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 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.

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.

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.

scholarly journals Employee's right to privacy: Where is the bound of the employer's right to monitor employees' communications

2020 ◽  
pp. 85-99
Author(s):  
Milica Kovač-Orlandić
Keyword(s):  
High Sensitivity ◽  
Private Life ◽  
Employment Relationship ◽  
Right To Privacy ◽  
Labour Law ◽  
The Right To Privacy ◽  
Legitimate Interests ◽  
Conflicting Interests ◽  
The Right ◽  
Consistent Application

Starting from the assumption that employees enjoy the protection of private life in relation to their employers, this paper seeks to answer the question how the right to privacy as a civil right can be incorporated into labour law without, concurrently, undermining the nature of the employment relationship, and considering the subordination as its primary feature. Accordingly, the nature of this right is analysed and the conditions under which it can be restricted in the workplace. Taking into account that the breaches of privacy and even more subtle ways of breach have increased in frequency in the workplace, the author deals with the issue of monitoring the employee's communication, pointing to the high sensitivity of this topic, since at the same time numerous legitimate interests of the worker should be fulfilled, as well as of the employer. The aim of the paper is to point out that in this case, the consistent application of the principles of legitimacy, proportionality and transparency is crucial for balancing the conflicting interests of workers and employers.

A GLIMPSE INTO THE PRESENT AND FUTURE OF LABOUR LAW AND INDUSTRIAL RELATIONS IN CENTRAL AND EASTERN EUROPE

2020 ◽  
Vol 551 (2) ◽  
pp. 21-28
Author(s):  
Cristina Mihes
Keyword(s):  
Collective Bargaining ◽  
Industrial Relations ◽  
Employment Relationship ◽  
Special Focus ◽  
Labour Law ◽  
Collective Agreements ◽  
Policy Goals ◽  
The Future ◽  
Recent Trends ◽  
Standard Employment Relationship

This paper seeks to take a look at recent labour law reforms in a number of selected CEE countries, and to examine the manner, in which the equation of standard employment relationship and the dynamics of collective bargaining processes have changed. The 1st section discusses the policy goals as well as drivers of legal changes, which have aff ected and guided recent labour law reforms in the sub-region. External infl uences over shaping of the new policy visions and recovery policies are also examined here. The 2nd section examines recent trends in regulating standard and non-standard employment relationship, as well as the collective agreements as determinants of working conditions and terms of employment. It also analyses the new approaches in the implementation of the guiding principles of collective bargaining, including the autonomy of the parties, and the principle of favourability. Furthermore, the 3rd section seeks to explore what the future looks like by traveling the paths opened by the works of the ILO Global Commission on the Future of Work, with a special focus on the Universal Labour Guarantee. Finally, a number of conclusions are drawn on the basis of the analysed data and policies.

Solving the ‘Gig-saw’? Collective Rights and Platform Work

2019 ◽  
Vol 49 (3) ◽  
pp. 352-376 ◽  
Author(s):  
Michael Doherty ◽  
Valentina Franca
Keyword(s):  
Collective Bargaining ◽  
Employment Status ◽  
Employment Relationship ◽  
Labour Law ◽  
Collective Rights ◽  
Key Stakeholders ◽  
The Social ◽  
Social Partners ◽  
Platform Economy

Abstract There are few topics in contemporary labour law scholarship that have generated more literature than work in the so-called ‘platform economy’. To date, much work has focussed on the question of defining the personal scope of the employment relationship and on the problems of using existing classifications of employment status in the context of work organised via platforms. This article seeks to address the much less-discussed issue of how collective bargaining may function in the ‘platform economy’, and the role of collective labour law actors, most notably the social partners. The article argues that, rather than focussing on individual employment status and litigation, it is by developing a regulatory framework supportive of, and that involves key stakeholders in, strong sectoral collective bargaining that work in the ‘platform economy’ can be adequately regulated to the benefit of workers, business and the State.

Status and Contract in the Employment Relationship

1989 ◽  
Vol 23 (1) ◽  
pp. 77-110 ◽  
Author(s):  
Frances Raday
Keyword(s):  
Employment Relationship ◽  
Social Significance ◽  
Labour Law ◽  
Employment Contract ◽  
Contractual Relationship ◽  
Theoretical Approaches ◽  
Legal Thinking

There is evidence, in some recent legal thinking on the employment contract, of a readiness to abandon classical contract principles. This phenomenon is especially apparent in the formulation of the Employment Contract Bill, 1985. In this article, I shall examine this development in the framework of an analysis of the employment relationship and the extent to which it is to be regarded as a contractual relationship, both under differing theoretical approaches and under existing labour law principles.The contemporary employment relationship emerges from a contractual undertaking between individuals to exchange wages for services, but its social significance is not limited to the issues raised by the terms of the contract.

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