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  Comparative Labor Law
 
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 & Gahan, Peter & MItchell, Richard & Stewart, Andrew, "The Evolution of Labor Law in New Zealand: a Comparative Study of New Zealand, Australia, and Five Other Countries", Comparative Labor Law & Policy Journal v. 33 no1 (Fall 2011) p. 137-187

Abstract:
The authors compare protective labor legislation in New Zealand and Australia from 1970 to 2010 using a “leximetric” index assigning numerical values to variable sets measuring the regulation of (1) alternative employment contracts; (2) working time; (3) dismissal; (4) employee representation; and (5) industrial action. They conclude that the 1991 Employment Contracts Act caused New Zealand’s precipitous decline from above to below Australia’s protective level. By abolishing compulsory arbitration and the awards system, the Act weakened employee representation, industrial action, and the regulation of alternative contracts and working hours. The 2000 Employment Relations Act partially rectified the decline, causing New Zealand and Australia to converge. The authors also compare Australia, New Zealand, France, Germany, India, the United Kingdom, and the United States to test the “legal origins” hypothesis, which holds that a country’s legal origins—common law or civil code—is the primary factor determining its mode of market constitution and regulation. It predicts that countries with common law origins produce “free market” regulatory regimes with superior outcomes, towards which countries will converge. Contrary to the legal origins hypothesis, the authors found that limited convergence was due to political factors, particularly partial legislative reversals of neoliberal policies.

Subjects: Australia, Comparative Labor Law
Newsletter: Vol 11, Issue 7
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Anner, Mark, "The Impact of International Outsourcing on Unionization and Wages: Evidence From the Apparel Export Sector in Central America", Industrial and Labor Relations Review v. 64 no2 (January 2011) p. 305-322

Abstract:
This article interrogates the common industrial relations assumption that increased manufacturing jobs will create increased unionization rates and increased wages in developing countries. The author posits that the international segmentation of labor markets is one of the more significant factors in explaining lower union density and wages in export processing zones than in traditional, integrated manufacturing firms in Central America. Segmentation of the labor market forces small firms to compete for limited contracts and increases labor costs as a percentage of total costs, which combine to weaken labor’s ability to leverage organizing and wage gains. The author uses empirical data on union density, an examination of industrial restructuring, and an analysis of labor law schemes in the context of the outsourcing of manufacturing jobs to Honduras and El Salvador, to show that manufacturing jobs, when part of a segmented production model, do not have a positive impact on unionization and wage rates. The author’s analysis also suggests that more friendly labor regimes mitigate some of the pressures created by segmented markets and that re-centralization of production would provide some organizing advantages to labor.

Subjects: Comparative Labor Law
Newsletter: Vol 10, Issue 7
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Arthurs, H.W., "Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law" [GALS Working Paper Series #1-06]

Abstract:
This article describes the work of the Comparative Labor Law Group from 1965 to 1978 as a particular “moment” in the life of post-war labor law. That “moment” had its origin in the post-war compromise, and was waning by the late 1970s. It was a time in which there was widespread agreement that the purpose of labor law was to provide justice in the workplace and that workers should enjoy economic and employment security. The author shows that a crisis in political economy, legal institutions and legal theory undermined the consensus and with it, the underpinnings of traditional labor law and comparative labor law scholarship. The national labor law systems that were the focus of the consensus moment withered under the combined onslaught of technological change, the rise of the service sector, neo-liberal ideology, the restructuring of key industries, the expansion of knowledge-intensive work, the entrance of women and excluded groups into the mainstream workplace, and changes in the nature of work itself. In the wake of the demise of the national labor law systems, new sources of normative authority derived from private rule-making institutions have increased their governance role in work relationships. Such systems include corporate codes of conduct, the UN Global Compact, the institutions of trade regimes, and other “soft law” initiatives. The author calls for a new type of comparative labor law that compares these diverse, semi-autonomous systems of non-state normativity in order to develop a “new syntax, grammar, and vocabulary of comparativism which will help make them mutually intelligible.”

[Working Paper]
Subjects: Comparative Labor Law, Corporate Codes of Conduct, Trade Conditionality
Newsletter: Vol 5, Issue 10
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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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Batt, Rosemary & Nohara, Hiroatsu, "How Institutions and Business Strategies Affect Wages: A Cross-National Study of Call Centers", Industrial and Labor Relations Review v. 62 no4 (July 2009) p. 533-551

Abstract:
This article takes a look at wage dispersion and union wage differentials in call centers, a growing industry which represents a challenge to existing market rules and collective bargaining institutions. The study compares coordinated economies, liberal market economies, and emerging market economies. In general, the authors hypothesize that wage trends will follow the results of prior studies in other industries: that wage dispersion and union wage differentials will be highest in the most liberal economies (like the U.S.) and lowest in the most coordinated economies (like Ireland). This shows itself to be partially true: the U.S. indeed has high levels of wage dispersion and a high union wage differential, but from there the findings were not directly related to the level of market coordination and liberality. In fact, the study shows that business strategies of outsourcing and customer service segmentation also greatly affect wage trends. Further, the authors hypothesize that wage trends in emerging market economies will more closely mirror those in liberal market economies than coordinated economies. According to the authors' findings, this is indeed the case. Finally, the authors conclude with a list of potential limitations to their study methodology, as well as suggestions for areas of future research.

Subjects: Case Studies: Industry-Specific, Collective Bargaining, Comparative Labor Law, Outsourcing
Newsletter: Vol 11, Issue 5
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Bisom-Rapp, Susan & Frazer, Andrew & Sargeant, Malcom, "Decent Work, Older Workers and Vulnerability in the Economic Recession: A Comparative Study of Australia, the United Kingdom, and the United States", Employee Rights and Employment Policy Journal v. 15 (2011) p. 43-121

Abstract:
This article compares the situation of older workers in three liberal market economy nations: Australia, the UK, and the USA. The authors focus on three priorities drawn from the ILO’s decent work agenda that are especially important to older workers: employment promotion, social protection, and fundamental rights. In Australia, the global recession was mild, and laws prohibiting forced retirement, as well as effective enforcement of anti-discrimination laws further reduced the effects on older workers. In addition, laws that require decent living standards in retirement reduce the likelihood of older workers enduring exploitive working conditions. In contrast, the authors find that the UK struggles to enforce anti-discrimination measures and protections for the elderly and retired persons. In the UK, older workers increasingly work part time in undesirable positions, which signals that employment promotion, anti-discrimination measures, and social safety nets fall short for older workers. The authors find that the US was most affected by the recession, and older workers in the US have disproportionately been forced back into precarious work arrangements in order to support themselves. In addition, anti-discrimination measures fall far short, and a weak social safety net pushes older workers into potentially exploitive labor arrangements. Overall, the authors find that the effects of the recession on older workers were reduced in nations with regulation that directly addresses the needs of older workers.

Subjects: Comparative Labor Law, Employment Law, Workplace Discrimination
Newsletter: Vol 13, Issue 1
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Cameron, Craig, "Oxymoronic or Employer Logic? Preferred Hours Under the Fair Work Act", Australian Journal of International Law v. 25 no1 (March 2012) p. 43-64

Abstract:
In Australia, preferred hours clauses allow workers to elect to work, different or additional hours at their standard rate of pay. These clauses are controversial; many unions and politicians believe that the clauses undermine the Fair Work Act by relieving employers of the obligation to pay overtime. Employers counter that the Fair Work act acknowledges the need for flexibility so that business can run efficiently and individual workers can be accommodated. The author examines case law relating to preferred hours clauses and finds that employers often pressure workers into agreeing to them in order to save on labor costs. The author argues that this exploitation that is, on balance, more detrimental to the labor force as a whole than beneficial to the workers who request preferred hours arrangements. To preserve flexibility for workers who desire it, the author recommends that employers should be required to either show they have a genuine need for a preferred hours agreement, or that the employee engaged in the agreement genuinely needs or benefits from the arrangement.

Subjects: Australia, Case Studies: Country-Specific, Comparative Labor Law, Working Hours
 
Davidov, Guy, "Unbound: Some Comments on Israel's Judicially-Developed Labor Law", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 283-311

Abstract:
The author argues that in recent decades Israel’s National Labor Court has substantially limited managerial prerogative employer rights to make unilateral business changes that impact employees, including decisions that lead to employee dismissals. The Court has required employers to internalize the costs of many unilateral decisions, for instance, by paying damages to an employee after altering his regular work hours. Further, the Court has subjected many matters of managerial prerogative, such as outsourcing, to collective bargaining. It has also protected political strikes and imposed on employers a duty to bargain with, and provide information to, employee representatives. In the law governing dismissal, the Court has introduced new substantive and procedural limits to employers’ at-will authority, including a pre-dismissal hearing requirement and a prohibition against retaliatory dismissals when employees sue employers. Finally, the Court has strengthened wrongful dismissal remedies. Judges increasingly order reinstatement and impose large damages. The author suggests that judges’ conceptions of good policy have driven these developments. He notes they are inconsistent with the legal origins hypothesis that courts of common law provenance will develop the law towards greater “freedom of contract.”ť

Subjects: Case Studies: Country-Specific, Comparative Labor Law
Newsletter: Vol 11, Issue 12
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Deery, Stephen & Doellgast, Virginia & Holtgrewe, Ursula, "The Effects of National Institutions and Collective Bargaining Arrangements on Job Quality in Front-Line Service Workplaces", Industrial and Labor Relations Review v. 62 no4 (July 2009) p. 489-509

Abstract:
This article surveys and interprets working conditions in the call centers of five different coordinated market economies (Austria, Denmark, France, Germany, and Sweden) (CMEs) and three liberal market economies (Canada, the United States, and the United Kingdom) (LMEs). The authors' 1,734 surveys focus on three primary issues: 1) whether job quality varies systematically between coordinated and liberal economies; 2) to what extent collective bargaining institutions affect call center job quality; and 3) whether these institutional effects differ between in-house and outsourced call centers. Meanwhile, the authors limit their measure of job quality to three workplace phenomena: rate of dismissal, use of high-involvement work practices, and level of performance monitoring. Over all, the authors found that CME call centers have better working conditions than those in LME countries. However, there are cross-country anomalies that may be explained by national labor models. Further, worker organization helps to improve working conditions generally, with joint works council-union representation providing the best conditions. Finally, likely driven in part by the demands of contracting firms, outsourced call centers were found to have worse working conditions than in-house centers.

Subjects: Case Studies: Industry-Specific, Collective Bargaining, Comparative Labor Law, Employee Participation and Works Councils
Newsletter: Vol 10, Issue 7
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Estreicher, Samuel, "'Think Global, Act Local': Employee Representation in a World of Global Labor and Product Market Competition", Labor Lawyer v. 24 no3 (Winter 2009) p. 235-265

Abstract:
Trade unionism among private sector workers around the world is in decline. The author begins by describing four general explanations that theorists put forth for this decline, including the “Global Product and Labor Market Competition” explanation. Next, he describes two models of workplace representation “the Redistributive Bargaining Agent” model and the “Integrative Bargaining Agent”ť model and explains how these models interact to create distinct brands of unionism in different parts of the industrialized world. The author then describes how the global market and international competition have made it harder for workers to unionize and more difficult for nations to enact meaningful labor standards. Finally, the author posits that the best solution to this global labor crisis is for unions in each country to develop innovative policy solutions that give a voice to workers without harming employers’ economic performance.

Subjects: Comparative Labor Law, Employee Participation and Works Councils, Outsourcing, Trade Agreements
Newsletter: Vol 9, Issue 9
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Fahlbeck, Reinhold, "Comparative Labor Law - Quo Vadis?", Comparative Labor Law & Policy Journal v. 25 no7 (2003) p. 7-19

Abstract:
Drawing on three decades' experience, the author discusses benefits and challenges for future comparative legal researchers. He distinguishes between factual research on "what" questions and explorative research on "why" questions. Parts II and III elaborate the how/what distinction as between "mainstream" descriptive work and analytical research on interactions of foreign and domestic law. Both types of research suffer from an absence of a general method and a defined body of comparative law. However, both approaches provide the benefit of enhancing understanding of one's own country and uncovering hidden biases as well as possibilities. Section IV gives examples of "why" questions that are best answered comparatively, such as the question, "Why is US union density low?" Section V calls for a new multi-disciplinary method which understands industrial relations as parallel to other "sub-systems" (political, economic and cultural) in each country.

Subjects: Comparative Labor Law, Labor Rights in General (Misc.)
Newsletter: Vol 5, Issue 7
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Finkin, Matthew W., "Privatization of Wrongful Dismissal Protection in Comparative Perspective", Industrial Law Journal v. 37 (2008) p. 149-168

Abstract:
In Circuit City Stores, the Supreme Court ruled that it employers may impose mandatory pre-dispute arbitration of statutory employment claims. This article compares the privatization of employment law claims in the U.S. to the British, French, and German systems and shows that in each of those systems, such privatization would not be viable. The article explores the reasons for the U.S. exceptionalism in this arena including the American courts' desire to clear clogged dockets, the lassitude of the American legislature on the topic, and the rationale offered by public choice theory. In contrast, the article explains, the substitution of employer designed private remedies would be unthinkable in the British, French, and German systems. While each of these three systems is distinct in many aspects, they share three important features: (1) public tribunals are seen as inviolable fixtures of the legal culture, (2) legislation would be required to dismantle extant legal barriers to privatization of employment claims, and (3) despite awareness of the U.S. trend toward privatization, there has been no serious legislative interest in following that direction.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Privatization
Newsletter: Vol 7, Issue 7
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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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Frost, Anne C. & Kwon, Hyunji & van Jaarsveld, Danielle, "The Effects of Institutional and Organizational Characteristics on Work Force Flexibility: Evidence from Call Centers in Three Liberal Market Economies", Industrial and Labor Relations Review v. 62 no4 (July 2009) p. 573-599

Abstract:
In this article, the authors report on a study of the effects of legal, organizational and institutional differences between the U.S., U.K., and Canada on numerical and functional labor flexibility. In contrast to previous studies that focused on the manufacturing industry, here the focus is on call centers, where high turnover and non-standard work arrangements abound.The authors found higher rates of dismissal in the U.S., a trend that was negatively correlated with the use of temporary and part-time employment. The authors hypothesize that weaker lay-off protections in the U.S. result in more dismissals, while in the U.K. and Canada, employers adapt to stiffer job protection laws by using more temporary and part-time work. The authors also hypothesize that a strong union presence leads to fewer dismissals, but more non-standard employment arrangements, while outsourcing centers will lead to more of both. Their study confirms that union presence decreases lay-offs and non-standard arrangements and that outsourced centers lead to at least more part-time workers.The authors also find that numerical and functional flexibility are negatively related in the U.S. and Canada, but not in the U.K.

Subjects: Case Studies: Industry-Specific, Comparative Labor Law, Flexibilization
Newsletter: Vol 11, Issue 7
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Fudge, Judy, "Self-Employed Worker: A Canadian Perspective on the Scope of Employment Standards, Labor Rights, and Social Protection: The Good, the Bad, and the Ugly", Comparative Labor Law & Policy Journal v. 31 no2 (Winter 2010) p. 253-265

Abstract:
This article compares the legal frameworks for regulating self-employment in Spain and Canada. In Spain, the recently adopted Self-Employed Workers Statute attempts to guarantee four sets of rights for all self-employed workers: 1) basic rights, such as nondiscrimination and payment guarantees; 2) occupational health and safety rights; 3) collective bargaining rights, and; 4) social security rights. The author argue that Canada’s Federal Labor Law lags behind Spain in several respects. Importantly, only dependent contractors have collective bargaining rights in Canada. Both countries lack minimum wage and maximum hours of work laws for self-employed workers, and neither country has found a satisfactory way of distinguishing between dependent and independent contractors. The author concludes that while Spain has made progress, both Spain and Canada should do more to move beyond a classic conception of labor rights that focuses on a contract in a singular workplace.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Contingent Work
Newsletter: Vol 9, Issue 7
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Glynn, Timothy P., "A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders to Move Beyond (Artificial) Substantive Ones", International Journal of Comparative Labour Law and Industrial Relations v. 25 no1 (2009) p. 3-14

Abstract:
The author argues that employment law in the United States is inherently trans-substantive, in that it requires students and practitioners to master contract, tort, and administrative law and the interplay between these legal disciplines. However, missing from most American discussions of employment law are legal concepts prevalent in other countries, particularly the view that worker protections are a part of human rights law. The author also shows that how nations such as the United Kingdom acknowledge the interplay between worker-firm relations and corporate law. The author argues that the ‘compartmentalization’ of employment and corporate law in the United States impedes public-private ordering and encourages an incomplete understanding of both legal regimes. He argues that the study of international and comparative employment law would provide future practitioners with the opportunity to bridge the unnecessary divides between employment law and other fields.

Subjects: Comparative Labor Law, Flexibilization
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Godard, John, "Institutional Environments, Work and Human Resources Practices, and Unions: Canada versus England", Industrial and Labor Relations Review v. 62 (January 2009) p. 173-199

Abstract:
In this article, Godard uses statistical models to show that different workplace and human resources (HR) practices may have different repercussions for unions in two countries. Using the results of telephone surveys of hundreds of workers in Canada and England, Godard assesses the impact of a spectrum of workplace practices—from the traditional to “new” and “alternative” ones such as single-status policies or team-based work systems—on four factors: the expectation of reprisal for union organizing, the propensity to vote in favor of a union should a representational election be held, the existing presence of a union, and finally, the willingness to stand behind a union where one is recognized. His analysis yielded results that diverged both on the basis of workplace practice and national “institutional environment.” With regard to the latter, Godard argues that country-specific labor law and policy, and whether labor management relations tend to be adversarial or collaborative, matters. For example, while responses regarding pro-union propensity were strongly negative in a Canadian workplace with traditional HR practices, responses in similar workplaces in England were essentially tied between pro- and anti-union. Godard attributes the disparate results to the fact that unions in Canada have influenced the development of bureaucratic HR practices that tend to "substitute" for union representation, whereas in England unions have not had that effect. In sum, Godard advocates labor scholars more explicitly consider the role of institutional environments in organizing outcomes.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Employee Participation and Works Councils
Newsletter: Vol 8, Issue 6
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Goldin, Adrian, "Fairness at Work (The Authurs Report): An Argentinean Perspective", Comparative Labor Law & Policy Journal v. 29 no4 (2008) p. 533-546

Abstract:
This article begins by summarizing the Arthurs report on Federal Canadian employment law reform, and comparing it to Argentinean Mario Deveali's effort to define "Labor Law science" over fifty years ago. The author finds that the Arthurs Report is oriented toward values such as decency, the market economy, and flexicurity -- i.e., the reconciliation of worker security and flexibility in employment. He shows that Deveali's approach is more technical in nature but similar in goals to Arthurs. The author proposes that each country's application of flexicurity should be unique. In Argentina, the public's distaste of neoliberal policies in the 1990s necessitates a clear break from those policies before the principle of flexicurity could be legitimized. The author concludes by highlighting the potential for comparative research on employment and labor standards in Canada and Argentina. Both countries are federalist, but whereas Canadian provinces are empowered to create employment and labor laws, the Federal Government is charged with doing so in Argentina.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Contingent Work, Flexibilization, Labor Mobility
Newsletter: Vol 8, Issue 8
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Goldman, Alvin, "A Perspective on the Next Quarter Century of Comparative Labor Law", Comparative Labor Law & Policy Journal v. 25 no33 (2003) p. 33-42

Abstract:
Part I paints a picture of the global political economy of the next 25 years: population will increase in poor, authoritarian countries while the environment will be degraded. This will increase pressure for a global race to the bottom. Part II argues that wealthy nations will debate two approaches: (1) isolationism instituted through small regional alliances and trade; and (2) sacrificing some wealth to "ease the burden of poor nations" by shoring up international laws and strengthening global social standards. In support of the latter approach, the author asks if law can reduce poor people's suffering and ensure equitable resource distribution. He argues that the next generation of comparative labor law will address this question by including analysis of tax law, business associations, regulation of competition, education law, social security, trade and immigration. The author calls for a reinvigoration of global values from "delusions of consumerism" to equitable social institutions and conservation.

Subjects: Comparative Labor Law, Labor Rights in General (Misc.)
Newsletter: Vol 5, Issue 7
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Kelley, Thomas, "Unintended Consequences of Legal Westernization in Niger: Harming Contemporary Slaves by Reconceptualizing Property", American Journal of Comparative Law v. 56 (2008) p. 999-1034

Abstract:
This article describes how, in response to pressure from donor countries and international development experts, the Republic of Niger has adopted an aggressive program of legal "westernization" aimed at codifying and clarifying private property rights and how, in turn, these reforms have dramatically altered customary land tenure practices and undermined the ability of hereditary slaves to gain access to agricultural land. As it developed over the course of European colonization and formal decolonization in the 19th and 20th Centuries, slavery in Niger involved a complex set of mutual obligations between slaves and slaveholders, including providing slaves with limited access to agricultural land thereby allowing them to provide for their own livelihoods, so long as they paid annual tribute to their masters. Even as the government of Niger has adopted constitutional reforms formally abolishing slavery, the slaveholding practices have largely continued in Niger because of the inability of the central government to rule without the tacit support of noble landholding families in the countryside. With the introduction of western legal concepts, including private ownership in land, the government of Niger has sided with traditional nobles, including slaveholders, in determining that they, rather than the slaves occupying farm land, are the rightful "owners." The author argues that western legal reforms, including concepts of private property, should not be forced on developing countries without regard to actual local customs and practices on the target countries without producing unintended and often counterproductive results.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Forced Labor
Newsletter: Vol 7, Issue 10
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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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Kuhn, Peter & Riddell, Chris, "The Long-Term Effects of Unemployment Insurance: Evidence from New Brunswick and Maine 1940-1991", Industrial and Labor Relations Review v. 63 no2 (January 2010) p. 183-204

Abstract:
This article describes a study on unemployment insurance (UI) policies in the bordering regions of the Canadian province of New Brunswick and the United States’ state of Maine between 1940 and 1991. The two regions have similar ethnic makeup, population growth, and average income level but have divergent UI policies. New Brunswick’s UI system is federally-funded, and offered dramatically higher benefits than the US system during the sample period. The study looks to see if the differences in the programs results in different incidence of part-year work, defined as work of 1 to 39 weeks duration during a given year. It finds that in 1990, New Brunswick had 25.6% of working-age men working part year, compared to 12.6% in Maine, a difference that the authors find is largely attributable to the different UI policies. The authors conclude that generous UI programs can lead to greater participation in part-year work, but that its incentive pulls from both the highest (over 40 weeks) and lowest (0 weeks) brackets, resulting in only a modest effect on total labor supply.

Subjects: Comparative Labor Law, Labor Rights in General (Misc.), Unemployment Insurance
Newsletter: Vol 10, Issue 4
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McCallum, Ron, "American and Australian Labor Law and Differing Approaches to Employee Choice", ABA Journal of Labor & Employment Law v. 26 no2 (Winter 2011) p. 181-200

Abstract:
This article compares U.S. and Australian collective labor law through the lens of employee choice in order to identify the philosophical and legal differences between the two systems. The author argues that in Australia for most of the twentieth century the individual choices of employees have been subordinated to the collective social needs of the employees in the relevant industry. This is evidenced by Australian’s establishment of a system of compulsory conciliation and arbitration to settle labor disputes. After the extensive labor law deregulation of the last two decades, however, the choices of individual employees have been elevated above that of trade unions. By embedding collective bargaining rights in the individual worker, the role of trade unions has changed from that of acting as disputants in their own right to acting merely as bargaining agents for their members. The author argues that in the United States, by contrast, the preference for individual employee choice enshrined in the New Deal legislation of the 1930s has remained static. Trade unions in the U.S. are obliged to obtain majority support from the relevant employees. The author concludes that while the current Fair Work Act 2009 has enshrined collective bargaining as the centerpiece of labor relations public policy in Australia, the debate over the shape and scope of Labor laws has not yet concluded.

Subjects: Australia, Case Studies: Country-Specific, Comparative Labor Law
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Mitlacher, Lars W. & Burgess, John, "Temporary Agency Work in Germany and Australia: Contrasting Regulatory Regimes and Policy Changes", International Journal of Comparative Labour Law and Industrial Relations v. 23 no3 (2007) p. 401-431

Abstract:
This paper looks at two nations with very different regulatory schemes related to temporary agency employment: Germany and Australia. Both nations have experienced growth, in the last ten years, of both the number of agency workers and the number of temporary agencies. However, the percentage of Australia’s workforce that is employed by agencies is more than double that of Germany’s. The authors surmise that this difference may be due to a combination of factors. First, while Germany’s temporary workforce is generally low skilled and concentrated in the industrial sector, Australia’s agency workers have a wide range of skills and can be found in all sectors. Second, Germany’s agency employment industry is highly regulated, while Australia has very little regulation in this area. German law requires that companies seeking to hire agency workers obtain a license through the public employment agency. And third, the German temporary help industry is covered by collective agreements with equal pay and length-of-assignment provisions. In contrast, Australia has extremely limited minimum standards for temporary workers, and does not require companies to report on, let alone obtain permission for, the engagement of temporary workers. The authors weigh the costs and benefits of each system and ultimately determine that though temporary agency employment offers flexibility to businesses, that benefit is often outweighed by the cost to the workers, who are engaged in precarious and insecure employment arrangements. The authors recommend that Australia adopt some aspects of the German system, particularly the licensing requirement and collective agreements.

Subjects: Australia, Comparative Labor Law, Flexibilization
 
Pagnattaro, Marisa Anne, "Is Labor Really "Cheap" In China? Compliance with Labor and Employment Laws", San Diego International Law Journal v. 10 no2 (Spring 2009) p. 357-379

Abstract:
The author begins by surveying a range of new employment and labor laws in China that are having the effect of raising working conditions, increasing the transfer of knowledge from multinational companies to Chinese managers and workers, and increasing costs to employers in China. Importantly, the Labor Contract Law (LCL), which took effect in 2008, extends rights to employees across China who were hired in 2008 or later. The LCL requires written contracts with employees, a shortened maximum non-compete clause of two years, paid vacation leave, shorter probationary periods, increased restrictions on employer termination of employees, severance pay, and restrictions on mass layoffs. The author argues that the LCL has also emboldened the All-China Federation of Trade Unions to more actively represent the interests of employees, and organize workers at previously unorganized companies, such as Wal-Mart. The author proceeds to highlight the role of new employment discrimination and sexual harassment laws, which have especially benefitted female workers. The author then emphasizes regional governments’ increasing willingness to implement minimum wage laws that exceed the nation-wide minimum wage. Finally, the author discusses new workplace safety, worker privacy, and expedited employment and labor dispute arbitration that all favor workers. The author concludes that as workers’ rights improve in China, costs to employers will increase, and some foreign companies may rethink their choice to install or continue operations in China.

Subjects: Case Studies: Country-Specific, China, Comparative Labor Law
Newsletter: Vol 10, Issue 2
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Ratti, Luca, "Agency Work and the Idea of Dual Employership: A Comparative Perspective", Comparative Labor Law & Policy Journal v. 30 no4 (Summer 2009) p. 835-874

Abstract:
From the principle that every labor law system can gain practical insight by learning about others, this article focuses on how agency work operates in Italy and the United Kingdom. First, the article takes note of the rise of employment agencies, which treat workers as commodities and make it more difficult for the law to apply employment protections to a user firms’ conduct. While Italy has traditionally prohibited the use of labor intermediaries, a 1997 European Court of Justice (ECJ) decision required the country to allow such for agency work arrangements. In contrast, in Britain, firms’ choices about how to employ their workforce, including the use of agency work, has gone relatively unregulated. In recent years, both countries have added a complex system of licensing and regulations for the use of labor market intermediaries, while still attempting to adhere to their respective employment regulation traditions. Italy has created a systematic discipline for agency work that includes requirements that all employment contracts be written and that agency employers are held accountable for the health and safety of workers. Britain has largely deferred to the contracting and contracted firms but has extended coverage to them under its National Minimum Wage Act, and its Health and Safety at Work Act. Further, while the European Parliament approved a directive in 2008 which introduced the principle of equal treatment between agency workers and workers directly employed by the user firm, divergence between British and Italian system of agency work regulation continues.

Subjects: Comparative Labor Law, Contingent Work, Employment Law
Newsletter: Vol 10, Issue 9
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Rittich, Kerry, "Transnationalizing the Values and Assumptions of American Labor Law", Buffalo Law Journal v. 57 no3 (May 2009) p. 803-811

Abstract:
The author proposes that three global trends in labor law are central to understanding efforts to improve transnational labor standards. First, North American labor law’s ambivalent stance regarding workers’ organization has spread around the world. Second, despite its ambivalence toward mobilization, labor law is increasingly central to broader concerns about social justice and democracy. Third, domestic labor law remains important, despite global economic integration. The author concludes by hypothesizing that the financial crisis may have increased the likelihood that policy makers will adopt improved labor standards because it is now clear that widening income disparity and economic insecurity put the entire economy at risk.

Subjects: Comparative Labor Law
Newsletter: Vol 9, Issue 6
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Ruiz Cameron, Christopher David, "The Borders of Collective Representation: Comparing the Rights of Undocumented Workers to Organize under United States and International Labor Standards", University of San Francisco Law Review v. 44 no2 (Fall 2009) p. 431-453

Abstract:
The author compares the U.S. approach to collective bargaining rights of transborder workers as articulated in the U.S. Supreme Court opinion in Hoffman Plastics Compounds, Inc. v. National Labor Relations Board (“Hoffman Plastics”) with the standards set forth in several international labor rights instruments. He uses standards set forth in international human rights instruments, ILO Conventions, regional human rights instruments, labor rights clauses in free trade agreements, and European Union directives to argue that there is an international consensus that freedom of association is a fundamental right for all workers, regardless of citizenship status. In Part I, the author considers whether undocumented workers in the United States are considered “employees” under the National Labor Relations Act, notes the Supreme Court’s conflicting views on the issue, and opines that Hoffman Plastics is “not the only way” to consider the rights of undocumented workers in the U.S. In Part II, he compares the U.S. Supreme Court’s treatment of undocumented workers with the more inclusive definition of “employee” under international labor standards found in the various international instruments. In conclusion, the author argues that U.S. courts should limit Hoffman Plastics to its narrow facts and reinterpret the NLRA to conform to international labor principles by including undocumented workers as “employees” who are entitled to the full rights and remedies guaranteed by law.

Subjects: Comparative Labor Law, Immigration, Undocumented Workers
Newsletter: Vol 10, Issue 4
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Thomas, Chantal, "Convergences and Divergences in International Legal Norms on Migrant Labor", Comparative Labor Law & Policy Journal v. 32 no2 (Winter 2011) p. 405-441

Abstract:
This article examines international legal regimes governing migrant labor. Through an investigation of the international regulatory terrain affecting migrant labor, the author posits that, even where disparate treaties converge doctrinally, they may diverge normatively. Section I examines convergence and divergence around specific norms and principles through a discussion of rules affecting migrant workers from different realms of international law - human rights, trade, labor, and criminal law. The author applies this discussion to four hypothetical instances of inter-treaty conflict on migrant workers' rights. Section II elucidates the concern that specialized law-making and institution-building results in conflicts between rule-systems, deviating institutional practices, and a possible loss of overall perspective on the law. For example, with regard to international treaties dealing with crime, the author explains that while there is no necessary doctrinal conflict between such treaties and their counterparts in human rights insofar as migrant workers are concerned, such treaties may represent a normative divergence because they may reinforce an association of migration with dangerous and threatening criminal activity. In conclusion, the author highlights various commentators' responses to the plural legalities of international migration, and cautions that the fragmentation of international law - manifested in the emergence of different rule systems within human rights, labor, trade, and crime regimes - may have dangerous results for migrant workers.

Subjects: Comparative Labor Law, Immigration, Undocumented Workers
Newsletter: Vol 10, Issue 6
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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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