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European Judicial Protection Notes
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Lecture notes of 8 pages for the course Law at RuG
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Chapter 10- Labour LawLabour law emerged as a result of the industrial revolution.
Industrial revolution: Started in England, spread throughout Western Europe and North
America and Australia. Before this: labour was either involuntary (slavery) or very loosely
regulated.
It became easier to produce things on a larger scale, prices reduced, and things
became more accessible. This led to further innovations in technology and living
standards increased.
Social consequences of industrial revolution:
- Rapid urbanization: People moved from countryside to cities leading to
overcrowding and reduced living standards (slums).
- Loss of jobs due to machines, profits kept increasing resulting in a growing
income gap between the working class and owners.
- Environmental damage and pollution.
Positives: Led to an increase in political influence of working class which led to the
wellbeing of workers being addressed in law.
Exploitation of labour: Western companies have been moving production of their products to
industrializing countries in Asia to take advantage of the more flexible labour standards (lower wages,
longer hours to work, less security, poorer working conditions).
International Labour Law:
Following WW2, conventions/treaties have been developed to enforce international
labour standards at a global and regional level that are then emulated by domestic
labour laws.
Global level:
International Labour Organization (ILO) is a specialized agency aimed at
protecting and promoting labour rights and acts as source for domestic
labour standards. It also offers advice/expertise regarding labour law to
countries and organizations in the implementation of labour laws.
E.g., Bangladesh accord- improve position and safety of employees in garment industry.
Other examples: International Covenant on Economic, Social and Cultural
Rights (IVCESCR) - UN Body.
Regional level: Labour standards adopted by regional human right bodies/governments.
(E.g. American San Salvador Protocol, the African Banjul Charter, the Arab Charter on Human
Rights and the European Social Charter).
, Examples of Labour rights (From European Social Charter, inspired by ILO):
a) Right to safe and healthy working conditions
b) Right to fair renumeration (pay)
c) Right to organize
d) Right to collective bargaining and to strike
e) Right to social security etc.
Note: Legal effect of such treaties are in the hands of the Member States. Procedures/rules
aren’t always binding, enforceable or effective.
At national level: Up to courts to adopt and enforce such rights.
Islamic countries: Different labour laws based on Islamic principles such as principle of good
employership (treating employee as family), right to share in a company’s profit etc., right to fair
wage etc.
Kafala system: Law based on Islamic Jurisprudence requiring employers in the Middle East to
sponsor migrant laborers (employees).
Proper Labour Conditions:
Countries must adopt certain rules and measures to protect the interests of
employees.
Nature of Labour Contracts
It is important to distinguish and define the nature of the labour relation (legal
employment relation).
a) Employment is a special contract that gives access to certain guarantees
and stability for the employee. E.g., maternity leave, sick leave, pension,
social benefits, paid holidays etc.
b) Self-employed workers: Not all forms of hiring labour are in the form of an
employee (via an employment contract). E.g., contractors, freelancers,
temporary workers, casual workers) - hired for task, for a short period,
and/or as an external employee.
If they are not an employee, they don’t enjoy the ‘special
status’ either.
This distinction is a thin line and not as defined or clear-cut sometimes.
German (civil) law:
German law divides/categorizes workers into 4 types:
i) Employee:
, Someone obliged to work for an employer i.e., hierarchically under
employer and follows the employer’s directions.
Based on a private contract under the employer (personal
subordination).
The employee is an integrated person in the organization.
ii) Employee-like person:
The worker is free to determine his work within organization i.e., not
integrated in the employer’s organization.
No hierarchy between the worker and employer.
The worker still depends on the employer; work 50 percent or more of the
time for the same organization.
Aren’t as protected as an employee: Rules on dismissal doesn’t apply to
them, so they can get easily fired. (Must give notice, firing/severance
package for normal employees).
iii) Executive Staff Member:
Similar kind of work from employee but has a managerial function and thus
act as an employer.
So, the protection for employees only partly applies to them. E.g., School
principal.
iv) Self-employed person:
No hierarchical relation to employer
Free to organize their activities on their own accord.
They work to complete specific job, task or period and move on to the
next. I.e., not economically dependent on only one employer.
Hardly any protection.
Common law:
A distinction is made between contracts of service and contracts
for
service.
Contracts of service: Employee contract.
Contracts for service: Labour done by Self-employed person.
, Not always easy to make distinction if labour relations not properly
defined.
To make this distinction between the two, court can apply one
of three tests(depending on case at hand):
i) Control Test: Assesses the extent to which the
employer has control of over employee over day to day
activities.
When not to use: if employees have more freedom
to determine their daily activities, difficult to assess
employee’s status properly.
ii) Integration Test: Assesses the extent to which the
worker forms an integral part of the employer’s
organization (company) e.g. an accountant working for
40 hours a week in bank permanently passes test, but
an accountant who works as an advisor irregularly
wont.
When to use: Useful if the job involves freedom in
day-to-day life but works permanently. If
contractual status unclear, would help clear out that
they’re an employee.
When not to use: For jobs like subcontractors who
work on larger projects (where there is a
hierarchical relation with a superior in the
organization and they work in organization on a
more permanent basis, but they are not an
employee).
iii) Economic Reality Test: Financial risks of performing
the job examined from the perspective of both the
organization and the worker.
In practice, this test might include elements of the
other two tests. Financial risks involve the nature of
their work, so relationship with employer etc. also
relevant.
E.g., Jo owns his own truck but uses the concrete
company’s equipment. He is self-employed but has their
logo on his truck and uniform. So, not as easy to
determine whether he is an employee or not. But the
decisive elements are that he enjoys a degree of freedom
in work (set own hours, holidays) i.e., the control test and
more that the financial risk lies on him though (he owns
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