Ron McCallum: McCallum’s top workplace relations cases: labour law and the employment relationship as defined by case law

2013 ◽  
Vol 36 (1) ◽  
pp. 237-241
Author(s):  
Lee Jia Ping ◽  
Kamal Halili Hassan
Keyword(s):  
Case Law ◽  
Employment Relationship ◽  
Labour Law ◽  
Workplace Relations

THE RULES OF REMUNERATION OF THE WORKER COOPERATIVE MEMBERS

2021 ◽  
Vol specjalny II (XXI) ◽  
pp. 377-386
Author(s):  
Tomasz Duraj
Keyword(s):  
Employment Relationship ◽  
Labour Law ◽  
The Subject ◽  
The Right ◽  
Worker Cooperative ◽  
Economic Risks

The subject of the foregoing study is an analysis of the specific rules for the remuneration of members of a worker cooperative who, by contributing to the organisation, participate in the economic risks associated with its operation. Each member of a worker cooperative is guaranteed the right to participate in the profit (balance surplus) of the cooperative, but at the same time participates in covering its losses up to the amount of the declared contribution. This special status of members of a worker cooperative, together with the obligation to work for that organisation on the basis of an employment relationship, has an impact on the remuneration of that category of workers. This can be seen in the structure of their remuneration, which consists of the current salary and the share of the balance surplus to be distributed among the members in accordance with the rules laid down in the statutes. Moreover, the current salary of a member of a worker cooperative and his share of the balance surplus are under protection provided by labour law for the remuneration of the employees.

scholarly journals COLLECTIVE LABOUR RIGHTS AS THE PRINCIPLES OF THE EUROPEAN UNION LABOUR LAW

2019 ◽  
pp. 43-46
Author(s):  
O. M. Rym
Keyword(s):  
European Union ◽  
Collective Bargaining ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Labour Law ◽  
Member States ◽  
Labour Rights ◽  
Social Partners ◽  
The Right

The article deals with certain aspects of collective labour rights in the European Union. Prerequisites and procedure of this rights guaranting as general principles of EU law are analyzed and their content is characterized. It is emphasized that such legal establishing took place somewhat haphazardly, both at the level of the acts of primary and secondary law of the European Union and in the case law. As a result, there is no single position on the spectrum of collective labour rights as principles of EU labor law. The author focuses on significant changes in the understanding of the necessity of cooperation of social partners and the extension of their interaction at the supranational level. It is under the responsibility of the European Commission to promote cooperation between Member States and to facilitate coordination of their activities in the field of the right of association and collective bargaining between employers and employees. The article clarifies the content of collective labour rights as general principles of EU law on the basis of EU legal acts, the case law of the Court of Justice of the European Union, as well as the scientific works of domestic and foreign scholars. It is noted that the system of collective labour rights, as general principles of EU labour law, consists of the right of collective bargaining and collective action, the right of employees to information and consultation within the enterprise, as well as the freedom of assembly and association. It is concluded that the necessity of cooperation between the social partners is recognized as one of the foundations of EU labour law. Herewith appropriate interaction is ensured through the normative-legal consolidation of collective labour rights and procedures for their implementation. After all, European Union legal acts allow employees and employers’ representatives to play an active role in regulating labour legal relations. For example, Member States may instruct employers and employees, upon their joint request, to implement Council directives or decisions. In addition, many directives contain warnings about the possibility of derogating from their provisions through the adoption of a collective agreement.

De werkrechtersraad van beroep van Gent

Pro Memorie ◽  
2021 ◽  
Vol 23 (2) ◽  
pp. 149-179
Author(s):  
Jasper Van de Woestijne
Keyword(s):  
Case Law ◽  
Labour Law ◽  
Content Type ◽  
Administration Of Justice ◽  
Labour Legislation

Abstract In Belgium, the administration of justice with regard to labour law is in the hands of specialised courts, staffed by a combination of professional and lay judges. This has historical roots. An important step in the evolution of these courts is the establishment of the ‘werkrechtersraden van beroep’ (‘conseils de prud’hommes d’appel’). From their creation in 1913 until their reform in 1967, these councils were the highest authority in Belgium to settle disputes on the work floor and consequently the highest interpreter of labour legislation. The institution constantly balanced on the remarkable interface between law and labour. In this contribution, a fact check is carried out to see how this balance worked in practice. An exceptional episode are the periods in which this system was placed under tension. Therefore, this contribution pays special attention to the case law pronounced by the werkrechtersraad van beroep of Ghent in the crisis-ridden period 1935-1950.

THE EMPLOYER’S RISK PRINCIPLE

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 83-91
Author(s):  
Łukasz Pisarczyk
Keyword(s):  
Employment Relationship ◽  
Strict Sense ◽  
Labour Law ◽  
Personal Risk ◽  
Normative Principle ◽  
Risk Principle ◽  
Application Scope

The article discusses the employer’s risk as a principle of labour law. The idea of employer’s risk is that the employer bears the consequences of obstacles in the performance of the employment relationship that it has not caused. The author distinguishes the obstacles: not related (the employer’s risk in a strict sense) and related to the employee (personal risk). As a rule, the employer bears the risk of circumstances not related to the employee. The nature as well as the application scope of regulations allow to formulate a normative principle of the labour law. At the same time the employer bears the risk of the obstacles related to the employee only in cases specified in the labour law, both: statutory standards as well as autonomous provisions. As a result, the personal risk of the employer cannot be considered to be a normative principle of the labour law.

The Contractualisation of Labour Law

2018 ◽  
pp. 33-47
Author(s):  
John Gardner
Keyword(s):  
Common Law ◽  
Employment Relationship ◽  
Labour Law ◽  
Work Relations ◽  
Contractual Relationship ◽  
The World ◽  
British Labour ◽  
The Common ◽  
The Law ◽  
Main Ideas

This chapter explores the idea that labour law rests on ‘a contractual foundation’, and the idea that work relations today are ever more ‘contractualised’. Section 1 lays out some essentials of British labour law and its connections with the common law of contract. Section 2 explains what contractualisation is, not yet focusing attention on the specific context of labour law. The main claims are that contract is not a specifically legal device, and that contractualisation is therefore not a specifically legal process, even when the law is complicit in it. Section 3 shifts attention to the world of work, especially the employment relationship. Here the main ideas are that the employment relationship is not (apart from the law) a contractual relationship, and that all the norms of the employment relationship cannot therefore be captured adequately in a contract, legally binding or otherwise. Section 4 illustrates the latter point by focusing on the rationale and the limits of the employer’s authority over the employee. A contractual rationale yields the wrong limits. It gives its blessing to authoritarian work regimes and lends credence to the miserable view that work is there to pay for the life of the worker without forming part of that life. Throughout the chapter there are intimations of the conclusion drawn in section 5: that contractualisation, in the labour market at least, is a process that lovers of freedom, as well as lovers of self-realisation, should resist—or rather, should have resisted while they still had the chance.

scholarly journals Ugovorni odnosi u vezi s privremenim agencijskim radom

2020 ◽  
Vol 40 (3) ◽  
pp. 1101-1127
Author(s):  
Darja Senčur Peček ◽  
Sandra Laleta ◽  
Karla Kotulovski
Keyword(s):  
Good Practice ◽  
Employment Relationship ◽  
Labour Law ◽  
Legal Subject ◽  
Contractual Relationship ◽  
Temporary Agency Work ◽  
Contractual Relationships ◽  
Workplace Rights ◽  
Labour Legislation ◽  
The Relationship

This article analyses the contractual relationships concerning temporary agency work: specificities of the employment contract between the agency (as an employer) and worker; contractual relationship between agency and the user undertaking and the factual relationship between the user and agency workers. Concerning the employment relationship between the agency and worker, the analysis focuses on the fact that only legal subject that fulfils specific conditions can operate as an agency; further, on the duration of the employment relationship, the workplace, rights and the termination of the employment relationship. Despite the fact that the agency and the user conclude the commercial contract, those contractual parties are limited by the labour law rules that are the object of the analysis in this article. Thirdly, the article deals with the relationship between the agency worker and user, that is not formalized by the conclusion of the contract, but regulated by the labour legislation, that prescribes the workers’ rights and its impact on the user’s stable workers’ rights. The authors analyse the mentioned contractual relationships as regulated in Croatian and Slovenian labour law, as well as by EU law, giving the examples of good practice used in some European countries.

Tätigkeitsbezug als Sachgrund der Befristung des Arbeitsvertrags

2020 ◽  
Author(s):  
Christian Roth
Keyword(s):  
German Law ◽  
Case Law ◽  
Eu Law ◽  
Labour Law ◽  
Assessment Criterion ◽  
Employment Contracts ◽  
Substantial Modification ◽  
Time Work ◽  
Part Time ◽  
Part Time Work

Based on a new, comprehensive approach, this work places the objective reasons for fixed-term employment contracts in German labour law under intense scrutiny. As a result of the author considering ECJ case law in this respect, a legally certain assessment criterion for every potential objective reason arises: their specific relation to the occupational context. By comparing this criterion with German law (§ 14 (1) of the TzBfG, Germany’s law on part-time work and fixed-term employment) and the case law in this respect, the author reveals the selective need for substantial modification of the law in question. He points out ways and means to deal with those necessary modifications to ensure that the objective reasons for fixed-term employment contracts in German law conform with EU law.

Freedom to conduct a business and EU labour law

2018 ◽  
Vol 14 (1) ◽  
pp. 172-190 ◽  
Author(s):  
Stefano Giubboni
Keyword(s):  
Case Law ◽  
Alternative Interpretation ◽  
Fundamental Rights ◽  
Labour Law ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu ◽  
Social Europe

Critical-contextual analysis of case law of the European Court of Justice on employers’ contractual freedom – Fundamental right to be immunised against the alleged disproportional protection enjoyed by employees – Progressive ideological overthrow of the original constitutional assumptions of the founding treaties – Prominent example of ‘displacement of social Europe’ – Court of Justice’s case law on the relationship between freedom to conduct a business and labour law – Neoliberal understanding of the freedom of enterprise – Alternative interpretation of Article 16 of the EU Charter of Fundamental Rights

scholarly journals The future of the standard employment relationship: Labour law, new institutional economics and old power resource theory

2017 ◽  
Vol 59 (3) ◽  
pp. 374-392 ◽  
Author(s):  
Judy Fudge
Keyword(s):  
Trade Unions ◽  
Institutional Economics ◽  
New Institutional Economics ◽  
Employment Relationship ◽  
Resource Theory ◽  
Labour Law ◽  
Manufacturing Firm ◽  
Power Resource ◽  
Power Resource Theory ◽  
Standard Employment Relationship

This article addresses two questions about the standard employment relationship that have become prominent in labour law literature: Does it exacerbate inequality? Is its decline inevitable? The focus is on the second question and emphasizes the extent to which the standard employment relationship was both embedded in, and the outcome of, an institutional ensemble that was fashioned out of the post-war capital–labour compromise in industrialized democracies. The analysis proceeds in three steps. The first is conceptual and stresses the distinctive nature of labour as a fictive commodity, and the recurring regulatory dilemmas that arise in any attempt to institutionalize a labour market. The second step historicizes and contextualizes the employment relationship, emphasizing politics and conflict (power resource theory) over rational choice and coordination (new institutional economics) as the basis for its institutionalization. The emphasis on politics, power and labour leads to the third step, which focuses on how the broad process of financialization influences three key institutions – the large manufacturing firm, the democratic welfare state and autonomous trade unions – that have been crucial for the development of the standard employment relationship.

scholarly journals Amicable Methods for Collective Dispute Resolution—Selected Legal Issues

2019 ◽  
Vol 28 (1 ENGLISH ONLINE VERSION) ◽  
pp. 41-55
Author(s):  
Daria Mikos
Keyword(s):  
Dispute Resolution ◽  
Trade Union ◽  
Legal Issues ◽  
Employment Relationship ◽  
Labour Law ◽  
Legal Norms ◽  
Legal Method ◽  
Rights And Interests ◽  
Labour Disputes ◽  
Detailed Presentation

The article deals with the issue of asserting the rights and interests of all employees who enjoy the representation of trade union organisations in their disputes with the employer. The aim of the article is to give a detailed presentation of issues related to collective labour disputes. To achieve this aim, the stages at which the rights and interests underlying collective labour disputes are presented in detail. This study employs the dogmatic-legal method. The author carries out an analysis and interpretation of the provisions relating to collective labour disputes in the field of labour law. It was vital to examine the legal norms established by the legislator. A description and systematisation of the applicable legislation was also conducted. Issues relating to the resolution of collective disputes in the workplace are presented theoretically with a detailed discussion of the specific stages. This presented work is divided into four parts. The first presents the basic notions related to collective labour disputes. The sections that follow present the problems involved in the particular stages of claims enforcement based on employment relationship, i.e. bargaining, mediation, and arbitration. The rules for joining specific stages of resolving the above mentioned disputes were also discussed. To a large extent, the issues elucidated here bring the reader, and above all entities involved in collective labour conflicts, closer to the methods of asserting their own rights and interests.

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