The New Foundations of Labour Law

Description

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