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Summary Comparative Labour Law Literature (Book Labour and the Law in Europe)
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Summary of the relevant chapters for Comparative Labour Law from the book Labour and the Law in Europe by Antoine Jacobs.
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NOTES BY THE LECUTRE SLIDE IN INDUSTRIAL LAW
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Literature Comparative Labour LawChapter 1: Introduction
The EU looks as follows: 80% of Labour Law and Social Security Law is designed by Member
States, and 20% is designed by the EU altogether.
In The US it looks as follows: 80% of Labour Law and Social Security Law is designed by the
Nation and 20% is designed by the States independently.
History of Labour Law:
- Labour Law exists since the Roman times. The contract of employment was written for the
first time and in the Middle Ages there was an equivalent of the modern labour law and
social security we see today.
- Around 1800, the Enlightenment spread over Europe by the French Revolution (1789), and
the idea of freedom of trade entered. Much progress was made in technology and health
conditions. Workers started to strike against bad circumstances. From that moment on acts
were adopted prohibiting child labour and so on.
- During the Industrial Revolution England formed the cradle of modern labour law and
countries such as the Netherlands, Germany, Belgium and France followed suit.
- Under dictatorial developments the course of things changed dramatically.
- Then after WW2, labour law and social security were further developed in all EU member
states with statutes, dismissal protection and paid holidays.
- Around 1980 labour law and social security underwent a transformation and consolidation.
This means that the existing things were made stronger and more detailed, more powerful.
And nowadays the laws have to deal with new socio-economic environments characterised
by globalization and a new world of work.
New forms of employment have emerged as a New World of Work:
- Part-time work
- Freelance work
- Labour on call
- Outsourcing
- Temporary agency work
- Teleworking
The Anglo-Saxon model = Emphasis is on a proper functioning of the laws of the market. The
protection of and the care for the entire population, including employees is minimal, leaving
much to individuals tehmselves.
The Rhineland model = Statutory protection of and the care for the population is on a higher
level, where employees are concerned.
The Nordic model = The protection and care for the entire population is on a high level too,
but at the same time the system is geared towards a high degree of participation on the
labour market.
,The Central European model = The relative poverty under the former communist systems
has not yet been pushed back. Industrial relations are still immature and unbalanced.
Differences between above models occur because of:
- Economic growth rates
- Demographics such as ages, levels of education and work ethic
- Religion
- Resources
- History
Schutzfunktion = Protection of workers is because of ongelijkheidscompensatie. That is why
labour law exists.
Ordnungsfunktion = Regulation of the law. We need to organize it in some way.
Purpose of social security law = To guarantee a decent income to people who cannot earn
one.
Sources of labour law:
- Contract of employment
- Legislation
- Collective agreements
- Other documents
- Managerial prerogatives
- Custom and practice
- The courts
- Constitutional law
- International law
The hierarchy of sources in law in the EU:
- Statutes (the code/law) have priority over contracts
- Collective agreements have priority over individual employment contract, provided that the
individual contract is subject to the collective agreement.
Sometimes, a higher source allows lower sources to deviate from it to the extent that they
can determine working conditions which are unfavorable to workers.
Chapter 2: The role of international and European labour law and social
security law in the EU member states
In Europe Labour law and Social Security is still shaped at the national level. Nevertheless,
the impact of rules stemming from international and European sources is steadily growing.
Two global international sources that may influence labour law and social security law are
1) the United Nations (UN) in New York and
2) the International Labour Law Organization (ILO) In Geneva.
, United Nations (UN) = The United Nations is an intergovernmental organization tasked with
maintaining international peace and security, developing friendly relations among nations,
achieving international co-operation, and being a centre for harmonizing the actions of
nations. They are based in New York and were founded in 1945 in San Francisco, California.
They do not issue many direct rules for labour law because they have adopted the ILO
specially to do this.
International Labour Organization (ILO) = The International Labour Organization is a United
Nations agency whose mandate is to advance social justice and promote decent work by
setting international labour law standards. It was the first specialised agency of the UN in
1945. It is based in Geneva, Switserland and was formed in 1919.
Until now, it has issued around 200 Conventions on most aspects of labour law and social
policy. Examples of those are:
- Freedom of association for trade union purposes
- Forced labour
- Discrimination
- Employment policies
- Wages
- Health and safety
- Work of women
Organization of Economic Co-operation and Development (OECD) = The Organisation for
Economic Co-operation and Development is an intergovernmental economic organisation
with 36 member countries, founded in 1961 to stimulate economic progress and world
trade. The headquarters are in Paris, France. This organization issues many studies and
advisory reports to member governments.
In Europe there are two frameworks for the development of European Labour Law:
1) The Council of Europe in Strasbourg (France)
2) The European Community/European Union in Brussels
Council of Europe = A much more comprehensive organization than the EU. They have 47
members, whereas the EU only has only 28 members. However, when CoE makes decisions,
they’re not binding to all members and when the EU does that these rules do apply to all the
members directly. Therefore, it is not the most ideal forum for issuing detailed labour and
social security standards.
European Union = A supranational organization which has the power to issue legislative acts
that bind the member states.
International and European norms and sources have an influence on national labour law
and social security laws:
1) Indirect and voluntary impact; this means EU member states are free to either ratify
or refuse to ratify these rules
2) Immediate and mandatory impact
3) Soft law; this means when there are produced documents without a legally binding
character such as recommendations, resolutions or codes.
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