Using Criminal Law to Enforce Statutory Employment Rights

2020 ◽  
pp. 53-69
Author(s):  
David Cabrelli
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
Health And Safety ◽  
Market Regulation ◽  
Legal Enforcement ◽  
Labour Market Regulation ◽  
Labour Standards ◽  
The Individual ◽  
The Right ◽  
Employment Rights

This chapter examines the current terrain of criminal law as a technique of labour market regulation. It identifies a range of possible interactions between the criminal law and civil law in the legal enforcement of labour standards. Sometimes fundamental labour rights, such as the right not to be unfairly dismissed or the right not to be discriminated against, are protected exclusively through a ‘private’ enforcement model at the initiative of the individual right-holder. Sometimes there will be exclusive enforcement through the criminal law with no private right of civil action, as under the Health and Safety at Work Act 1974. Finally, there may be mixed enforcement regimes where there is a combination of criminal and civil measures linked to specific statutory rights, as with the enforcement of the National Minimum Wage Act 1998.

scholarly journals The evolving nature of labour inspection, enforcement of employment rights and the regulatory reach of the state in Britain

2020 ◽  
Vol 62 (5) ◽  
pp. 735-757
Author(s):  
Stephen Mustchin ◽  
Miguel Martínez Lucio
Keyword(s):  
Labour Market ◽  
Trade Unions ◽  
Health And Safety ◽  
The State ◽  
State Agencies ◽  
Market Regulation ◽  
Role Of The State ◽  
Labour Market Regulation ◽  
Enforcement Mechanisms ◽  
Employment Rights

The role of the state in directly regulating employment through enforcement mechanisms is increasingly significant and politically contentious in a context of weakened unions and the increasingly fragmented and precarious nature of the labour market. This article focuses on qualitative research on labour market regulatory actors in Britain, including the Health and Safety Executive, the Gangmasters and Labour Abuse Authority, as well as referencing relevant changes in HM Revenue and Customs, trade unions, legal and advice services and other state agencies. The article argues that a curious dynamic is emerging in labour market regulation involving simultaneous processes of deregulation, greater levels of direct intervention in some areas alongside marketisation, and innovative forms of collaboration between relevant state agencies. Much of this is, however, driven by constraints imposed through economic austerity and neoliberal policies with an increasing focus on immigration and policing concerns, creating notable sets of organisational tensions within and between the agencies and the work of their relevant inspectors.

scholarly journals Criminalisation as a response to low wages and labour market exploitation in Sweden

2021 ◽  
pp. 203195252110380
Author(s):  
Erik Sjödin
Keyword(s):  
Labour Market ◽  
Criminal Law ◽  
Civil Law ◽  
Market Regulation ◽  
The Novel ◽  
Difficult Situation ◽  
Swedish Model ◽  
Labour Market Regulation ◽  
Forced Labour ◽  
Low Wages

It is hard to determine when adverse labour conditions become exploitation. As of July 1, 2018, ‘human exploitation’ is criminalised in Sweden, with penalties up to ten years prison. The crime of ‘human exploitation’ occurs when someone, through unlawful coercion, misleads, exploits another person’s position of dependence, lack of protection, or difficult situation, or exploits another person in forced labour, work under obviously unreasonable conditions or begging. This article describes how disputes concerning low wages are to be handled within the Swedish model for labour market regulation, and contrasts this with the novel crime that adds a criminal law element to this otherwise civil law-oriented model.

Reflections on the existence of the science of criminal law

2021 ◽  
pp. 156-161
Author(s):  
I. Mytrofanov
Keyword(s):  
Social Justice ◽  
Public Relations ◽  
Criminal Law ◽  
The State ◽  
Crime And Punishment ◽  
Self Defense ◽  
Illegal Acts ◽  
The Subject ◽  
The Individual ◽  
The Right

The article states that today the issues of the role (purpose) of criminal law, the structure of criminal law knowledge remain debatable. And at this time, questions arise: whose interests are protected by criminal law, is it able to ensure social justice, including the proportionality of the responsibility of the individual and the state for criminally illegal actions? The purpose of the article is to comprehend the problems of criminal law knowledge about the phenomena that shape the purpose of criminal law as a fair regulator of public relations, aimed primarily at restoring social justice for the victim, suspect (accused), society and the state, the proportionality of punishment and states for criminally illegal acts. The concepts of “crime” and “punishment” are discussed in science. As a result, there is no increase in knowledge, but an increase in its volume due to new definitions of existing criminal law phenomena. It is stated that the science of criminal law has not been able to explain the need for the concept of criminal law, as the role and name of this area is leveled to the framework terminology, which currently contains the categories of crime and punishment. Sometimes it is not even unreasonable to think that criminal law as an independent and meaningful concept does not exist or has not yet appeared. There was a custom to characterize this right as something derived from the main and most important branches of law, the criminal law of the rules of subsidiary and ancillary nature. Scholars do not consider criminal law, for example, as the right to self-defense. Although the right to self-defense is paramount and must first be guaranteed to a person who is almost always left alone with the offender, it is the least represented in law, developed in practice and available to criminal law subjects. Today, for example, there are no clear rules for the necessary protection of property rights or human freedoms. It is concluded that the science of criminal law should develop knowledge that will reveal not only the content of the subject of this branch of law, but will focus it on new properties to determine the illegality of acts and their consequences, exclude the possibility of using its means by legal entities against each other.

REGULATION OF CIVIL LAW EMPLOYMENT OR EMPLOYMENT LAW?

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 229-237
Author(s):  
Łukasz Paroń
Keyword(s):  
Gradual Increase ◽  
Civil Law ◽  
Hourly Wage ◽  
Temporary Work ◽  
Freedom Of Contract ◽  
Legal Relationship ◽  
Asking Questions ◽  
The Right ◽  
Employment Rights ◽  
Public Holidays

Performance of work on a basis other than an employment relationship takes various forms. Predominantly, it takes place based on civil law relationships, which are characterised by the principle of freedom of contract, which results in the possibility of freely shaping the content of any such legal relationship. However, recent years are marked by a gradual increase in regulations of employment other than based on contracts of employment, i.e. based on civil law contracts. Introducing a minimum hourly wage, limiting employment in trade on Sundays and public holidays, providing temporary work under civil law contracts or the much earlier widespread granting of employment rights to contractors in the putting-out system and, above all, granting the right to safe and hygienic working conditions to everyone who performs work justifies asking questions about future developments.

A Veiled Threat: Belcacemi and Oussar v Belgium

2018 ◽  
Vol 20 (2) ◽  
pp. 190-200
Author(s):  
Jasper Doomen
Keyword(s):  
Criminal Law ◽  
Freedom Of Conscience ◽  
Unequal Treatment ◽  
The Face ◽  
The Individual ◽  
Full Face ◽  
The Right

The freedom of the individual can easily come into conflict with his or her obligation to integrate in society. The case of Belcacemi and Oussar v Belgium provides a good example. It is evident that some restrictions of citizens’ freedoms must be accepted for a state to function and, more basically, persist; as a consequence, it is acceptable that certain demands, incorporated in criminal law, are made of citizens. The issue of the extent to which such restrictions are justified has increasingly become a topic of discussion. The present case raises a number of important questions with respect to the right to wear a full-face veil in public if the societal norm is that the face should be visible, the most salient of which are whether women should be ‘protected’ from unequal treatment against their will and to what extent society may impose values on the individual. I will argue that Belgian law places unwarranted restrictions on citizens and that the values behind it testify to an outlook that is difficult to reconcile with the freedom of conscience and religion.

Restorative Regulation of Criminality at Work in Canada

2020 ◽  
pp. 516-534
Author(s):  
Bruce P Archibald QC
Keyword(s):  
Restorative Justice ◽  
Criminal Law ◽  
Health And Safety ◽  
Legal Regulation ◽  
Workplace Health ◽  
Human Capabilities ◽  
Safety Standards ◽  
Criminal Sanctions ◽  
High Profile ◽  
Labour Standards

This chapter suggests a way of enriching the normative theorization of the interface between labour law and criminal law in Canada. It homes in on the role of the criminal law in enforcing worker-protective labour standards, in particular with regard to workplace health and safety. Focusing specially on penal policy in respect of violations of health and safety standards by employing enterprises and by individual members of the staff of those enterprises, this chapter contends that there is real scope for bringing to bear the principles and tenets of restorative justice upon the practice of applying criminal or quasi-criminal sanctions in this regulatory domain. This might generate some more nuanced and creative regulatory approaches than those which are sometimes manifested in high-profile corporate criminal prosecutions and by the imposition of blockbusting fines upon such corporations. Moreover, the chapter argues that certain of the currently much-discussed human capabilities approaches to legal regulation might be deployed to develop and flesh out a methodology of restorative justice in this particular context.

14. Discrimination and Health and Safety

2019 ◽  
pp. 396-418
Author(s):  
Lucy Jones
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
Health And Safety ◽  
Employment Law ◽  
Direct Discrimination ◽  
Indirect Discrimination ◽  
Positive Action ◽  
Positive Discrimination ◽  
The Law ◽  
The Difference

This chapter considers the employment law aspects of discrimination and health and safety. It discusses the meaning of the protected characteristics which were brought together under the Equality Act 2010 and considers prohibited conduct under the Act. It explains the difference between direct and indirect discrimination and when direct discrimination can be justified. The chapter discusses the difference between positive action and positive discrimination and the interaction between protected characteristics and prohibited conduct. It also explains the law relating to harassment and victimization. The chapter concludes with a discussion of the law covering health and safety in the workplace, looking at both criminal law and civil law.

scholarly journals Labour standards application in the informal economy of Ghana: The patterns and pressures

2013 ◽  
Vol 58 (196) ◽  
pp. 157-175 ◽  
Author(s):  
Angela Akorsu
Keyword(s):  
Informal Economy ◽  
Social Protection ◽  
Industrial Relations ◽  
Work Organisation ◽  
Market Regulation ◽  
Employment Relations ◽  
The Social ◽  
Labour Market Regulation ◽  
Labour Standards ◽  
Labour Legislation

In spite of the rapid growth and importance of informal employment in Ghana, few studies have investigated the extent of coverage of labour standards application, as a form of labour market regulation. This paper investigates the extent of labour standards application in shaping the employment relations and conditions within the informal economy. The study focuses on 30 manufacturing firms in Ghana?s informal economy. Data were obtained through interviews with 43 entrepreneurs and their workers, as well as with key informants from the social partners of industrial relations. The study shows that labour standards are generally not applied among informal economy operators due to factors such as a lack of coverage of the existing labour legislation, ineffective enforcement, ignorance, peculiarities of work organisation, and the dynamics of the apprenticeship system. It is therefore concluded that informal economy workers, who constitute the majority of the workforce in Ghana, lack social protection and must be targeted for intervention.

scholarly journals PERLINDUNGAN HUKUM TERHADAP NOTARIS PENGGANTI YANG AKTANYA BERMASALAH DITINJAU DARI UNDANG-UNDANG NOMOR 30 TAHUN 2004 JUNCTO UNDANG-UNDANG NOMOR 2 TAHUN 2014 TENTANG JABATAN NOTARIS

Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 20-27
Author(s):  
Arif Hidayat
Keyword(s):  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Civil Law ◽  
Criminal Offense ◽  
Actual Reality ◽  
State Administration ◽  
The Law ◽  
The Right

Notary in making an authentic deed must be able to account for the deed if it turns out that in the future problems arise from the authentic deed both in terms of criminal law, civil law or State administration. The problems arising from the deed made by the Notary need to be questioned whether it is the result of an error from the Notary or the error of the viewer who does not provide information in accordance with the actual reality to the Notary. Such negligence or error can occur because the Notary in question is lacking or does not understand the construction or legal actions desired by the viewer so that the deed made is contrary to the provisions of the law. Such negligence or error can also be deliberately carried out by the concerned Notary. This study focuses on Law Number 30 Year 2004 as amended by Law Number 2 of 2014 concerning Notary Position wherein this study discusses the Notary who is unable to carry out his position so he has the right to submit written leave request and at the same time accompanied by the appointment of a substitute notary. After a while, a lawsuit from a party that feels aggrieved results from the deed made by Si X as a Substitute Notary. The results of this study concluded that a notary who leaves as a substituted notary has responsibility for the deed made by his successor notary even though he is on leave from his position where the responsibility is in the form of civil liability, if the substitute notary commits an error within the scope of authority given by a notary to a substitute notary. So in that case the notary is also liable for losses suffered by the parties due to the deed made by the substitute notary. Because the notary who is replaced is the owner of the office, if the notary of origin will file leave then he will appoint an employee from his own office as a substitute notary. Criminal responsibility, in the case of a criminal offense, a notary who is replaced is not responsible, for example in the case of tax evasion. Criminal liability can only be imposed on a substitute notary if he makes a mistake outside his authority as a substitute notary. Then the notary whose leave cannot be held accountable. The substitute notary is also entitled to get the same protection and legal guarantees because every citizen has the same rights before the law.

The Criminalization of Health and Safety at Work

2020 ◽  
pp. 409-430
Author(s):  
Michael Ford
Keyword(s):  
Criminal Law ◽  
Historical Perspective ◽  
Health And Safety ◽  
Normative Theory ◽  
Central Importance ◽  
Legal Process ◽  
Individual Worker ◽  
Safety Outcomes ◽  
The Individual ◽  
Modern Era

This chapter adopts a historical perspective on the development of criminalization of health and safety law. In so doing, it emphasizes the divergence in perspective between criminal lawyers and labour lawyers on fundamental matters of value. Criminal lawyers have tended to focus on the development of criminalization-limiting principles as an exercise in normative theory, whereas labour lawyers have tended to focus on instrumental outcomes in terms of whether health and safety outcomes are improved. If criminal law works in that instrumental sense, then so much the better, and that supersedes niceties about the justifiability of criminalization. This chapter identifies the central importance of criminalization as a tool of deregulation in the modern era, following the removal of a civil right to seek compensation for breach of statutory duties under the health and safety legislation. By channelling enforcement exclusively through the criminal law, the individual worker is thereby disempowered in their standing to control the legal process and its outcomes.

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