scholarly journals EMPLOYMENT TERMINATION ISSUES WITH AN EMPLOYEE WHO IS A MEMBER OF THE TRADE UNION

2017 ◽  
Vol 4 (81) ◽  
pp. 52
Author(s):  
Dace Tarasova
Keyword(s):  
Trade Union ◽  
Trade Unions ◽  
The State ◽  
State Of Health ◽  
Labour Law ◽  
Employment Contract ◽  
Employment Termination ◽  
Continue Employment ◽  
The Right

The aim of the article is to state the main problems concerning employment termination with an employee who is a member of the trade union, and to work out the proposals on solutions of the problematic questions.Problems of termination of issues with and employee who is a member of the trade union are considered in the article. 110 clause the 1 part of the Labour Law determines that an Employer is prohibited to terminate Employment Contract with an Employee who is a member of the trade union if there is no preliminary agreement with a certain trade union. But 101 clause 6 part of the Labour Law determines that an Employer before termination of an Employment Contract has to clarify if an Employee is a member of the trade union. Therefore an Employer needs to ask the trade union for permission to terminate labour relationships with an Employee who is a member of the trade union.101 clause 7 paragraph determines, that an Employer has the right to terminate labour relationship with an Employee, when an Employee is not able to continue employment because of the state of health, and there is a certain medical statement. In this case, before termination of the Employment Contract an Employer has to ask the trade union for permission, but the trade union in this case is not competent enough, because the medical statement was issued by an authorized person. The Trade Union Law came into force in 2014, this Law does not consider the case that trade unions should be united according to the branches, occupations and other principles, that is why in reality Employees could participate in several trade unions or in one, which does not specialize in a certain branch or occupation. The problems also occur in the situations, when an Employee learns that an Employer wishes to terminate Employment Contract. In these situations Employee is looking for possible actions, in order to defence himself and joins the trade union, and becomes its member, and stays there till the problems are solved. 

Strikes and the Individual Worker—Reforming the Law

1987 ◽  
Vol 46 (2) ◽  
pp. 287-302
Author(s):  
B. W. Napier
Keyword(s):  
Trade Union ◽  
Trade Unions ◽  
Union Member ◽  
Green Paper ◽  
Individual Choice ◽  
Labour Law ◽  
Industrial Action ◽  
The Government ◽  
The Individual ◽  
The Right

The government's recent Green Paper “Trade Unions and Their Members” contains several radical proposals for the reform of labour law, among them the suggestion that no union member should be subject to penalties by his trade union for disobedience to the union's call to take strike action. This proposal is based partly on a philosophy of committed individualism—everyone has a right to decide to work whatever a trade union has to say about the taking of industrial action—and partly on the government's concern over the well-publicised sanctions which unions such as the N. U. M. and the N. U. J. have recently imposed on members who have rejected official calls to participate in industrial action. The suggestion is made at a time when the actual impact of strikes (measured in terms of working days lost) is at its lowest point for twenty years and at a stage when, as one commentator has observed, “[t]he trend in this area of law, as developed in the courts and by Parliament, is towards strengthening the position of the union member who refuses to participate in industrial action”. Given its conviction that the taking of industrial action should be a matter left to individual choice (para. 2.22), it is hardly surprising that the government appears to view sympathetically the possibility of extending to members disciplined by their union (by expulsion or some lesser sanction) the right of complaint to an industrial tribunal.

scholarly journals La participación de los trabajadores en materia de prevención de riesgos laborales

2009 ◽  
pp. 121
Author(s):  
María Purificación García Miguélez
Keyword(s):  
Trade Union ◽  
Trade Unions ◽  
Complex Structure ◽  
The Public ◽  
Prevention Activities ◽  
The Right ◽  
Private Domain

El derecho de participación reconocido a los trabajadores para la organización y planificación de las actividades de prevención en las empresas entraña una estructura compleja en diferentes ámbitos. En primer lugar, respecto al dominio privado e interno, integrado por una participación directa e individualizada de los trabajadores en entidades de plantillas reducidas, o un procedimiento indirecto, colectivo o representativo, en el caso de empresas con un número suficiente de trabajadores para elegir representantes (tanto a través de una representación general -unitaria o sindical- como de una especializada -delegados de prevención y comité de seguridad y salud-). Son analizados tanto el aspecto "orgánico" (esto es, los órganos representativos precisos para un correcto ejercicio) como el "funcional" (es decir,las facultades y competencias a desempeñar), así como las diferencias para ejercer los derechos de información y de consulta, todo ello a fin determinar el órgano de representación más idóneo en cada caso. En segundo lugar, y en relación con el marco de actuación público, el derecho puede ser denominado de participación representativa e institucional, pues es llevada a cabo en diferentes órganos administrativos y fundaciones sectoriales, siendo los sindicatos más representativos responsables de su correcto ejercicio.<br /><br />The right that is recognized to workers in order to participate in the organization and planning of prevention activities in enterprises entails a complex structure related to different scopes. Firstly, related to the internal and private domain, consisting in a direct and individualized participation of workers in those entities of small size in staff, or an indirect, collective or representative procedure, in case of enterprises with a number of workers enough to elect representatives (either a general delegation -unit and trade union- or a specialized one -prevention risks delegates and committee on security and health-). The "organic" aspect (i.e. representative organs required to a proper practice) and the "functional" one (i.e. faculties and competences to be performed) are both under analysis. Differences to exercise the rights on information and consultation are also considered, all in order to determine the most suitable representative organ in each case. Secondly, related to the public framework, the right could be so-called representative and institucional participation, as it is performed in different administrative organs and sectorial foundations, the most representative trade unions as responsible for a proper exercise.

9. Collective labour law

2019 ◽  
pp. 635-703
Author(s):  
Ian Smith ◽  
Aaron Baker ◽  
Owen Warnock
Keyword(s):  
Trade Union ◽  
Trade Unions ◽  
Legal Status ◽  
European Convention ◽  
Legal Rights ◽  
Employment Relations ◽  
Freedom Of Association ◽  
Labour Law ◽  
Gig Economy ◽  
The Law

This chapter considers the laws that affect trade unions and employment relations at a collective level, with the exception of strikes and other industrial action which are examined in Chapter 10. The chapter begins by considering the legal status of a trade union and the statutory concept of trade union independence. The applicability of trade union law to workers in the gig economy is also considered. The focus then shifts to the ways in which the law seeks to secure freedom of association, by provisions which protect and support union membership and activities including giving protection against discrimination and providing rights to time off for union duties and activities. The chapter then turns to the concept of recognition of unions for collective bargaining, and the legal rights that come with recognition. It also examines the statutory system for securing recognition. The relevance of the European Convention on Human Rights is considered throughout as are the changes made by the Trade Union Act 2016. The law relating to domestic and European works councils is also considered.

Turkish Industrial Relations at the Crossroads: Revisiting the History of Industrial Relations in the Early Post World War Two Period

2018 ◽  
Vol 93 ◽  
pp. 151-175 ◽  
Author(s):  
Didem Özkiziltan ◽  
Aziz Çelik
Keyword(s):  
Trade Unions ◽  
Industrial Relations ◽  
The State ◽  
Collective Actions ◽  
World War ◽  
Historical Evidence ◽  
Critical Juncture ◽  
History Of ◽  
Critical Account ◽  
The Right

AbstractThe 1961 constitutional reform in Turkey recognized the right to strike and granted other rights and freedoms related to the collective actions of labor. Conventional wisdom holds that Turkish trade unions became independent of the state power with class-based interests only after this reform. Across mainstream literature, this is considered, in historical institutionalist terms, as the first critical juncture in Turkey's industrial relations. This paper provides a critical account of the institutional continuity, development, and change that took place in Turkey's industrial relations starting from its establishment as a republic in 1923 until the end of the 1950s, by considering the socioeconomic and legal-political environment during these years. Considering the historical evidence employed, and under historical institutionalism, it is argued that the first critical juncture in the country's industrial relations occurred in 1947, when the ruling cliques permitted the establishment of trade unions. In this paper, it is purported that the consensus reached by the trade unions on the necessity of the right to strike from the mid-1950s onwards initiated a peaceful class struggle between Turkish labor and the state, which gradually steered the industrial relations toward the second critical juncture following the promulgation of the 1961 constitution.

An Illusion of Protection and an Assumption of Responsibility: The Possibility of Swedish State Liability after Laval

2012 ◽  
Vol 14 ◽  
pp. 453-473
Author(s):  
Barend van Leeuwen
Keyword(s):  
Direct Effect ◽  
Trade Union ◽  
Trade Unions ◽  
The State ◽  
Eu Law ◽  
Legislative Framework ◽  
State Liability ◽  
Judicial Protection ◽  
Careful Investigation ◽  
Horizontal Direct Effect

AbstractThis chapter will look deeper into the question of horizontal direct effect in the Viking and Laval cases by focusing on the effects of the Laval judgment. It will be submitted that the Laval case was an example of the horizontal enforcement of the vertical right to be protected by the State against interference with one’s free movement rights under EU law. The trade union acted within a legislative framework which had been established by the State and which provided protection to the trade union. The CJEU’s judgment established that this protection had been illusory, and the Swedish State assumed responsibility by amending two pieces of legislation. However, the reasoning of the CJEU did not sufficiently recognise the vertical nature of the proceedings. As a result, the Swedish Labour Court granted Francovich damages against the trade union, but these damages did not adequately compensate Laval for its losses. Therefore, the extension of horizontal direct effect to trade unions has resulted in inadequate judicial protection in this case. In future cases which present themselves as cases between two private parties the CJEU should more carefully investigate the responsibility of the State. A more careful investigation would open up the possibility of a Francovich claim against the State, if the State bore responsibility for breaches of EU law committed by private parties.

AMENDMENTS TO THE TRADE UNIONS ACT AND THE RIGHT TO WORK

2019 ◽  
Vol 1 (XIX) ◽  
pp. 371-382
Author(s):  
Łukasz Łaguna
Keyword(s):  
Trade Union ◽  
Trade Unions ◽  
Current System ◽  
Labor Law ◽  
Employment Law ◽  
Paid Work ◽  
Contract Of Employment ◽  
Negative Effect ◽  
The Law ◽  
The Right

On 1 January 2019, the amendment to the Trade Unions Act enters into force. It introduces a kind of revolution in the current system of employment law. The law extends the law of the trade union coalition, creating and joining union organizations for non-employees.Article 1 establishes a normative category of persons who perform paid work, including employees and persons providing work for remuneration on a basis other than the employment relationship. Thus, the legislator extends the statutory right of the trade union to persons who are not considered employees. In relation to the above, in the context of analyzing this legal act, it is not justified to use the traditional “labor law” as a too narrow term for the needs of new regulations. The term “employment law” appears in the latest publications of the doctrine as a broader term than the above. Finally, it should be noted that the effect of changes may be that people who work on a different basis than an employment contract and who have a number of the same rights as those working on a contract of employment may stop trying to conclude such a contract. And this will have a negative effect on the whole society, for example due to the lack of the possibility to enforce labor law functions.

Protection of Labour Rights in the Age of Democratization and Economic Restructuring in Southern Africa

1995 ◽  
Vol 39 (1) ◽  
pp. 39-63 ◽  
Author(s):  
Peter Nanyenya Takirambudde
Keyword(s):  
Human Rights ◽  
Southern Africa ◽  
Trade Unions ◽  
Large Scale ◽  
Economic Restructuring ◽  
Labour Law ◽  
Labour Rights ◽  
Negative Rights ◽  
The Right ◽  
Political Economic

The contours of human rights, especially labour rights, have undergone significant shifts in the recent past in Southern Africa. Labour law regimes have been overhauled, resulting in large-scale changes, liberalization of controls over trade unions, loosening of strictures relating to the right to strike, freeing collective bargaining from excessive governmental interference and the extension of protective legislation to previously excluded workers. These developments have been a function of dramatic changes throughout die region. The transition in Soudiern Africa has encompassed die political, economic and legal fabrics of most countries. It has been under way since die late 1980s and is being extended daily. In die constitutional zone, diere is a discernible trend towards the constdtutionalization of social rights, thus settling the debate regarding positive and negative rights in favour of the interdependence, indivisibility and interconnectedness of human rights. The transformation in Soudiern Africa is emblematic of three critical developments: democratization, economic liberalization and paradigmatic transitions in law.

scholarly journals DETERMINING THE THRESHOLD FOR ORGANIZATIONAL RIGHTS: THE LEGAL QUAGMIRE FACING MINORITY UNIONS RESOLVED – South African Post Office v Commissioner Nowosenetz No (2013) 2 BLLR 216 (LC)

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Clarence Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Post Office ◽  
Labour Relations ◽  
Industry Level ◽  
Pluralistic Approach ◽  
The Right ◽  
Conditions Of Employment

The issue of organizational rights facing minority unions has been a quagmire since the advent of the Labour Relations Act 66 of 1995(hereinafter “the LRA”). This quagmire exists, notwithstanding the fact that the Constitution affords every trade union the right to engage in collective bargaining (s 23 of the Constitution, 1996). The acquisition of organizational rights by trade unions plays a crucial rolein as far as collective bargaining is concerned. It is through collective bargaining that unions are able to negotiate with employers regarding the terms and conditions of employment. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the industry level. Chapter III of the LRA regulates collective bargaining. Whereas this chapterostensibly promotes a pluralistic approach to organizational rights it is unequivocally biased towards majoritarianism. This is the case despite minority trade unions fulfilling an important role in the current labour system especially when it comes to the balance of powerin the employment arena. In light of the above, the legal quagmire faced by the minority unions in the quest for acquiring organisation rights in terms of the relevant provisions of the LRA is clearly illustrated by the decision in South African Post Office v Commissioner Nowosenetz No ((2013) 2 BLLR 216 (LC) (hereinafter “ the South African Post Office case”)).

scholarly journals The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective

2017 ◽  
Vol 16 (4) ◽  
pp. 284
Author(s):  
Johan Kruger ◽  
Clarence Itumeleng Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Freedom Of Association ◽  
Labour Relations ◽  
Labour Standards ◽  
International Labour Standards ◽  
The Right ◽  
The Impact

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level.  It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.

Trade Union Liability for ‘EU-Unlawful’ Collective Action

2012 ◽  
Vol 3 (1) ◽  
pp. 5-18 ◽  
Author(s):  
Jonas Malmberg
Keyword(s):  
Collective Action ◽  
Trade Union ◽  
Trade Unions ◽  
Eu Law ◽  
The European Union ◽  
Collective Actions ◽  
Court Of Justice ◽  
The Right ◽  
Alternative Understanding ◽  
The Eu

The Court of Justice of the European Union (ECJ) has made it clear that collective action taken by trade unions under certain circumstances might violate the freedom of services and the right of establishment under the Treaty (Articles 49 and 56 TFEU). However, the Court has not addressed the issue of which remedies are to be available against a trade union arranging such an ‘EU-unlawful’ collective action. This question was dealt with by the Swedish Labour Court (Arbetsdomstolen) in its final judgment in December 2009. The article discusses this judgment and presents an alternative understanding of the EU law requirements concerning remedies for EU-unlawful collective actions.

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