wages due to the importation of cheaper labor, traditional unions have little institutional interest in organizing transient workers while member states fear posted workers will drain their social welfare coffers, giving them little incentive to broaden domestic protections for protected workers. Likening the member states and unions to "foxes," Ganesh further maintains that the European Commission's efforts to remedy the disempowerment of posted workers by encouraging greater cooperation and transparency among the partners of the "social dialogue" will prove hollow unless it includes the right of posted workers to be heard.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 2
 
Gospel, Howard & Lockwood, Graeme & Willlman, Paul, "A British Dilemma: Disclosure of Information for Collective Bargaining and Joint Consultation", Comparative Labor Law & Policy Journal v. 22 (2001) p. 327-349

Abstract:
This article argues that the British state faces a dilemma as it begins to implement European consultation and disclosure rules that require employers to share certain kinds of information and discuss certain decisions with employees. Previously, the British rules on disclosure set a high hurdle for unions to overcome when seeking information. The article describes how the British government has modified existing disclosure rules to conform to EU directives in the areas of health and safety, collective redundancy, transfer of undertakings, and European works councils. Yet the new disclosure requirements raise several difficult issues, including whether the information disclosure requirements apply to collective bargaining, consultation or both; whether consultation and collective bargaining will reinforce or undermine each other; the extent to which the UK must change its labor laws to comply with the EU directive; and whether the practical implementation would be ineffective, as in France, or effective, as in Germany. The author contends that British have not implemented the new disclosure rules very well -- implementing them in an ad hoc fashion, setting inadequate sanctions for firms that break the rules, and allowing firms to use "consultation" to bypass the authority of union officials.

Subjects: Case Studies: Country-Specific, European Union, Labor Rights in General (Misc.)
Newsletter: Vol 2, Issue 6
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Hobson, Barbara & Fahlen, Susanne, "Competing Scenarios for European Fathers: Applying Sen's Capabilities and Agency Framework to Work-Family Balance", Annals of The American Academy of Political and Social Science (July 2009) p. 214-233

Abstract:
This article analyses the impact of labor policies that promote child-rearing and job security on European fathers’ ability to pursue work-life balance. It analyzes responses by parents of young children in 10 countries to the 2004 European Social Survey. First, the article observes that the work-life ideal espoused by fathers is not reflected in the reality of their work hours. For example, although the vast majority of parents of both sexes believe that one’s main priority should be family, many fathers report that they work more hours than they would prefer. On the surface, fathers’ desire to work fewer hours appears directly correlated to their individual sense of job security. In fact, however, the data shows that fathers’ desire to work fewer hours is even more strongly correlated with two other factors -- a lack of labor policies that promote child-rearing and job security, and cultural norms that emphasize men as breadwinners instead of caretakers. Given this empirical data, the article concludes that fathers’ ability to pursue work-life balance is limited less by individual factors than by the laws and norms that shape their employment relationship.

Subjects: Employment Law, European Union
Newsletter: Vol 10, Issue 3
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Howes, Victoria & Wank, Rolf, "New Grounds for Anti-discrimination: the Roles of Equality Commissions in Law Enforcement in the UK and Germany", International Journal of Comparative Labour Law and Industrial Relations v. 21 no4 (2005) p. 571-590

Abstract:
This article explores existing anti-discrimination regulations and their enforcement mechanisms in the UK and Germany. The first section looks at the development of anti-discrimination law in the UK and Germany, describing how the UK has been more advanced in this area than the other EU member States. The next section discusses the implementation of the new EU anti-discrimination directives in the UK and Germany, focusing on the role of equality commissions which enforce anti-discrimination laws through public fact-finding investigations. The author concludes with the suggestion that the UK and Germany should take additional enforcement steps, including developing training programs for employers, establishing a national helpline for potential claimants, and embarking on a public relations campaign.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, European Union, Women’s Rights
Newsletter: Vol 5, Issue 1
 
Howse, Robert, "Back to Court After Shrimp/Turtle? Almost but not Quite Yet: India’s Short Lived Challenge to Labor and Environmental Exceptions in the European Union’s Generalized System of Preferences", American University International Law Review v. 18 no1333 (2003) p. 1333-1381

Abstract:
In this article, the author discusses the WTO’s Appellate Body ruling in United States – Import Prohibition of Certain Shrimp & Shrimp Products (“Shrimp/Turtle”), in which the WTO panel overruled a previous holding that Article XX prevents exporting countries from restricting imports on policy grounds. The discussion of Shrimp/Turtle occurs in the context of analyzing a claim brought by India against labor and environmental exceptions in the European Union’s Generalized System of Preferences. India’s claim specifically addressed limitations on market access that the EU imposed on the basis of labor, environmental, and drug enforcement concerns. The author contends that the new ruling created a new baseline for the labor and environment debate at the WTO. The author suggests that the general jurisprudential approach that the Body adopted in this case would likely impact future litigation concerning labor and environmental conditionality in GSP schemes. The conclusion presents various possible outcomes of a challenge to such preferences.

Subjects: Case Studies: Country-Specific, European Union, Generalized System of Preferences (GSP), India, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 3, Issue 1
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Jacoby, Sanford M. & Finkin, Matthew W., "Labor Mobility in a Federal System: The United States in Comparative Perspective", International Journal of Comparative Labour Law and Industrial Relations v. 20 no3 (2004) p. 313-337

Abstract:
This article compares trends in and patterns of labor mobility within the United States and the European Union. The authors begin with the common assumption that labor mobility is relatively low within the European Union and high in the United States. The authors claim that the legal system of public and private law within the Unites States facilitates labor mobility, whereas legal regulations in the European Union restrict mobility. The authors argue that mobility in the United States, while still greater than the European Union, has declined in response to long-term changes in concentration of populated areas, demographic characteristics, and social institutions. They examine the causes and determinants of mobility, asserting that in addition to legal differences, demographic characteristics, such as age, marital status, gender, and educational attainment often influence mobility. In conclusion, the authors caution against the assumption that the labor mobility gap between the European Union and the United States is as vast as common surmised. Rather, they claim, the mobility gap is ever changing in accordance with the influence of demographic characteristics and regulations governing labor markets. The authors also opine that while overall labor mobility in both regions are declining, there are advantages to residential stability, and that more mobility is not necessarily the most desired outcome.

Subjects: Case Studies: Country-Specific, European Union, Immigration, Labor Mobility
Newsletter: Vol 6, Issue 1
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James, Phil & Johnstone, Richard & Quinlan, Michael & Walters David, "Regulating Supply Chains to Improve Health and Safety ", Industrial Law Journal v. 36 (2007) p. 163-187

Abstract:
This article explores some of the health and safety implications of "externalization," meaning the shift of production from large, integrated multi-department firms to a series of typically smaller, undercapitalized suppliers and subcontractors which many observers have identified as a prominent feature of the new, "boundaryless" workplace. The authors suggest that there are both sound theoretical and empirical reasons for concluding that outsourcing and subcontracting supply chains reduces communication and seriously complicates overall risk management assessments, results in lower levels of supervision and training on health and safety issues, undercuts unions and other forms of collective workplace "voice" which typically play a crucial role in monitoring health and safety compliance, and limits resources available for investment in health and safety measures. They cite studies from various European Union countries indicating that the fatal and major injury rates in small firms are roughly double those of large and medium-sized firms. Studies of efforts to regulate supply chains in the United Kingdom, the United States and Australia suggest that such laws can have positive effect, but that they are often too limited in scope or underutilized. The authors advocate a targeted approach focusing specifically on those industries and sectors relying on "externalized" production and the increased use of temporary employment in hazardous working conditions. In their view, the "asymmetrical power relationships" between smaller enterprises and the larger organizations at the top of the supply chain make the latter well-suited for exerting positive influence and ensuring compliance with health and safety regulations throughout the supply chain through their ability to terminate or withhold contracts.

Subjects: Case Studies: Industry-Specific, European Union, Health and Safety, Outsourcing
Newsletter: Vol 6, Issue 5
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Kellerhals, Andreas & Trüten, Dirk, "The Creation of the European Company", Tulane European & Civil Law Forum no17 (2002) p. 83-112

Abstract:
Kellerhals and Truten present an overview of the European Company Law statute, which allows European companies to move their residence throughout member states without dissolution and liquidation. This provision effectuates the “freedom of establishment” guaranteed in article 43 of the EC treaty. It also sets up mechanisms for employee participation in European-wide companies . The author provides an overview of difficulties that have been encountered because some national actors feared that European rules would water down strong national systems of co-determination. The compromise that was reached avoids this controversial issue by relying on national law. The authors conclude with an overview of possible reasons why firms would or would not use the rules in future rounds of restructuring.

Subjects: Employee Participation and Works Councils, European Union
Newsletter: Vol 2, Issue 9
 
Kenner, Jeff, "Re-evaluating the Concept of Working Time: an Analysis of Recent Case Law", Industrial Relations Journal v. 35 no6 (November 2004) p. 588-602

Abstract:
This article focuses on the Working Time Directive adopted by the European Community to protect workers’ health and safety. The Directive provides that weekly working time must not exceed an average of 48 hours, including overtime. However, at the UK’s insistence, there is also a provision that allows a member state to “opt-out” of this 48-hour limit, undermining the whole scheme of the Directive. This article discusses the necessity of a full debate on the best method of reconciling the Directive with the “opt-out” provision in light of two recent decisions by the European Court of Justice in the SIMAP and Jaeger cases, in which the Court expanded the definition of “working time” to include time spent “on-call” by doctors if they are required to be present at the health care establishment. The author concludes by suggesting that the Directive provide more flexibility and autonomy for the individual in light of the continuously changing working environment.

Subjects: European Union, Health and Safety, Working Hours
Newsletter: Vol 4, Issue 3
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Kilkelly, Ursula, "Economic Exploitation of Children: A European Perspective", St. Louis University Public Law Review v. 22 no321 (2003) p. 321-358

Abstract:
In this article, the author provides a European perspective on the economic exploitation of children. First, the author details the applicable international and European child labor standards and surveys compliance with those standards in terms of ratification, implementation and enforcement. Second, the author considers the extent of economic exploitation in Western and Eastern Europe, providing data on the number of working children and detailing the types of exploitation these children face. Lastly, the author discusses the role that the European Union could play in the elimination of child labor in Europe and beyond, and evaluates the extent to which European states could impose standards on developing countries to achieve the elimination of child labor globally.

Subjects: Child Labor, European Union
Newsletter: Vol 3, Issue 5
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Koukiadaki, Aristea & Kretsos, Lefteris , "Opening Pandora’s Box: The Sovereign Debt Crisis and Labour Market Regulation in Greece", Industrial Law Journal v. 41 (September 2012) p. 276-304

Abstract:
In the years following the financial crisis in Greece and the destabilization of the Euro, Greece was forced to take loans from International Monetary Fund, the European Central Bank and the European Commission in order to remain in the Eurozone. To avoid a default of its economy, Greece was also forced to internally devalue its own currency. The loan agreements also required certain structural reforms, which were based on the premise that labor market regulation in Greece was responsible for the near-default and was a barrier to economic growth. Because of those reforms, the authors argue, essential and necessary features of the Greek labor law system have been eliminated or changed. These reforms, aimed at deregulating the labor market, have also reduced the need for and influence of traditional actors in the labor market, such as government commissions, labor unions, and proponents of social welfare. The authors argue that these reforms have failed to deliver the promised economic growth, and are leading to the deterioration of working and living conditions.

Subjects: Case Studies: Country-Specific, European Union, International Monetary Fund
Newsletter: Vol 13, Issue 1
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Kovács, Erika, "The Right to Strike in the European Social Charter", Comparative Labor Law & Policy Journal v. 26 (2005) p. 445-476

Abstract:
This article reviews the major case law of the European Committee of Social Rights (Committee) concerning the right to strike set forth in the European Social Charters of 1961 and 1996 (Charter). While the European Union does not purport to change the regulations of the right to strike of the respective member states, the Committee has declared the laws of some member states as either consistent with or contrary to the Charter's guarantee of the right to strike. The Committee has disagreed with various attempts to limit the right to strike, such Germany's laws permitting strikes only when aimed at concluding a collective bargaining agreement, the UK's prohibition on secondary action, and Malta's prohibition on recognitional striking. The Committee has also ruled on some procedural aspects of the right to strike, permitting laws requiring a cooling-off period, rejecting laws requiring mediation or arbitration prior to calling a strike, and refusing to permit ballot requirements that set fifty percent or more as a threshold for calling a strike. The Committee has reversed course several times on whether member states may restrict the right to call a strike to trade unions or whether unorganized workers may call a strike. The author notes that these repeated reversals stem in part from differing philosophical views about whether the right to strike is a collective right whose aim is to equalize the power of employees with that of their employers, or whether it is an individual right akin to a civil liberty. The reversals also stem from differences between member states about the nature of the individual employment contract. In countries such as Germany, France or Sweden, the individual employment contract is "suspended" during a strike with respect to the employee's obligation to work and the employer's obligation to pay wages, but remains in effect for all other purposes. The practical effect of this view is to protect striking workers from dismissal or other forms of reprisal. By contrast, in the United Kingdom, the employment contract is considered repudiated by striking workers, so that the employer owes no right to continued employment or right to reinstatement along seniority lines.

Subjects: Case Studies: Country-Specific, European Union, Secondary Strikes and Boycotts
Newsletter: Vol 6, Issue 3
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Krebber, Sebastian, "European Union Development: Status and Potential of the Regulation of Labor and Employment Law at the European Level", Comparative Labor Law & Policy Journal v. 30 no4 (Summer 2009) p. 875-903

Abstract:
According to Kreber, European regulation of employment and labor law is at a standstill. In the new century, regulation has gone from agreements enforced by directives, i.e., hard law, to soft law agreements in accordance with law in participating Member States. This regulatory dead end is, in large part, because employee protection has been extensively developed over the last two centuries by Member States. Hence, there is little room for EU-wide regulation because Member States, especially old ones, have already extensively regulated their own employees. Further, while one can identify various “pillars” of worker protection within EU-wide legislation and jurisprudence, these are often at odds with the EU’s “pillars” of market liberalization. These conflicts create an incoherency of any EU-wide vision for labor and employment regulation. Within this incoherency, however, there may be room for European regulation in enforcing its internal market concept and handling cross-border labor issues.

Subjects: Comparative Labor Law, Employment Law, European Union, Labor Mobility
Newsletter: Vol 9, Issue 10
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Kryvoi, Yaraslau, "Enforcing Labor Rights against Multinational Corporate Groups in Europe", Industrial Relations v. 46 no2 (2007) p. 366-386

Abstract:
This article addresses efforts by European states to hold multinational enterprises (MNEs) accountable for labor and human rights abuses and to enforce MNE adherence to labor standards in developing countries. The first section discusses efforts to implement and enforce international codes of conduct establishing norms for MNE corporate citizenship and behavior. The author examines both company-generated codes and regulatory efforts by the EU to regulate European corporations operating in developing countries. He argues that both codes of conduct and labor standards operate in a national context and are therefore not legally binding on MNEs. In the second and third sections, the author addresses extraterritorial uses of legal remedies by home states and concludes that possibilities for litigation depend whether a country adheres to a civil law tradition, with its flexible jurisdictional rules, or a common law tradition, with more rigid jurisdictional rules. He also argues that the concept of limited liability, which shields corporate parents from responsibility for the behavior of subsidiaries, hinders enforcement opportunities against MNEs. In sum, the paper advocates a combination international standards, state-based tactics, and campaigns by private actors to force nations to hold MNEs accountable in their home countries.

Subjects: Corporate Accountability, Corporate Codes of Conduct, European Union, Extraterritorial Application of Law
Newsletter: Vol 7, Issue 8
 
Lecomte, Franck, "Embedding Employment Rights in Europe", Columbia Journal of European Law v. 17 no1 (Spring 2011) p. 1-22

Abstract:
This article argues that the European Court of Justice (ECJ) is procedurally and substantively embedding employment rights in the European Union’s (EU) legal edifice. Until now, decision makers have tended to interpret the EU treaties as forming an “economic” European constitution privileging employer rights. But recently, in the case of 3F v. Commission, the ECJ ruled that a labor union had standing to contest a Danish law exempting third-country seamen employed by ship-owners registered in Denmark from income taxes. The author argues that this ruling expanded the rights of workers’ representatives to participate in deciding national employment policy. In addition, the ECJ has interpreted a treaty article stipulating the EU’s social goals of promoting employment and improved living and working conditions—Article 151 of the Treaty on the Function of the EU—as a substantive rule rather than programmatic statement. The author also argues that the new Article 9, which requires decision makers to consider certain social goals—including employment and education—in implementing EU policies, should enable decision makers to integrate fundamental social rights with the goals of economic efficiency and competitiveness in the EU’s legal edifice.

Subjects: Employment Law, European Union, Labor Rights as Human Rights
Newsletter: Vol 11, Issue 4
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Lerouge, Loďc, "Moral Harassment in the Workplace: French Law and European Perspectives", Comparative Labor Law & Policy Journal v. 32 (2010) p. 109-152

Abstract:
In the last decade, some European nations and the European Union have passed legislation to combat "moral harassment,"ť that is, bullying by one employee that damages the physical or mental health of another employee. This article compares judicial interpretations of such legislation in France, Belgium, and the European Union. The author concludes that, in all these jurisdictions, legislation against moral harassment has expanded legally-cognizable claims of employer harassment to include damage to workers' mental, not just physical, well-being. For example, France's highest court has imposed a relatively low burden for workers to establish a prima facie case and interpreted the moral harassment statute's vague penal provisions to impose criminal as well as civil sanctions on employers who act with intent to cause harm. In contrast, in Belgium, far fewer cases have been brought under its moral harassment statute and far fewer have resulted in victories for employees. Although France and Belgium's courts interpret their own nation's statutes by relying on European Parliament directives, the European Court of Justice has adopted a less protective stance than either of these nations and has questioned whether an employer has an obligation to operate a workplace free of moral harassment

Subjects: Anti-Discrimination, Case Studies: Country-Specific, European Union, Workplace Discrimination, Workplace Harassment
Newsletter: Vol 9, Issue 11
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Linan Nogueras, Diego J. & Hinojosa Martinez, Luis M., "Human Rights Conditionality in the External Trade of the European Union: Legal and Legitimacy Problems", Columbia Journal of European Law v. 7 no3 (Fall 2001) p. 307-336

Abstract:
This article discusses the relationship between respect for human rights and external trade in the European Union (EU), and focuses particularly on the issue of “conditionality” in international trade. It makes a distinction between positive and negative conditionality. Positive conditionality of the EU’s external trade refers to positive incentives and trade concessions that are offered to countries that commit themselves to respecting specific fundamental rights. In contrast, negative conditionality refers to withdrawal of unilateral trade concessions, economic countermeasures and trade sanctions as a reaction to violations of human rights in a third country. Negative conditionality faces the problem that it could be perceived as imperialist, Euro-centric, self-interested or protectionist. The article describes the development of the discourse on conditionality in the EU, and examines the application of conditionality in the external trade of EU. It concludes by suggesting that the problems associated with the legitimacy of negative conditionality could be overcome by a series of measures, such as incorporation of human rights as a fundamental principle of EU’s external policy, a clear framework for application of conditionality in external trade, and a certain amount of flexibility in application of human rights clauses.

Subjects: European Union
Newsletter: Vol 1, Issue 3
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Lo Faro, Antonio, "Fairness at Work? The Italian White Paper on Labor Market Reform", Industrial Law Journal v. 31 no2 (June 2002) p. 190-198

Abstract:
The author describes some labor reform proposals of the conservative Berlusconi government, outlined in its “Proposals for an Active Society and for Quality in Work,” released in October 2001. The Berlusconi proposals seek to delegate an increasing amount of labor regulation to the local levels; make it easier for employers to evade collective bargaining by transferring employees to new firms; exempt several groups of workers from protections against unfair dismissals; eliminate limitations on individually contracted ‘elasticity clauses’ that conflict with collective agreements; and revoke the right of individual workers to back out of such ‘elasticity clauses.’ The author argues that, although the proposals purport to build upon European Union concepts of ‘social dialog’ and ‘soft law,’ they will actually work in the opposite direction. He points out that they were developed without input from unions and with the intent of marginalizing them.

Subjects: Case Studies: Country-Specific, European Union
Newsletter: Vol 2, Issue 2
 
López-Pabón, María, "Immigration Law Spanish-Style: A Study of Spain's Normalizacion of Undocumented Workers", Georgetown Immigration Law Journal v. 21 (Summer 2007) p. 571-593

Abstract:
Lopez discusses Spain's recent efforts to regularize the status of undocumented workers by granting amnesty to those who met certain employment and residence requirements. Spain, like the U.S., has become a destination for immigrants despite border policing--particularly from Eastern Europe, South America, and Africa--due to unprecedented job growth. After providing a background on Spain's immigration laws and trends, including previous attempts to regularize the undocumented, Lopez discusses the poor working and living conditions and racial antagonism suffered by a Moroccan community in one Spanish city to demonstrate the perilous circumstances faced by the undocumented. The author then discusses the main features of the 2005 amnesty, which required employers to petition on behalf of workers; over 700,000 were given work and residence permits for up to three years. Lopez then addresses the criticisms of EU member countries that Spain was "fueling"more immigration by opening the proverbial "door" and undermining the EU's larger immigration scheme. Lopez dismisses the critiques as "more political than legal"through her analysis of applicable EU laws and treaties concluding that EU members states retain the ability to determine their own immigration matters. Regardless of the legality of Spain's program, Lopez takes Spain to task for instituting an inflexible short-term solution that 1) did not make legal immigration more accessible, 2) failed to capture all undocumented workers, 3) emphasized workers' outsider status and 4) tied workers' status to employers thereby rendering workers vulnerable to exploitation.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 2
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Neal, Alan C., "Corporate Social Responsibility: Governance Gain or Laissez-Faire Figleaf?", Comparative Labor Law & Policy Journal v. 29 no4 (Summer 2008) p. 459-474

Abstract:
In his primer on "corporate social responsibility" (CSR) in Europe, Neal questions whether the popular slogan CSR is more than simply an "incantation" of corporate governance rhetoric. Neal defines CSR as voluntary behavior by corporations beyond existing legal requirements that is associated with notions of economically, socially, and environmentally sustainable corporate operations. CSR is promoted in Europe by the European Commission, the Organisation for Economic Cooperation, and other international and quasi-governmental organizations on the grounds that it embodies the idea that corporations can profit while being responsive to stakeholders apart from their shareholders. The author argues to the contrary, that voluntary compliance by corporations is fraught, leading to the proliferation of reports by management consultants and auditors, but little in the way of meaningful benchmarks that can be used to measure changes in corporate activity. Furthermore, he cautions that licensing self-regulation in the absence of independent standards may in fact undermine existing international standards, such as those established by the ILO, by allowing companies more room to proclaim their business practices "accountable" or "responsible" without the sanction of traditional oversight or "hard" regulation. In sum, he argues for the development of regulatory approaches that preserve a distinction between the "economic" and "social" realms of society that CSR blurs.

Subjects: Corporate Governance, European Union, International Labour Organization (ILO), Organisation for Economic Cooperation and Development (OECD)
Newsletter: Vol 7, Issue 9
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Pagnattaro, Marisa Anne & Peirce, Ellen, "Between a Rock and a Hard Place: The Conflict Between U.S. Corporate Codes of Conduct and European Privacy and Work Laws", Berkeley Journal of Employment and Labor Law v. 28 no2 (2007) p. 375-428

Abstract:
This article examines the problems that U.S. corporations operating in the European Union ("EU") attempt to comply with the U.S. Sarbanes-Oxley Act ("SOX") and European privacy and employment laws. The whistleblowing provisions of SOX are designed to provide a confidential and anonymous way for employees to come forward with concerns about accounting or auditing practices without fear of retaliation. Many corporations have attempted to comply by establishing an anonymous hotline for whistleblowers. The EU, however, requires that its members adopt strict national laws that protect the personal data of employees, including the personal data communicated through these whistleblower hotlines. The result is that many U.S. corporations that have attempted to comply with SOX by implementing whistleblower systems have violated strict European privacy and employment laws. The author describes four cases in which U.S. corporations' whistleblowing systems were found by French and German courts to have violated their national privacy or employment laws. To address the potential conflict between SOX and the EU laws, the EU has issued a set of guidelines and recommendations. The author proposes ten specific recommendations that should be followed by U.S. corporations before implementing a whistleblowing system in the EU.

Subjects: Corporate Codes of Conduct, Employee Privacy, European Union
Newsletter: Vol 7, Issue 5
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Pati, Roza, "States' Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev v. Cyprus and Russia", Boston University International Law Journal v. 29 (Spring 2011) p. 79-142

Abstract:
This article discusses the recent case of Rantsev v. Cyprus and Russia in which the European Court of Human Rights defined human trafficking as a form of modern day slavery, and imposed positive obligations on states to prevent it. The author recounts how European laws and treaties have addressed human trafficking primarily through criminal law, while the United States has addressed trafficking through regulation of labor contracts. The author argues that both of these approaches are inadequate. Criminal law rarely reaches across national borders to address instances of human trafficking that are international in nature, and it does not provide redress for the victims. Regulation through private law better addresses victims’ needs by providing private remedies such as monetary damages and administrative remedies such as immigration status. The author argues that a human rights approach, taken by adherents to the Council of Europe Convention on Action Against Human Trafficking, is the preferred approach because it addresses trafficking as “modern day slavery,” and thus imposes heavy international criminal penalties, as well as positive and remedial obligations on signatory nations. The Ranstev case is significant because it marks the broadest adoption of the human rights approach from a criminal court. The author argues that activists should build off the Ranstev holding and push for countries to adopt a wide variety of positive preventative measures.

Subjects: European Union, Forced Labor, Slavery
Newsletter: Vol 12, Issue 9
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Prelipceanu, Raluca, "The New Migration Patterns of Educated Romanians to the EU: What Challenges for the Individuals and for the Nation-State", Romanian Journal of European Affairs v. 8 no4 (2008) p. 75-87

Abstract:
Recent years have seen a spike in migration of highly educated Eastern European professionals to European Union member countries. That migration has been driven by the draw of more financially remunerative work and has been facilitated by the immigration policies of European Union member countries which tend to favor highly skilled workers. This article explores the effects of that migration though a case study of highly skilled Romanian immigrants living in France. These immigrants face challenges with social and professional integration in France, but are able to maintain close ties to Romanian because of the rise of cheap travel and communication. The maintenance of these close ties in turn facilitates a convergence between the two cultures. This article concludes that the challenge now facing the Romanian government with respect to this migration is how to encourage the positive effects of this convergence throughout the Romanian economy.

Subjects: Case Studies: Country-Specific, Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 3
 
Royle, Tony, "Worker Representation Under Threat? The McDonald’s Corporation and the Effectiveness of Statutory Work Councils in Seven European Countries", Comparative Labor Law & Policy Journal v. 22 no3 (2001) p. 395-431

Abstract:
The article examines the effect of nationally regulated employee representation institutions on employment relations and employee outcomes at the McDonald s Corporation in seven European countries -- Germany, Austria, Denmark, France, The Netherlands, Spain and Italy. The case studies of McDonald's in each country are developed as follows. First, the author provides a general overview of the legal framework for the employee representation system in the country, emphasizing legal regulations as well as key institutions such as unions, works councils, and collective agreements. Second, the article describes the quantity and quality of the employee representation within and across McDonald's restaurants in the country. Finally, the author relates the unique national labor characteristics to McDonald's employment strategies. The author finds that in the majority of the countries, the McDonald's employees and unions are unable to utilize representation institutions afforded by law or by national collective agreements. The author describes various measures employed by the McDonald's Corporation to evade the nationally imposed employee representation obligations. The author contends that in an era of increased decentralization of the collective bargaining and legislative deregulation, entities of employee representation, such as works councils, serve an important function for ensuring that collective employee needs are voiced and met. The author concludes that existing labor legislation in all of the countries surveyed is deemed inadequate for achieving this purpose.

Subjects: Case Studies: Country-Specific, European Union
Newsletter: Vol 2, Issue 3
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Sciarra, Silvana, "The Evolution of Collective Bargaining: Observations on a Comparison in the Countries of the European Union", Comparative Labor Law & Policy Journal v. 29 (2007) p. 1-27

Abstract:
This article discusses the evolution of collective bargaining in several European countries. The author describes the variety of collective bargaining systems that exist in the European Union and tracks the evolution of these autonomous systems in a comparative vein. She describes four dimensions of comparative analysis of collective bargaining systems: freedom of association, the "collective status of the bargaining parties," the "normative function of collective agreements," and the "procedural function of collective agreements." The article examines the principle European regulatory schemes and collective bargaining systems along these dimensions. The article also divides the European schemes into systems in which (1) collective agreements take precede legislation - under this scheme, collective bargaining exerts positive influence on the legislature; (2) collective agreements are subject to legal measures extending their applicability' and (3) statute law and collective agreements are complementary sources of authority. The article concludes by contemplating the future implications of the current development of these various collective bargaining systems. It predicts that the future prospects of collective bargaining depend upon the development of transparent presumptions of industrial democracy. It is through such presumptions, the article predicts, that new innovative content can be developed, and new parties can be included in collective bargaining agreements.

Subjects: Collective Bargaining, European Union
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Sheikh, S., "Promoting Corporate Social Responsibility Within the European Union", International Company and Commercial Law Review v. 13 no4 (2002) p. 143-150

Abstract:
This paper discusses a recent green paper produced by the European Commission on "Corporate Social Responsibility" (CSR), which argued that, in theory, firms could enhance their competitiveness by going beyond their legal responsibilities in social and environmental matters. This paper sketches ways in which the EU could help with the implementation of CSR. It suggests that the commission's role would be spreading CSR throughout the member states by publicizing best practices, organizing networking between organizations engaged in CSR, and attempting to involve themselves in firms engaged in CSR activities. The author lists possible incentives for companies to do CSR (pressure from top management, employees, customers, competitors, and the local community) and potential benefits for companies from CSR, including good public relations and enhanced employee participation. The article proposes self-monitoring mechanisms, assesses CSR from the viewpoint of "stakeholder" interests (shareholders, customers, employees, creditors, wider public), and proposes a "structured dialog" incorporating these interests. It concludes that firms should not be "compelled" to engaged in CSR, but that voluntary participation would be more effective.

Subjects: Corporate Accountability, Corporate Codes of Conduct, European Union
Newsletter: Vol 2, Issue 6
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Stone, Katherine V.W., "To the Yukon and Beyond: Local Laborers in a Global Labor Market", Journal of Small and Emerging Business Law v. 3 no1 (Summer 1999) p. 93-130

Abstract:
This article explores the possibilities for effective protection of labor rights in the emerging global labor market. It explores existing forms of transnational labor regulation, including both hard regulation, i.e., regulation by state-centered institutions, and soft regulation, i.e., regulation through private actors responding to market forces. The author finds that existing regulatory approaches are inadequate to ensure that the global marketplace will offer adequate labor standards to its global workforce. She proposes new approaches to global labor regulation, approaches that blend hard and soft law by reshaping market forces and embedding them in a regulatory framework that is protective of core labor rights.

Subjects: Corporate Codes of Conduct, European Union, International Labour Organization (ILO), Labor Rights in General (Misc.), NAFTA/GATT, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 1, Issue 2
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Toth, Mariann Arany, "The Right To Dignity at Work: Reflections on Article 26 of the Revised European Social Charter", Comparative Labor Law & Policy Journal v. 29 (2008) p. 275-331

Abstract:
This article explores the emergence, contours, and impact of the right to dignity at work contained in Article Twenty-six of the Revised European Social Charter. It identifies modern conceptualizations of dignity at work in current legal scholarship and describes the historical development of the concept in Article Twenty-six. The author outlines the nature and content of this right, highlighting the ambiguities of Article Twenty-six’s right to dignity at work in light of potentially conflicting contractual obligations of the parties. The author then assesses the affect of Article Twenty-six’s right to dignity at work on the protection of European workers’ non-economic interests. The article concludes that although the conceptualization of Article Twenty-six’s right to dignity at work is narrow, it is nonetheless a significant step towards protecting workers’ non-economic interests in respect and dignity on the job.

Subjects: European Social Charter, European Union, Labor Rights in General (Misc.)
Newsletter: Vol 7, Issue 5
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Vigneau, Christophe, "Comparative Labor and Employment Law and Policy in the Next Quarter Century: Labor Law Between Changes and Continuity", Comparative Labor Law & Policy Journal v. 25 (Fall 2003) p. 129-141

Abstract:
This article predicts the future of labor law by analyzing the field’s “glorified past” and “troubled present.” In Part I, the author outlines the history of labor law in France. The author emphasizes that the field emerged through statutory law, to protect the worker in the employment relationship and to improve working conditions. In Part II, the author describes how the perception and the content of labor law have changed in present times. Specifically, the author argues that labor law reforms are no longer driven by the desire to improve the employee’s work life, but by the employer’s demand for flexible labor. Additionally, the author notes that the prominence of collective agreements as the source of French labor law promotes deregulation. In Part III, the author identifies particular challenges that labor law will face in the following decades: monitoring, organizing and moderating the effects of globalization; balancing the employer’s need for a flexible work force with the employee’s need for security; and guaranteeing and enforcing minimum labor standards, fundamental labor rights, and social rights for every individual.

Subjects: Case Studies: Country-Specific, European Union, Labor Rights in General (Misc.)
Newsletter: Vol 4, Issue 4
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Villiers, Charlotte, "Workers and Transnational Corporate Structures: Some Lessons from the BMW-Rover Case", International and Comparative Corporate Law Journal v. 3 no2 (2001) p. 271-297

Abstract:
Villiers provides a detailed case study of BMWs 2000 sale of its British subsidiary Rover to argue for an overhaul of formal European corporate structures in a way that strengthens the power of employees. Despite the parent companys operation within an open, stakeholder-orientedsystem of corporate governance, and despite the existence of a European Works Council in the firm, news of the sale and concomitant layoffs came as a surprise to British workers and managers, violating expectations by the British for transparency. The article describes at length the historical, industrial relations, and institutional backdrop of the sale, and argues that a combination of mismanagement, exclusion of the British from German codetermination forums, and weak EU-level rules are to blame. It concludes that the outrage of the British government and the mass demonstrations in Birmingham after BMWs announcement of the sale demonstrate that there is substantial political support exists for formal European rules that would protect jobs, and that the best solution would create a genuinely pluralistic structure of employee participation.

Subjects: European Union
Newsletter: Vol 2, Issue 9
 
Visser, Jelle, "More Holes in the Bucket: Twenty Years of European Integration and Organized Labor", Comparative Labor Law & Policy Journal v. 26 (Summer 2005) p. 477-521

Abstract:
This article seeks to answer the question of whether the role of intermediaries such as labor unions will be diminished or eliminated as the European Union continues to adapt to a globalized economy. The first section examines how changes in the labor market (e.g., decentralization of the workplace, heterogeneity of society), and diversification of employment statuses (e.g., temporary, short-term) have led to a new focus on choice by the individual worker and the firm, as opposed to equality in forming labor regulation. The second section explores the current status of labor unions by looking at their density (proportion of members), presence (proportion of workplaces where unions present), coverage (proportion of workplaces whose terms of employment influenced by collective bargaining agreements), and representation (recognition and presence). The author finds that although there has been a general decrease in density and presence, coverage and representation have remained stable. He argues that this shows that there is government as well as public support of unionism. The third section looks at how international competition has led Europe to customize labor regulations by allowing Member States, firms, and individuals to opt-out of common minimum standards. The author queries why international coordination between labor unions is not an adequate method of countering this trend. He concludes that the opt-out option is based on a new partnership approach that leaves labor unions out of the equation, to the detriment of all parties involved. The last section analyzes the limits of the current practice of 'voluntary' agreements and guidelines based on public recommendations and a consensus on 'best practice,' and questions whether these non-binding methods have any effect at all. The article concludes that labor union in the EU have been weakened as labor regulation has become less collective as well as less ambitious.

Subjects: Collective Bargaining, Contingent Work, European Union, Extraterritorial Application of Law, Labor Mobility, Labor Rights in General (Misc.)
Newsletter: Vol 5, Issue 5
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Waddington, Lisa, "When is it Reasonable for Europeans to be Confused: Understanding When a Disability Accommodation is 'Reasonable' from a Comparative Perspective", Comparative Labor Law & Policy Journal v. 29 no3 p. 317-333

Abstract:
This article surveys how different member states of the European Union responded to the challenge of the Employment Equality Directive of 2000. Article 5 of this legislation mandated "reasonable accommodation" of disabled individuals in national legal systems across the EU. The author discusses the many different interpretations of the term "reasonable" and compares the different steps several nations have taken to codify the mandate into law. The article concludes with suggestions for how courts across the EU can clarify the meaning of the term "reasonable accommodation" and implement the directive.

Subjects: Comparative Labor Law, Employment Law, European Union, Workplace Discrimination
Newsletter: Vol 7, Issue 10
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Weiss, Manfred, "Convergence and/or Divergence In Labor Law Systems?: A European Perspective", Comparative Labor Law & Policy Journal v. 28 (2007) p. 469-486

Abstract:
This article engages an ongoing debate among labor law scholars over whether the spread of globalization and neo-liberal ideology necessarily lead to a "convergence" or homogenization of labor standards whether that convergence is accomplished by a "race to the bottom," i.e., a general decrease in workers' rights. The author argues that European Community labor legislation has in fact contributed to a "convergence" among member States, but that it has often done so by setting minimum standards whose overall effect is to increase workers' rights with respect to workplace discrimination, health and safety standards, wage and hour laws and alternative forms of employment. The article also points out how EC legislation has promoted worker "voice" by requiring employers to provide information and consult with designated workers' representatives. On balance, the author sees these developments as contributing at least as much to the creation and expansion of workers' rights as to a downward spiraling "convergence" of labor standards.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Conflict of Laws, European Union
Newsletter: Vol 6, Issue 12
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