A hypothesis on the economic nature of labour law

2018 ◽  
Vol 9 (3) ◽  
pp. 263-286
Author(s):  
Vincenzo Bavaro ◽  
Vincenzo Pietrogiovanni
Keyword(s):  
Trade Unions ◽  
Historical Analysis ◽  
Fundamental Rights ◽  
Social Market Economy ◽  
Social Rights ◽  
Freedom Of Association ◽  
Labour Law ◽  
The Social ◽  
The Right ◽  
Economic Nature

This article aims to introduce in the scientific debate on the future of EU labour law and its relationship with human and fundamental rights, a redefinition of the collective labour rights in terms of ‘collective labour freedoms’. This redefinition is undertaken in different steps and initiates from the so-called ‘Laval doctrine’ that has emancipated the economic freedoms (mainly referred to as the freedoms of the employers) from the social rights (mainly referred to as the rights of workers and trade unions): collective labour freedoms do not question the outcome of the balance struck by the CJEU but the possibility of balancing per se. In order to do so, this contribution proposes a different methodology that synthesises a socio-historical analysis of social rights as materially considered and acted by social partners with a positive reading of fundamental charters and constitutions in which the freedom of association, the right to collective bargaining and industrial action are recognised as tools to regulate the interests of a social and economic nature (in form of an inseparable hendiadys) pursued by both sides of the labour market, employers and employees. Collective labour freedoms underline the inherent economic nature of labour law and, in line with the theoretical framework (but opposite in terms of political goals) with the German ordoliberals, they do not deny the freedom of market; moreover, they are valuable entitlements to achieve the social market economy as enshrined in Art. 3(3) of TEU. The article finally presents a possible outcome of the proposed methodology with an example taken from a pivotal case from the Italian Supreme Court on the limits to the exercise of the right to strike in non-standard forms.

scholarly journals Any Chance for the Enforceability of the Human Right to Subsistence?

2020 ◽  
pp. 140-162
Author(s):  
Celia Fernández Aller
Keyword(s):  
Fundamental Rights ◽  
Social Rights ◽  
Legal Analysis ◽  
Human Right ◽  
Complex Issue ◽  
Philosophical Foundations ◽  
The Social ◽  
Wide Range ◽  
Policies And Programs ◽  
The Right

It is not true that the idea of the right to subsistence should not give rise to much controversy. In fact, social rights are not considered as fundamental rights by everyone. The aim of this paper is to analyze whether abstract social rights –and the right to subsistence in particular- should be put in constitutions and laws and if judges should be given powers to interpret them. The philosophical foundations and the content of the right are studied and five great challenges are presented, although the most powerful one is to focus on the social and political enforceability of the fundamental right to subsistence. Assessing the effectiveness of the right to subsistence, and the right to food particularly, is a complex issue. In the legal discourse, the question seems to be only suggested.  Even when the Constitutions expressly recognize this right in some countries, its implementation faces many constraints. The progressive realization of ESC rights requires a complex interaction of policies and programs in a wide range of sectors and institutions.The scientific method used in this work is the legal-sociological method, regarding the understanding of the rules, the lack of them, their effectiveness,  etc.   Several methodological techniques have been used, such as social and legal analysis, legal deduction and induction, description and interdisciplinarity.

scholarly journals Emenda Constitucional Nº 90/2015: do Direito ao Transporte à Questão da Efetividade dos Direitos Sociais

2017 ◽  
Vol 18 (1) ◽  
pp. 65-72
Author(s):  
Marcelo Ferreira Ribas
Keyword(s):  
Fundamental Rights ◽  
Constitutional Amendment ◽  
Social Rights ◽  
Popular Participation ◽  
Social Effectiveness ◽  
The Public ◽  
Federal Constitution ◽  
The Social ◽  
Legal Nature ◽  
The Right

O presente artigo visa abordar a questão da efetividade dos Direitos Sociais a partir da análise da Emenda Constitucional nº 90/2015, que inseriu o transporte no rol dos Direitos Sociais da Constituição Federal. Para tanto, adota-se a metodologia de abordagem dedutiva, posto partir da análise doutrinária do direito material para compreender seus desdobramentos fáticos e, no desenvolvimento da pesquisa, emprega-se a técnica de documentação indireta, mediante o recurso à bibliografia de juristas que discorrem sobre o tema. Depreende-se que o reconhecimento do direito ao transporte como Direito Social apresenta-se como oportunidade para refletir acerca do conceito e da natureza jurídica dos Direitos Sociais e de seu lugar no ordenamento jurídico. Como Direitos Fundamentais, os Direitos Sociais privilegiam a igualdade material na sociedade e, para tanto, demandam prestações por parte do Estado em benefício da população carente. Juridicamente eficazes, a eficácia social ou efetividade encontra óbice na teoria da reserva do possível, por meio da qual o Estado alega insuficiência de recursos a serem dispendidos para a concretização desses direitos. Além disso, há também o poder de disposição do Estado para geri-los discricionariamente, por meio do qual age, por vezes, desconsiderando as expectativas da sociedade. Ao final, propõe-se o aprimoramento dos instrumentos que garantam a participação popular na gestão democrática do orçamento público e na tomada de decisões, em vista da superação dos problemas relativos à efetividade dos Direitos Sociais e, consequentemente, da distância existente entre a norma e a realidade.Palavras-chave: Transporte. Direitos Sociais. Reserva do Possível. Discricionariedade.AbstractThis article aims to approach the issue of the effectiveness of social rights from the analysis of Constitutional Amendment 90/2015, which inserted the transportation in the roll of social rights of the Federal Constitution. For that, the methodology of deductive approach is adopted, based on a doctrinal analysis of the material law to understand its unfolding events and, during the research development,the technique of indirect documentation is used, through the use of the jurists’ bibliography who discourse about the subject. It seems that the recognition of the right to transportation as a social right presents itself as an opportunity to reflect on the concept and legal nature of social rights and their place in the legal system. As fundamental rights, the social rights privilege the material equality in the society and, therefore, demand State provisions in benefit of the poor population. Legally effective, the social effectiveness or effectiveness finds obstacle in the reserve of the possible theory, whereby the State claims insufficient resources to be spent for the realization of these rights. In addition, there is also the State’s power to dispose of it at its own discretion, by means of which it sometimes acts in disregard of the society expectations. In the end, it is proposed to improve the instruments that guarantee popular participation in the democratic management of the public budget and in decisionmaking, in order to overcome the problems related to the effectiveness of social rights and, consequently, the distance between the norm and the reality. Keywords: Transportation. Social Rights. Reserve of the Possible. Discretion.

scholarly journals Da Necessidade da Ratificação da Convenção n. 87 OIT pelo Brasil

REVISTA PLURI ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 223
Author(s):  
Elessandra Dos Santos Marques Válio
Keyword(s):  
Trade Union ◽  
Trade Unions ◽  
Fundamental Rights ◽  
Freedom Of Association ◽  
Human Right ◽  
Public Authorities ◽  
Federal Constitution ◽  
De Se ◽  
The Right ◽  
International Document

O presente estudo tem por escopo demonstrar a necessidade da ratificação da Convenção n. 87 da OIT que reza a liberdade sindical e a proteção ao direito de sindicalização, haja vista que vivemos em um Estado Democrático de Direito, sendo assim, é de se pressupor a valoração de direitos fundamentais, como a liberdade sindical. Embora o Brasil seja signatário da aludida Convenção, ficamos obstados de ratificá-la devido a limitações impostas pela Constituição Federal vigente, que nos impõe a unicidade sindical por categoria e a contribuição sindical compulsória, de modo a obstar a universalização do princípio da liberdade sindical. A Convenção n. 87 é o mais importante documento internacional sobre liberdade sindical em virtude de sua especificidade e abrangência, haja vista que ela visa garantir a liberdade sindical em face aos poderes públicos. A liberdade sindical pressupõe assegurar um direito humano, e deve ser dada a empregados e empregadores a opção para se organizar livremente sem quaisquer intervenções do Estado, e gozar dessa ampla liberdade pressupõe poder filiar-se e manter-se filiado aos sindicatos, desde que haja um interesse das partes. A liberdade sindical no Brasil pressupõe a ratificação da Convenção n. 87 da OIT.Palavras-chave: direito sindical; liberdade sindical; reforma sindical.AbstractThe purpose of this study is to demonstrate the need for ratification of Convention n. 87, which provides for freedom of association and the right to organize protection, given that we live in a Democratic Governance and Rule of Law, fundamental rights, such as freedom of association, must be considered. Although Brazil is a signatory to the aforementioned Convention, we have been unable to ratify it due to limitations imposed by the current Federal Constitution, which imposes union unity by category and compulsory union contribution, in order to prevent universalization of freedom of association principle. Convention n. 87 is the most important international document on freedom of association because of its specificity and scope, since it aims to guarantee freedom of association vis-à-vis public authorities. Freedom of association presupposes ensuring a human right, and employees and employers should be given the option to organize freely without any intervention by the State, and to enjoy this broad freedom presupposes being able to join and remain affiliated to trade unions, provided there is interest of the parties. Freedom of association in Brazil presupposes the ratification of Convention 87.Keywords: trade union rights; freedom of association; trade union reform.

Is There a Right to Free Movement across Borders?

2018 ◽  
Author(s):  
Sarah Song
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Free Movement ◽  
Individual Freedom ◽  
Freedom Of Association ◽  
Human Right ◽  
Freedom Of Movement ◽  
The Third ◽  
The Right ◽  
Logical Extension

Chapter 6 examines three rights-based arguments for freedom of movement across borders. Three rights-based arguments have been offered in support of freedom of international movement. The first claims that freedom of movement is a fundamental human right in itself. The second adopts a “cantilever” strategy, arguing that freedom of international movement is a logical extension of existing fundamental rights, including the right of domestic free movement and the right to exit one’s country. The third argument is libertarian: international free movement is necessary to respect individual freedom of association and contract. This chapter shows why these arguments fail to justify a general right to free movement across the globe. What is morally required is not a general right of international free movement but an approach that privileges those whose basic human rights are at stake.

A Study on the Social Rights of Female-Headed Single Parent with a Focus on the Right to Work and Care

2021 ◽  
Vol 37 (1) ◽  
pp. 75-115
Author(s):  
Soo Jung Jang ◽  
Kyungheun Baek ◽  
Byoung-Inn Kim ◽  
Hyejung Lee ◽  
Jin Bhang Oh
Keyword(s):  
Single Parent ◽  
Social Rights ◽  
Right To Work ◽  
The Social ◽  
The Right

scholarly journals The Phenomenon of Digital Labour Platforms

2020 ◽  
Vol 27 (4) ◽  
pp. 217-229
Author(s):  
Andrzej Marian Świątkowski
Keyword(s):  
Trade Unions ◽  
New Technologies ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
The European Union ◽  
Eu Member States ◽  
The Status ◽  
The Right ◽  
Almost All

In all EU Member States the status of people employed on job platforms is not fully legally regulated. It is necessary to consider the sources of the contemporary phenomenon of electronic employment, which is not amenable to legal regulation in the Union constituting an “area of freedom, security and justice with respect for fundamental rights” (Art. 67 (1) of the Treaty on the Functioning of the European Union). The right to work in decent conditions, with adequate remuneration, belongs to this category of rights. In the discussion on employment platforms state authorities are more inclined to consider issues related to new technologies, processes and changes caused by the development and application of modern digital technologies (digitization) in almost all areas. The headquarters of trade unions mainly discuss the legal position of employees and the role of employment platforms in employment relations in the post-industrial era. Entrepreneurs and their organizations, including private institutions and employment platforms, are interested in equal treatment by national legislators in local labour markets. They are afraid of the breach of the balance favorable to their own economic interests, caused by the public interest in the possibility of using employment in atypical forms of employment. Services consisting in employment provided under employment platforms are incomparably cheaper than identical work performed by employees employed under employment contracts.

scholarly journals Mexican Medical Students Protest During Covid-19 Pandemic

2021 ◽  
Author(s):  
Gabriela Torres-Hernández ◽  
Patricio García-Espinosa ◽  
Edgar Botello-Hernández ◽  
Diego Ortega-Moreno
Keyword(s):  
Medical Students ◽  
Social Service ◽  
Rural Areas ◽  
Working Hours ◽  
Fundamental Rights ◽  
City Hall ◽  
The Social ◽  
The Right ◽  
The City ◽  
Precarious Situation

During February  2021, a protest was organized by Mexican medical students through social media. About 200 interns, social service physicians and physicians protested peacefully in front of the city hall of Monterrey, Nuevo Leon, the capital of Mexico's second largest metropolitan area. Due to the current contingency situation, it was requested to attend with face shield and masks. The reason for the protest was to raise their voice due to the precarious situation where social service physicians are sent to rural areas of the country in which they have all the obligations of workers but without belonging to the working class - lacking the the benefits of this same as a living wage or fair working hours. The protesters were in limbo between student and worker. The protest also demanded justice for the sensitive death of young doctors due to malpractice situations of the Mexican authorities. We believe that a total reform of the social service in medicine is necessary. It is the responsibility of the authorities to cover the rural areas with permanently trained doctors without depending on recently graduated doctors. It is always important to assert our fundamental rights, including the right to protest in a peaceful manner.

Fundamental freedoms

2021 ◽  
pp. 191-262
Author(s):  
William A. Schabas
Keyword(s):  
Family Life ◽  
Trade Unions ◽  
Freedom Of Expression ◽  
Minority Rights ◽  
Political Rights ◽  
Political Democracy ◽  
Freedom Of Association ◽  
Fundamental Freedoms ◽  
Family Mobility ◽  
The Right

Fundamental freedoms is an allusion to Roosevelt’s ‘four freedoms’, although they now tend to be associated with those that fall under civil and political rights: freedom of expression, freedom of religion, freedom of peaceful assembly, and freedom of association. They have a degree of relativity, being subject to restrictions or limitations dictated by certain criteria including public morals and the rights of others. They have important links to political democracy, the rights of labour and trade unions, and minority rights. Other rights that may be labelled ‘fundamental freedoms’ are the right to private and family life, the right to marry and to found a family, mobility rights, nationality and the right to property.

Two Charters and a Pillar

2020 ◽  
pp. 191-202
Author(s):  
Bruno de Witte
Keyword(s):  
European Union ◽  
Social Protection ◽  
Fundamental Rights ◽  
Lisbon Treaty ◽  
Social Progress ◽  
Social Rights ◽  
The European Union ◽  
The Social ◽  
Charter Of Fundamental Rights

This chapter retraces the post-enlargement trajectory of the protection of fundamental social rights in Europe. The chapter selects three years that signpost this trajectory: 2000, when the EU’s Charter of Fundamental Rights was adopted, with the inclusion of a social rights chapter; 2009, when the Lisbon Treaty seemed to contain a renewed promise of social progress in the Union; and 2017, when the European Union launched a European Pillar of Social Rights, as part of an effort to revitalize the social protection agenda of the European Union after the disappointing post-Lisbon years.

OSTVARIVANjE PRAVA NA KOLEKTIVNO PREGOVARANjE U REPUBLICI SRBIJI

2021 ◽  
pp. 99-112
Author(s):  
Bojan Urdarević ◽  
Keyword(s):  
Collective Bargaining ◽  
Working Conditions ◽  
Legal Framework ◽  
Academic Community ◽  
Fundamental Rights ◽  
Freedom Of Association ◽  
Conflicting Interests ◽  
Collective Negotiations ◽  
The One ◽  
The Right

Freedom of association and the right to collective bargaining are fundamental rights of workers and a means of achieving a balance between the interests of workers and employers. Through collective bargaining, the parties in the collective negotiations identify common but also mutually conflicting interests and come to a common agreement. In this sense, collective bargaining can be a means of achieving a balance between, on the one hand, employers' desire for greater flexibility at work and on the other hand, the desire of employees to adapt their obligations and needs. It is important to note that the success of collective bargaining depends largely on the economic, institutional, political and legal framework in which collective negotiations between unions and employers take place. For this reason, the level of development of collective bargaining and social dialogue is different from state to state. Today, the right to collective bargaining has become widely recognized in the academic community as a key instrument for regulating working conditions and relations between employers and workers in a way that ensures fairer distribution of funds, improves working conditions and preserves the dignity of workers,but also institutionalizes industrial conflicts.

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