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Nouri Mzid de Fundamental social rights’ insertion in the new Tunisian Constitution: an efficiency being tested et F. Villanueva, D. Crespo-Villarreal, S. Bernstein, J. Hanley, J. Gravel and E. Ostiguy Temporary foreign workers in Quebec: not quite paradise

Ljubinka KovaČević r avail

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Frédéric Paré and Gilles Trudeau Why Right-to-Work Laws in the United States? dition English electronic edition E Equality, Inequalities, Discriminations: r é ompa C oni c

Interdisciplinary dialogue attempt of legal and quantitative knowledge oit dition r de Droit Comparé le c t r

Jérôme Porta and Christophe Bergouignan D E

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Debbie Collier From apartheid to affirmative action: an overview of equality law in the South African workplace du ravail

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Supriya Routh E The Constitution’s Step Children: Workers and Equality before Law

Dominique Meurs 20 15/3 et de la Sécurité Sociale Measuring discriminations: economists’ approaches

Comparative labour case law Allison Fiorentino (coord.) The strike and the judge: between distrust and protection Employer’s implied duties and judicial creation: contrasting examples in comparative law

International Legal News l e ctronic Argentina / Australia / Bulgaria / Czech Republic / Hungary / Israel / Italy / Lithuania / Romania / Serbia / Slovenia 20 15/3 Studies / South Africa / The Netherlands / Turkey / United Kingdom / United Nation Organization / United States of America Thematic Chapter: Equality, Inequalities, Discriminations. Retrospective overview of 2014 comparative labour law literature

Matteo Borzaga and Eva Maria Hohnerlein E Interdisciplinary dialogue attempt of legal and quantitative knowledge

Comparative labour case law 70 euros ISSN 2262-9815 International Legal News nglish comptrasec

E Retrospective overview of 2014 comparative labour law literature

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comptrasec - uMr 5114 - cnrs - université de bordeaux International Association of Labour Law Journals IALLJ The Revue de droit comparé du travail et de la sécurité sociale - English Electronic Edition is a member of the « International Association of Labour Law Journals », a network for exchanging publications and ideas, as well as legal and economic developments.

The others members of the association are:

Análisis Laboral (Peru) Arbeit und Recht (Germany) Australian Journal of Labor Law (Australia) Bulletin on Comparative Labour Relations (Belgium) Canadian Labour and Employment Law Journa (Canada) Comparative Labor Law & Policy Journal (United States of America) Diritti lavori mercati (Italy) Europäische Zeitschrift für Arbeitsrecht : EuZA (Germany) European Labour Law Journal (Belgium) Giornale di Diritto del lavoro e relazioni industriali (Italy) Industrial Law Journal (United Kingdom) Industrial Law Journal (South Africa) International Journal of Comparative Labour Law and Industrial Relations (Netherlands) International Labour Review (ILO) Japan Labor Review (Japan) Labour Society and Law (Israel) Lavoro e Diritto (Italy) Pécs Labor Law Review (Hungary) Relaciones Laborales (Spain) Revista de Derecho Social (Spain) Revue de Droit du Travail (France) Temas Laborales (Spain) Zeitschrift für ausländisches und internationales Arbeits - und Sozialrecht (Germany) 2015/3 contents STUDIES p. 6 Yaelsy Lafita Cobas Self-employment in Cuba. Remarks on its regulation in the Cuban Labour Code p. 16 Nouri Mzid Fundamental social rights' in the new Tunisian Constitution: an efficiency being tested p. 24 Francisco Villanueva, Daniel Crespo-Villarreal, Stéphane Bernstein, Jill Hanley, Sylvie Gravel and Emmanuelle Ostiguy Temporary foreign workers in Quebec: not quite paradise p. 36 Ljubinka Kovačević Development of employment relationship concept in the law of Serbia: From authentic self-management concept to late (re)affirmation of the contractual concept p. 46 Frédéric Paré, Gilles Trudeau Why right-to-work Laws in the United States ?

Equality, Inequalities, Discriminations: Interdisciplinary dialogue attempt of legal and quantitative knowledge p. 58 Jérôme Porta, Christophe Bergouignan Equality, inequalites, discriminations. Interdisciplinary dialogue attempt of legal and quantitative knowledge p. 64 Debbie Collier From apartheid to affirmative action: an overview of equality law in the South African workplace p. 76 Supriya Routh The constitution's step children: workers & equality before law p. 86 Dominique Meurs Measuring discriminations: economists' approaches

Comparative labour case law - Coordonated by Allison Fiorentino p. 94 The strike and the judge: between distrust and protection p. 114 Employer's implied duties and judicial creation: Contrasting examples in comparative law international legal news p. 122 Argentina - 2nd semester p. 144 Serbia - 1st & 2nd semesters p. 124 Australia - 1st & 2nd semesters p. 148 Slovenia - 2ndsemester p. 128 Bulgaria - 1st semester p. 150 South Africa - 1st & 2nd semesters p. 130 Czech Republic - 1st & 2nd semesters p. 154 The Netherlands - 2nd semester p. 132 Hungary - 1st semester p. 156Turkey - 1st semester p. 134 Israel- 1st semester p. 158 United Kingdom - 2nd semester p. 136 Italy - 1st & 2nd semesters p. 160 United Nation Organization 1st & 2nd semesters p. 140 Lithuania - 1st semester p. 164 United States of America - 1st & 2nd semesters p. 142 Romania - 2nd semester Retrospective overview of 2014 comparative labour law literature p. 172 Matteo Borzaga and Eva Maria Hohnerlein studies Yaelsy Lafita Cobas Assistant Professor at the Universidad de Oriente in Santiago de Cuba (Cuba), PhD student in Legal Sciences. Research themes: Philosophy of law, Economic right, Financial law, Public international law, Business administration and Human resources . Publications: ~ « La relacion juridica laboral del trabajador por cuentapropia en Cuba. Una aproximacion », Revista Electronica Centro Universitario de la Cienega, Mexico, 2014. ~ « Algunos apuntes en en torno al trabajo por cuenta propia y su regulacion en el Codigo de Trabajo de Cuba », Revista General del Derecho del Trabajo y la Seguridad Social, IUSTEL, España, 2014.

Self-employment in Cuba. Remarks on its regulation in the Cuban Labour Code

abstract In Cuba self-employment has always existed, but has only come to occupy a central role in economic development since the relaxation of the Cuban economic model; this is why it is important to study the various areas in which relationships develop (particularly in the field of Labor Law, considering that labor can be hired for all authorized activities), analyzing related regulations and primarily the current Labour Code. key words : Self-employed workers, employed workers, legal regulations, Labour Code.

résumé Le travail indépendant a toujours existé à Cuba, mais ne joue un rôle prépondérant dans l’économie cubaine que depuis l’assouplissement du modèle économique du pays. Il est donc important d’étudier les différentes facettes relatives au développement des relations relevant notamment du droit du travail, si l’on tient compte du fait que le recrutement de main-d’œuvre est admis dans le cadre de toutes les activités autorisées. Nous analyserons la législation applicable dans ce domaine, et plus particulièrement les dispositions du Code du travail en vigueur. mots clés : Travailleur indépendant, salarié, législation, Code du travail.

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6 Self-employment in Cuba

elf-employment as a form of labour is becoming I - History of self-employed work in Cuba more and more significant in the economic life of Cuba. For this reason, the authorities are Self-employment continued even after the Revolutio- seeking new ways of developing it, and particu- nary victory in January 1959, and we can identify certain key larly in terms of the legislation in force. There moments in the spread of this form of work. Sare over 455,577 self-employed workers in Cuba, hence the importance of examining the theoretical framework which The nationalisation processes implemented between establishes a scientific basis, from a legal perspective, for 1960 and 1963 limited the urban private sector to a num- this type of professional activity, in association with labour, ber of small artisans, traders and owners of transportation administrative, fiscal and, in some cases, commercial law. means.

1 As a starting point for any analysis, it is essential to try In 1968, the “Revolutionary Offensive” restricted urban to define the legal nature of self-employed workers. non-state work to the transport sector and the healthcare sector for doctors who had graduated before 1963 and were In this respect, one of the lines of investigation is to under state control. According to the Population and Hou- identify those who have the generic title of self-employed sing Census in 1970, workers not employed by the state2 worker, when in reality they are workers who establish an represented 2% of the working population. employment relationship of an independent character in exchange for a wage. Such people should be governed by In 1975, with the process of institutionalisation unde- labour law and not administrative law. It is also necessary rway at the time, the First Congress of the Communist Party to identify other people within the private sector who have of Cuba examined the need to implement new economic a part-time economic activity, generally within the family mechanisms that would help optimise the use of human sphere, and can still be subject to arbitrary regulations. and material resources. In July 1978 the Decree-Law No. Furthermore, it is necessary to look at self-employed wor- 14, which abrogated previous regulations, was passed. kers who are already developing a more organised activity with greater impact and multiple goods and services, and 1 As a result of the counter-revolutionary attitude and illegal acti- who could fall fully within the scope of commercial law. vities of a large part of the petty bourgeoisie, consisting of acquiring primary materials and manufacturing and commercialising goods, The different forms of self-employment must be iden- a process called the Revolutionary Offensive (Ofensiva Revolucio- tified in order to give them suitable legal treatment, which naria) almost completely eliminated this sector. On 13 March 1968, could guarantee better performance, boost development during the commemoration ceremony for the anniversary of the and increase efficiency in the management of responsibi- attack on the Presidential Palace, the Prime Minister of the revolu- lities and obligations. For this reason, special attention will tionary government, Commander in Chief Fidel Castro, announced be given in this article to self-employed hired workers (em- the nationalisation of all establishments that had remained private ployees) within the framework of Labour Law. (almost all small businesses and service providers). 2 Within this definition the Census included self-employed workers (who constituted the majority), private paid workers, hired workers in the home and unpaid family helpers.

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During the Congresses of 1981 and 1985, the role of self- The constant spread of self-employment in socialist employment within the adopted economic strategies was dis- systems, and of course in Cuba, was a result of functio- cussed. Certain documents3 reveal that local industries were nal defects in the Planned Economy due to the imbalance boosted as a way of increasing private and state employment, between supply and demand for goods and services, and as a way of assessing possibilities for forms of more collective between the needs and financial resources of the popu- labour organisation, such as cooperatives in urban areas. lation. This imbalance became increasingly marked over time. Lastly, as a result of the loss of momentum in gene- In 1981, according to the Population and Housing Census, rating state employment, a situation which became critical private workers accounted for 0.2% of the working popula- in 1990, large numbers of people turned to other forms of tion, while in 1968 they represented 1.2%.4 labour that were different to those that had existed during the previous 20 years. The adjustment process that was initiated in 1986 also provided an assessment of the problems occurring in this In 1993 the law authorising self-employment was re- sector, primarily the lack of control that emerged with the formulated and has since tended to become more flexible. growth of the said group, with excessive profits from illegal Since April 1996 self-employment has been accepted as a economic activities. This led to the decision to once again put growing and alternative form of employment. a cap on private urban labour. The Resolution of 1993 legalised independent work, the Studies carried out on self-employed workers before spread of which had been taking place spontaneously. It had 1990 revealed the following key characteristics:5 a large quantitative impact in comparison with previous systems, as a result of the changes in ownership relationships - Legislation imposed strict restrictions on the socio-de- within the economic model that developed after the 1990s.6 mographic and professional characteristics of this group. - Self-employment was present in rural and urban areas, Providing a realistic overview of the shift towards a less but predominantly in the latter. formalised situation is always problematic, due to the diffi- - Greater concentration in the sector for the distribution culty of measurement among other reasons. The situation or redistribution of goods and services, with limited presence in Cuba is no exception, but we shall try to portray these in the production sector. moments using official statistics which, although they do - High average age of the group. not reflect the whole picture, at least give us an idea of the - Low level of education and qualification. more general features of a large segment of this group. - The group principally contained workers who also had an employment relationship with the state, and retired wor- The statistics indicate that after 1993 the number of kers. For the majority, this professional option constituted an self-employed workers reached a peak in 1995 with 208,346 additional source of income. people, representing 7.4% of the working population wit- - Their income was similar to that of the working class hin the Cuban economy. In February 1997, this group had at the time. shrunk to 171,861 workers. - The group showed a tendency towards illegal growth and a strong connection with the black market. In April 1998 the number of officially registered workers was estimated to be in the region of 177,436. This included 154,438 self-employed workers, 11,000 transport drivers, 6,000 people working in housing rentals and 6,000 3 See Lineamientos Económicos y Sociales para el quinquenio visual artists.7 81-85. II Congreso del Partido Comunista de Cuba. Documentos y Discursos. Editorial Política, La Habana, 1981 and Programa del Partido Comunista de Cuba, Editorial Política, La Habana, 1986. 6 More information on the consequences of these changes wit- 4 The data for 1986 were taken from the Encuesta Nacional de hin the social order can be found in Espina Mayra et al. “Impactos Ocupación, CEE, December 1987. socioestructurales del reajuste económico”. Informe de Investiga- 5 For more information on the effects on the social order of these ción. CIPS, 1995. changes see Espina Prieto Mayra Paula et al., Centro de Investiga- 7 Data provided in an interview by Abel Acosta Damas, Director of ciones Psicológicas y Sociológicas de Cuba, 1995. the department for self-employment in the Ministry for Labour and

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8 Self-employment in Cuba

This decrease appears to be due to the legislation has a place for such activity in addition to the predominantly brought into effect in April 1996, which increased tax contri- state-controlled economy. butions for almost all professional subgroups through licences and taxes. This regulation, as well as the results Individuals working in self-employment are required of measures to reorganise the national finances, reduced to accept responsibilities established by state regulations the amount of money in circulation and, consequently, and contribute to the Treasury in proportion to their income. consumption capacity. These factors must also have with- Moreover, although some of them make large profits, gi- drawn a large portion of people from this sector (at least as ven the national financial imbalance, the fact remains that officially) as for some it reduced the possibility of making these would be higher and not subject to control if obtained such large profits which were characteristic of the early exclusively through the black market. 1990s. The Guidelines for the Economic and Social Policy of On the basis of international parameters calculated the Party and Revolution, passed during the Sixth Congress by the ILO and specialised knowledge of Latin America, of the Communist Party of Cuba in Havana on 16 April 2011 specialists in the Centro de Estudios Laborales y del Tra- and accepted by the Cuban State through the adoption of bajo (Centre for Labour and Working Surveys) have found the agreement of the National Assembly of People’s Power that for every self-employed worker there are on average of 1st August 2011, in the 7th Ordinary Period of Sessions of 3.5 non-registered workers, who may be family helpers or the VII Legislature, promoted a rise in employment of wor- others. Given this, at its peak the number of people working kers in the private sector with the aim of freeing the State in the informal sector in Cuba may have been as high has of extra economic burdens. This measure was designed to 1,094,100, which would have accounted for 21% of people in create greater efficiency in managing the Cuban economic employment. model. A great sense of expectation was generated among the II - The current situation of self-employ- population following the publication of the list of activities ment in Cuba authorised for the exercise of self-employment. The fact cannot be ignored that these activities allowed people to The spread of self-employment was acknowledged hire a workforce, which also constituted another significant during the Fourth Party Congress held in October 1998. Its source of employment. adoption aimed to “give direction to the individual work of However, uncertainties remain. Although, among the a group of people whose contribution to the provision of positive aspects of this alternative form of labour, legis- goods and services could be of benefit to society, if in time it lation has been established for entitlements to retirement becomes an alternative source of employment in the face of benefits and sick and maternity leave, none of the legisla- the country’s shrinking traditional sources of employment”.8 tion passed concerning the activity in question (except the This measure was implemented gradually and was recently published Labour Code, which does not provide based on centrally-oriented legislation, leaving broad room solutions for all de facto situations which occur through the for manoeuvre for local authorities who can still decide to- exercise of this activity) contains regulations concerning the day which activities to allow in their territory. It also created labour relationships that currently exist in this sector. This conditions which enabled the state to control work carried is why some still consider this activity as an alternative tain- out, for the most part, illegally and in the black market. Self- ted by uncertainty, and in which profits made do not always employment still exists today, at a time when the critical correspond to the fulfilment of their dreams. stage of the Special Period has passed, proof that society Private sector independent occupations can be held in 201 professions. This broad, legally acknowledged labour Social Security. Periódico Juventud Rebelde, 21 June 1998. spectrum has tended to be concentrated for the most part within 6 activities across the country, which incorporate 8 Rodríguez García, José Luis “Cuba 1990-1995: reflexiones sobre approximately 30% of all registered workers. una política económica acertada”. Revista Cuba Socialista, page 25.

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This situation is the same, with some variations in goods and services for the population. It also confirms the order, in all the different provinces. At local level it can be importance of enforcing the law, fight impunity and protect seen in every region in the country, and since 1993 has re- self-employed workers, the vast majority of whom fulfil the mained more or less stable. Of course, the self-employment regulations. sector does not exist to the same extent in every province, but it seems to be a phenomenon specific to the biggest A - Self-employed work in Havana cities, where a broad or growing network of wage-paying economic activities is developing or has established. In this As pointed out by Raúl Castro Ruz, President of the context, this alternative form of economy fulfils additional Council of State and Council of Ministers, in the National functions for the development of the traditional economy, Assembly on 18 December 2010, it is the Party and Govern- especially in the field of personal services, which offers ment’s responsibility to facilitate the administrative control most of the major opportunities in terms of consumption of self-employed workers and not generate prejudices and supply of consumable goods. against them. This should be accompanied by strict compliance with the Law and payment of taxes and an effort to At the end of February 2014, there were 455,577 self- discourage illegal practices in this sector. employed people in Cuba. 65% of these workers were loca- ted in the provinces of Havana, Matanzas, Villa Clara, Ca- Current statistics magüey, Holguín and Santiago de Cuba.9 Since the increase in flexibility (October 2010) the num- The most commonly exercised activities are the pro- ber of workers adopting this form of employment has stea- duction and sale of food products with 57,776 people (13%). dily increased, rising to 6 times the initial number (22,312) Cargo and passenger transport accounts for 47,733 people and reaching 129,476 valid licences at the end of February (10%), letting of housing, rooms and spaces for 29,952 (7%) 2014, most of which were issued by the Work Directorate. and hired workers for 91,978 (20%); these are mainly asso- On average more than 1,600 people13 register each month. ciated with the first two activities.10 The types of activity with the largest number of autho- Among the total number of people authorised to carry risations are:14 out self-employed work, 68% reported they had no previous labour relationship, 18% are also employees and 14% are - Hired workers 25,287 (20%) retired.11 - Food (4 activities) 13,816 (11%) - Transport drivers 13,385 (10%) 302,269 people are affiliated to the special social secu- - Landlords 10,576 (8%) rity regime, and 99% of them contribute to the ‘cuota mími- na’.12 15 authorised activities alone encompass 91,992 workers (72.2%). The increase in the number of self-employed workers from 157,000 to over 455,000 is proof of the effectiveness The above data clearly show that there are a significant of this option as a source of employment and production of number of self-employed workers who have started to work as hired workers. This situation will require greater attention and regulation to ensure that these workers do not find 9 Data taken from the article entitled “Trabajo por cuenta propia en themselves without protection, since they are ultimately Cuba crece y se valida como opción de empleo en Cuba”, CUBADE- governed by Labour Law because they are employees in a BATE, 19 March 2014, available at http://www.cubadebate.cu/espe- relationship of subordination and dependence, characteris- ciales/2014/03/19/trabajo-por-cuenta-propia-crece-y-se-valida- tics of the labour relationship as defined by law. como-opcion-de-empleo-en-cuba/ (revised 12 June 2014 2.05pm) and Intervención de directivos del MTSS, MITRANS, ONAT y el CAP de La Habana en la Mesa Redonda del 19 de marzo de 2014. 10 Idem. 11 Idem. 13 Idem. 12 Idem. 14 Idem.

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10 Self-employment in Cuba

B - Payment of taxes • Continuing the development of defence directorates and increasing fighting ability and capacity. When the Guidelines for the Economic and Social Policy • Financing expenditure for social assistance and secu- of the Party and the Revolution were passed, the people of rity in the long and short term. Cuba expressed a desire to update the country’s economic model with the aim of ensuring the continuation and per- For these reasons the tax system must gradually pro- manence of socialism, the development of the economy, the gress in both application and amplitude as a mechanism rise in the population’s standard of living and, at the same for redistributing income within society. Furthermore, it time, the development of ethical and political values among should constitute a means for regulating economic activity citizens. in order to increase efficiency and stimulate labour, as well as contributing to the application of measures designed to Guideline 56 states that “Fiscal policy must contribute develop the model for economic management. to the sustained increase in efficiency of the economy and the income of the State Budget, with the aim of supporting 85% of the State Budget comes from taxes, charges and public spending in specific domains, and maintaining an contributions paid by enterprises and state organisations, adequate financial balance, taking into account the particu- fulfilling the principle that the country’s economic system lar characteristics of our economic model.”15 will continue to be based on socialist ownership by the entire population of the fundamental means of production. Tax contributions account for 64%16 of the total income of the State Budget. Consequently, the payment of taxes, Since 2011, due to greater flexibility in terms of self- charges and contributions secure the greater part of finan- employment and creation of other forms of human resource cial resources for the maintenance of essential public ser- management in the private sector, the share in the State vices for the population, such as: Budget of such forms of management has increased from 1% to 3%. These contributions are destined for municipal • The continuation of studies for pupils in pre-school, budgets in the towns where such workers live and benefit primary, secondary and higher education. from most provisions and services. • Functioning and improvement of the healthcare system. • Subsidies for people to carry out construction work III - Contractors, Labour law and regulations in their homes. • Conservation and restoration work on dwellings by As we have already mentioned, the increase in the the State. scope of self-employment has also affected people who, • Broadcasting through national and local broadcasters without being a family member of the self-employed wor- and channels, and the development of cultural and artistic ker, may contribute to the activity, considering themselves offerings across the country. employees of the latter. They are regulated under autho- • Funding for sport, which includes supplementary rised activity no 145 of Resolution No. 42 of the Ministry for payments to athletes, coaches and other sport specialists. Labour and Social Security, and are defined as being “no different from the worker employed by self-employed business owners in any activity, or upon the request of creators 15 6th Congress of the Communist Part of Cuba, Guidelines for the and artists, carrying out the tasks assigned according to the Economic and Social Policy of the Party and the Revolution, 18 April development of the activity.”17 In this way they constitute a 2011. form of self-employment which supports another self-em- 16 Data taken from the article entitled “Trabajo por cuenta pro- ployed worker. On one hand, the idea is held that authori- pia en Cuba crece y se valida como opción de empleo en Cuba”, CUBADEBATE, 19 March 2014, available at http://www.cubadebate. cu/especiales/2014/03/19/trabajo-por-cuenta-propia-crece-y-se- 17 Resolution No. 42 “Concerning the activities that can be exer- valida- como-opcion-de-empleo-en-cuba/ (revised 12 June 2014 cised as a self-employed worker” of the Ministry for Labour and 2.05pm) and Intervención de directivos del MTSS, MITRANS, ONAT Social Security, of 22 August 2013, Sole appendix, activity No. 145, y el CAP de La Habana en la Mesa Redonda del 19 de marzo de published in the Gaceta Oficial No. 027 Special Edition, 26 Septem- 2014. ber 2013.

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sing this particular form of work may lead to the exploita- unprotected, since his livelihood depends on this source of tion of labour by other people, something that Cuba’s social work. As a result, the worker ceases to receive income, a system rigorously fights against. However, the structural situation which could be damaging to him and put him in a change that the country is currently undergoing requires difficult and disadvantaged position. The guidelines could a broadening of perspectives. In this way certain dogmatic be modified, allowing in such cases for the worker to be prohibitions maintained by the government for decades was temporarily re-assigned to other sites or the authorisation lifted. Nevertheless, this prohibition still exists in the regu- to be temporarily transferred to another trustworthy per- lations in Article 21 of the Constitution, which states that: son. However, the regulations do not currently take a stance “Personal ownership is assured for: income and savings on this point. obtained through personal labour, dwellings owned with valid title of possession, and other possessions and objects In the same way a legislative initiative is required for the necessary for the satisfaction of the material and cultural regulations on the resolution of conflicts between owners needs of the person. and workers for reasons of dismissal. For these cases a reasonable period of time should be established in order “Likewise, ownership is assured for labour means and for the worker to be able to search for another job. Equally, instruments, whether individual or family, which cannot a hypothetical situation in which the worker leaves during be used to acquire income from the use of other people’s exercise of the activity should also be covered in the legis- labour”.18 Thus a regulation of lessor importance such as lation. In this case the worker must inform the owner in the resolution which authorises self-employed activities, advance so that the latter can search for a replacement. All enters into conflict with the Constitution of the Republic. these situations can lead to an interruption of work which This is something which calls for modification. may have a considerable effect on the individuals. There is no legal framework for such instances, which occur in prac- Article 6 of the Resolution 41/2013 establishes regu- tice today, hence the need for the promulgation of regula- lations for exercising self-employed activity together with tions concerning these aspects. hired workers. This regulation sets the principle of an independent activity with the aid of workers, where the latter It has been revealed that the legislation makes no men- always remain under the authority of the owners of the tion of such workers in a position of subordination and their business. right to rest breaks, working hours, paid annual holiday and the establishment of a decent wage. All this depends on the As a requirement for the initiation of this particular proposal made by owner of the autonomous activity, and labour relationship, the request by the self-employed busi- the corresponding acceptance or refusal of the conditions ness owner should be mediated. Once the activity has been by the hired worker. Continued subjection to long working authorised it will be necessary to register this person as a hours places this person in a situation which damages their self-employed worker. health and emotional stability. The agreements of the In- ternational Labour Organization (ILO) take a strong stance Resolution 41/2013, which contains the “Regulations on this matter, and in virtue of our country’s participation, concerning the Exercise of Self-employment”, mentions the regulation of working hours and labour conditions has temporary interruption of the exercise of activity by the become even more pressing. owner. In the final paragraph of article 12, it decrees that in the case where the owner cannot exercise the activity, In general, it is considered that regulations concerning the contractor cannot do so either.19 This leaves the latter self-employed workers refer mainly to the principal owner and not his workers. Given the shortcomings analysed, it 18 Constitution of the Republic of Cuba (Updated), revised and is essential make changes in terms of the rights currently agreed upon by the Consultancy and Legislation Direcotrate of the granted and those not currently covered by regulations, Ministry for Justice, Havana, Dirección de Legislación y Asesoría both for the owner and the hired worker. del Ministerio de Justicia. Editora del Ministerio de justicia, la Ha- bana, 2004. 19 Resolution No. 41 “Regulations concerning the exercise of self- August 2013, article 12, final paragraph, published in the Gaceta employment” of the Ministry for Labour and Social Security, 22 Oficial No. 027 Special Edition, 26 September 2013.

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The spread of self-employment, now irreversible, and two codes and this, as we have already mentioned, jeopar- opportunities for cooperatives which have experimentally dises the future. begun to emerge outside of the agricultural sector, is imminent. It is becoming clear that non-state forms of human In article 57 of the Code only the state sector is concer- resource management may lead to major developments in ned by breaks at work, which raises the following questions: Cuban socialism and the economy, hence the need to pro- are there no breaks in the private sector? What happens tect employed workers in such a labour relationship, in when there is an interruption of work in an SME? several of the authorised activities. We believe that the first section of chapter VII which refers to Special Labour Relationships should be removed, IV - Regulations established in the Labour since there should be no difference between workers in pri- Code. Law 116 of 2013 vate SMEs and the state sector. We must play it safe. In the future these enterprises’ We believe that the Labour Code, published in June contribution could be important, and we would be putting 2014, will not resolve the current problems in this sector, these workers at a disadvantage in relation to state enter- hence the importance of carrying out amendments which prises. will address the aspects discussed above. Articles 91 and 92 set forth the following: “Article 91: We believe that the stipulation of its objectives must be within the working day workers are allowed one or two changed, given the change in context, as should its overall breaks of a maximum duration of thirty (30) minutes as defi- aim, which should be to regulate labour relationships or ned by the employer, for rest and personal needs, in such establish general foundations for the exercise of all forms a way that does not affect labour or modify the duration of of labour. There should be no distinction between relation- the day or the fulfilment of the established working hours”. ships of employment or subordination between independent workers. “Article 92: In activities organised into one or two working shifts, a break for lunch or dinner of no less than thirty Article 74 subparagraph a) and article 87 of the Labour minutes is allowed, outside of the duration of the working Code establish working days of over 8 hours, contradicting day and not counted within it. article 46 of the Constitution of the Republic of Cuba, which stipulates 8 hours of work per day. The long struggle by the In activities in which production or services are conti- international working class, including in Cuba, in order to nuous and without interruption, and if necessary due to the achieve this milestone, must be taken into consideration. hours of the working shift, the worker is allowed a break to eat, which must not exceed thirty minutes, included within Concerning those who work for other people within the the working day and in addition to the time allowed for rest self-employment sector. and personal requirements”.20 In article 9 of the Code, through the use of the term Do these articles also consider as “natural persons” “natural person”, there is an attempt to disguise private- other forms of human and enterprise management? sector activity and the “self-employed worker” who hires paid workers, when really this person is the owner of an This question is valid for all subsequent articles in this SME (small and medium-sized enterprise). It establishes chapter. unfounded differences which compromise the future of how this situation is addressed in various parts of Labour Law, Why are there discrepancies between article 74 subpa- and in other parts it is not clear which directive should be ragraph c), which fixes a minimum of one day of rest per applied. week and seven calendar days a year of paid holiday for If the desire is to promote SMEs, let this be clearly stated and let tax and banking mechanisms etc. be used, 20 rather than the Labour Code, which in practice establishes See Law 116 of 2013, Cuban Labour Code, published in the Ga- ceta Oficial No. 29 Special Edition of 17 June 2014.

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workers hired by a natural person, and article 101 of the Code which states that workers have a right to one month a year of paid holiday for every eleven months of effective work? What is the reason for this prejudice against workers hired by natural persons?

The same thing occurs in article 108 which establishes the possibility of granting unpaid leave within the state sector to workers with family responsibilities requiring their care and attention. Can employers only grant unpaid leave in the state sector?

Chapter XI, in which the articles relate to labour protection, safety and hygiene, seems to cover only workers and entities in the state sector, when it should refer to all workers and employers.

Article 133 raises the question of the worker hired by a natural person (SME) who suffers a work-related accident or becomes ill for reasons imputed to the employer; in such cases what is the responsibility of the latter?

From the above analysis, we consider that even with the amendments introduced into the Cuban Labour Code, the questions relating to the rights and obligations of workers hired by natural persons have not all been answered.

The judiciary is convinced that this process of change is necessary and that it is in accordance with objective targets. It consequently implies an additional effort in order to guarantee sufficient knowledge and preparation from a technical and professional point of view, based on an examination of all the legislation in force.

All those who are consultants and whose job it is to offer advice and legally represent these workers should do so with professionalism and a sufficient level of quality. Simi- larly, those with the honourable yet difficult task of judging any kind of dispute should work on the basis of the rational, objective, technical and legal analysis that is required by each case.

Revue de droit comparé du travail et de la sécurité sociale

Nouri mzid Professor and former Dean of the Faculty of Law at the University of Sfax (Tunisia) Research themes: Labour law, Social security law, Fundamental freedoms and rights. Publications: ~ N. Mzid, Regards croisés sur l'évolution des systèmes de sécurité sociale : nouveaux défis et perspectives, Faculty of Law, Sfax, 2010. ~ N. Mzid, M. Vericel, Constitution et droits des travailleurs, Faculty of Law, Sfax, 2014.

Fundamental social rights' insertion in the new Tunisian Constitution: an efficiency being tested

abstract

The new Tunisian Constitution has largely consolidated the fundamental social rights that are considered a requirement for the building of any welfare state. Similarly, it has established a set of guarantees to ensure their effectiveness, even if it remains doubtful in the current context of Tunisia.

key words : Fundamental Social Rights, Constitution, Dignity, Social justice.

résumé La nouvelle Constitution tunisienne a largement consolidé les droits sociaux fondamentaux qui sont considérés comme une exigence de l’édification de tout État social. De même, elle a institué un ensemble de garanties en vue d’assurer leur effectivité, même si celle-ci reste douteuse dans le contexte actuel de la Tunisie.

mots clés : Droits sociaux fondamentaux, Constitution, Dignité, Justice sociale.

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he adoption of the new Tunisian Constitution ciable from the founding principles of a legal system.2 But on 27 January 2014 marked a decisive step this formal conception of fundamental social rights remains in the process of democratic transition trig- insufficient to account fully for their significance. In actual gered by the so-called revolution for dignity fact, it is not because a right is enshrined in the constitutio- and freedom. The origins of this revolution nal order that it is necessarily a fundamental right, but it is Tare mainly related to the blatant failings of the previous because it is fundamental that it should be enshrined in the regime in terms of social justice and freedoms. Today, the constitution or recognised as having constitutional value”.3 establishment of fundamental social rights in Tunisia has According to the second conception, which we can qualify become an essential requirement for the creation of a ge- as substantial, the fundamental rights are those that relate nuine welfare state founded on democratic principles. to the person, that is to say that are inherent in the very essence of humanity in the sense that they are indispen- Qualified as the “rights of the victims of the existing sable to human dignity. order”,1 social rights, such as the right to work, the right to social protection, the right to health or even the right to But the two conceptions of fundamental social rights a minimum income, are presented as instruments of social are not mutually exclusive. On the contrary, they are com- transformation by making corrections to the liberal econo- plementary insofar as the constitutionalisation of these mic system. But it is not easy to identify them. It is true that rights expresses their central place in the legal order as they fall within what is known as the second generation of a consequence of their fundamental nature and conveys a human rights, to distinguish them from the civil and politi- conception of the welfare state founded on democratic prin- cal rights that constitute the first generation of these rights. ciples and whose goal is the achievement of social well- While civil and political rights are conceived as freedom- being. rights, enforceable on the State in the sense that they can The constitutionalisation of fundamental social rights only be fully exercised if they are shielded from State inter- depends on the socio-political context of each country and ference, social rights are essentially entitlement-rights, the approach adopted by the constituent power on this sub- which are due by the State and which suppose, if they are ject. This approach may rest on a simple, brief formulation to be effectively implemented, the active and positive inter- of the general principles forming the basis of the funda- vention of the public authorities according to the budgetary mental social rights, as it may consist of inserting in the resources available. But this classic distinction between Constitution a more or less comprehensive and ordered ca- freedom-rights and entitlement-rights needs to be put into talogue of those rights. In Tunisia, the Constitution of 1 June perspective. In fact, all the fundamental rights can justify 1959 was not very generous in terms of fundamental social both an abstention on the part of the State, forbidding it rights. Without ignoring them completely, it did not include from infringing the rights of individuals, and its active in- a detailed and ordered list of those rights. Today, the context tervention with a view to protecting them against violations has changed profoundly and it is not surprising to observe perpetrated by third parties and adopting the measures a consolidation of the fundamental social rights by the new necessary to their implementation. Constitution (I). But beyond that finding, we must still ask Above all, the identification of the fundamental social ourselves how effective these rights are, given that they rights requires identifying the criteria for determining their remain dependent on the existence of a set of guarantees fundamentality. At the risk of oversimplifying the analysis, necessary to their protection (II). in this respect we can distinguish two main conceptions: the first refers to the standards that set out these rights, whereas the second refers more to the eminent quality of 2 This formal dimension overlaps with another, namely the struc- the holders. According to the first so-called formal concep- tural dimension: the fundamental rights confer order on a legal tion, fundamental rights are guaranteed by the Constitution system, ensure its coherence and mark its identity. or international standards. In this sense, they are indisso- 3 M. Tarchouna, «L’insertion des droits sociaux fondamentaux dans la constitution : un impératif de la révolution pour la dignité», in Mélanges offerts à la Doyenne Kalthoum Meziou, Tunis 2012, p. 1 G. Burdeau, Traité de science politique, t. VI, p. 466, note 3. 750-751.

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I - The consolidation of the fundamental so- dignity is considered as one of the most significant traits in cial rights by the new Constitution the evolution of this branch of the law in recent years.9 By its dynamism, it opens up new perspectives and gives a new This consolidation may be illustrated through two com- impetus in order to provide better protection of fundamental plementary movements. The first involves the assertion of social rights. a set of general principles that are particularly important as vectors of the fundamental social rights (A). The second Like dignity, solidarity long remained a philosophical is attached to the reinforcement of the substance of these and ethical notion before it was elevated to a legal principle. rights guaranteed by the Constitution (B). This principle goes hand in hand with citizenship, implying a belonging to a political and social community based on the A - The assertion of general principles, vectors adherence to shared values and principles, which guarantee the cohesion of that community. Enshrined since 2002 in of the fundamental social rights Article 5 of the old Tunisian Constitution, the principle of The new Tunisian Constitution is full of general prin- solidarity is today reasserted in the 2014 Constitution whose ciples intended to extend to all branches of the law, in par- preamble explicitly refers to fraternity and human solidarity. ticular in terms of fundamental social rights, such as the Now, the idea of solidarity runs through the entire system principles of dignity, equality and social justice. of social regulation. It is thus the very essence of the role of the trade unions charged with expressing and defending A philosophical and ethical concept before being beco- the collective interests of the profession they represent.10 It ming a legal concept, dignity refers to the very essence of the is also the foundation, as well as the purpose, of any social human being and expresses a universal standard: man must security system designed as a set of collective solidarity be seen as an end in himself and not as a means.4 From this mechanisms based on income redistribution.11 point of view, dignity is the foundation upon which the entire The notion of solidarity refers to another principle, philosophy of fundamental human rights is built. In Tunisian which was ignored by the old Constitution but which is law, the principle of dignity, which has been raised to the solemnly asserted by the 2014 Constitution, namely the rank of a constitutional principle since 2002,5 is now reinfor- principle of social justice. Stating in its preamble that this ced by the new Constitution, which in its preamble refers to principle is a foundation of the system to be set up, this new the “elevated status of humankind” and announces that the Constitution charges the State with working to achieve so- State “assures all citizens the conditions for a dignified life”6 cial justice, sustainable development and balance between and that it “protects human dignity”.7 Now, it is not difficult to identify the close link between the principle of dignity and fundamental social rights. Furthermore, social legislation has always had the aim first and foremost of eliminating all forms of exploitation that reduce human labour to a thing ted by the ILO in 1944, which solemnly states that labour is not a or a commodity.8 Today, the emergence of the concept of commodity and that all human beings «have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity» (§ II-a). 4 Cf. Ch. Girard and S. Hannette-Vauchez (dir.), La dignité de la 9 personne humaine, éd. PUF, coll. Droit et justice, 2005. See also, Cf. in particular B. Van-Rompu, La dignité de la personne hu- M.L. Pavia and Th. Revet (dir.), La dignité de la personne humaine, maine dans les relations de travail, Th. Univ.de Lille II, 2006; Th. éd. Economica, 1999. Revet, «La dignité de la personne humaine en droit du travail» in M.L. Pavia and Th. REVET (dir.), La dignité de la personne humaine, 5 See Article 5 of the Constitution of 1959, as amended by the préc., p.137. See also our article «Dignité et travail salarié» in constitutional law of 1 June 2002. Droits et culture, Mélanges en l’honneur du Doyen Y. Ben Achour, 6 Article 21. CPU, Tunis, 2008, p. 539. 7 Article 23. See also Article 47 asserting that children are gua- 10 Cf. J.M. Verdier, «Syndicalisme et fraternité», Dr. Soc., 1990, p. ranteed the right to dignity as regards their parents and the State. 127. 8 It is significant to note that the first text internationally to en- 11 Cf. A. Mouelhi, «La solidarité : jeu et enjeux en matière de pro- shrine the notion of dignity was the Philadelphia Declaration adop- tection sociale», Rev. Travail et développement, n° 26, 2007, p. 7.

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regions.12 Social justice is at once a project aimed at fur- essential social need and its protection is a mission that a thering collective well-being and a regulation tool for cor- modern State can no longer ignore. In Tunisia, health and recting inequalities and limiting their devastating effects on education have been brandished as a priority by the public social cohesion13. authorities since independence.17 But if the 1959 Constitu- tion suffered an “acute normative gap” in this area,18 the The principles of solidarity and social justice are clo- new Constitution solemnly states in Article 38 that “Health sely linked to another general principle, that of equality. In is a right for every human being”, whilst charging the State fact, this principle has been rooted in Tunisian constitutio- with guaranteeing preventative healthcare and treatment nal history since the Fundamental Pact of 1857. The 1959 for every citizen and providing the means necessary to Constitution also enshrined this principle in a formal sense, ensure the safety and quality of health services. The same namely the equality of all before the law,14 but without expli- article adds that the “State shall ensure free healthcare citly mentioning the notion of equality through the law or for those without means and those with limited income”. the concrete equality that serves a corrective function with This constitutional enshrinement of the right to health now a view to righting unequal situations, and which in particu- constitutes a constitutional standard implying that the State lar translates into what is known as positive discrimination. has an obligation to guarantee the entire population access However, that did not prevent the old constitutional council to a health system as wide-ranging and fair as possible. from referring to this notion of positive discrimination as an objective with a constitutional value.15 Today, this notion The protection of people against life’s hazards, through is explicitly enshrined in the new Constitution, in particu- collective solidarity systems, the main purpose of any so- lar in Article 12 which provides that “the State shall seek cial welfare system, is also an expression of an elementa- to achieve social justice (…) based on (...) the principle of ry need; that of every human being to have a minimum of positive discrimination”. material security enabling him to lead a decent life. Unlike the 1959 Constitution, which said nothing on this subject, As well as the general principles asserted by the new the new Constitution explicitly states in Article 38 that the Constitution, the latter has also reinforced the substance State “shall guarantee the right to social assistance in of the fundamental social rights guaranteed by the consti- accordance with the law”. This provision thus put an end tution. to the uncertainty surrounding the constitutional value of this right and confirms, in this respect, the central role B - The substance of the fundamental social of the State, whose intervention in matters of social pro- rights in the new Constitution tection constitutes the backbone of any policy in favour of human development. But today this intervention is faced The new Tunisian Constitution has enshrined, in a long in Tunisia, as elsewhere, with huge problems of dysfunc- section devoted to rights and freedoms, a set of funda- tions and new challenges, in particular that of balancing mental social rights some of which concern citizens, while the budget in a highly State-controlled system, at a time others are included in the fundamental rights at work. when expenditure on healthcare is constantly increasing while the social welfare organisation is faced with a pres- This category includes first of all the right to health, in sing lack of resources. It is, furthermore, regrettable that line with international standards, as a right to the highest 16 the new Constitution, like that of 1959, has remained silent possible standard of healthcare. Health is in effect an on the management of welfare funding, for which it could have provided for an annual social security financing law, 12 Article 12. thereby subjecting it to the control of Parliament. 13 Cf. N. Baccouche, «Constitution, justice sociale et reconnais- sance» in Constitution et droits des travailleurs, pub.de la Faculté de droit de Sfax, 2014, p. 61. 17 Cf. A. Aouij-Mrad, Le service public de la santé, Th. Fac. de droit 14 Article 6. et des sciences politiques de Tunis, 1990. 15 Opinion n° 34-2005, JORT n° 66 of 19 August 2005. 18 H.Ben Mrad, «Les vicissitudes du droit à la santé», in A. Aouij- 16 Article 12 of the Covenant on Economic, Social and Cultural Mrad, M-H. Douchez and B. Feauillet (dir.) Santé, argent et éthique : Rights, ratified by Tunisia in 1968. une indispensable conciliation ?,éd. l’Harmattan, 2005.

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Finally, the very vulnerable situation of certain cate- tuent body sought above all to end the ambiguity that had gories of people requires reinforced protection adapted to marked the 1959 Constitution, which guaranteed union their needs. This is the case of disabled people, who are rights whilst remaining silent on the right to strike. But the often faced with difficulties integrating economic and social wording used in Article 36 of the new Constitution seems life. It is up to the community, in that case, to adapt to their clumsy to us, as it seems to suggest that the right to strike situation and take care of their protection through appro- is only a component of trade union rights and that it is not priate measures. The rights of disabled people are entirely in itself a fundamental and independent right. To be sure, a part of human rights, but the 1959 Constitution did not for workers, the freedom to join unions without the right contain any specific provisions devoted to these rights.19 to strike would be a lame right. But that should not lead Today the protection of the disabled has an explicit consti- to a confusion between these two fundamental rights, all tutional basis in Article 48 of the new fundamental law in the more so as the freedom to join and form unions applies Tunisia. This article charges the State with protecting per- not only to employees, but also to employers, and in fact to sons with disabilities from all forms of discrimination, and any group of people with shared professional interests to with guaranteeing them “full integration into society”. defend.

The 2014 Constitution clearly also has something to Like the right to strike, collective bargaining is also contribute regarding the fundamental right to work.20 In this a corollary to freedom of association in trade unions and respect, first of all it includes the right to work that was only constitutes a fundamental right in accordance with inter- timidly referred to in the old Constitution, in its preamble. national labour standards. But the 2014 Tunisian Consti- The new Constitution, however, has given this right a more tution, like that of 1959, totally ignores this right. And yet, substantial place, solemnly stating, in Article 40 that “all collective bargaining is a practice that is strongly rooted in citizens, male and female, shall have the right to decent the Tunisian labour relations system, even if it still suffers working conditions and to a fair wage”. But this right conti- from some weaknesses, including in particular the lack of nues to be affected by a very acute structural crisis in the a clear legal framework for the bargaining process and the Tunisian labour market, where unemployment and a lack of representativeness of the negotiators, which today poses a job security are today a crucial issue and a major challenge thorny problem in a context marked by the fragmentation of for the democratic transition. the Tunisian trade union landscape. At this level, a moder- nisation of the labour relations system is now necessary, In the same vein, there are also trade union rights with to rehabilitate the representative bodies of employees and their dual, individual and collective, dimensions. Thus, the employers in their role as essential players in democratic new Constitution, whilst proclaiming in Article 35 the free- life. dom to establish trade unions, states in the following article that “the right to join and form unions is guaranteed, inclu- Also to be regretted is the failure to constitutionalise ding the right to strike...”21 With this provision, the consti- the principle of worker and employer participation, through their representative bodies, in the management of the social security schemes or other public organisations involved 19 However, the old Constitutional Council did not hesitate to adopt in the State’s economic and welfare policy. Now, this prin- a dynamic reading of the constitutional principle of equality in order to tolerate positive discrimination measures introduced by law in ciple also constitutes another important illustration of de- favour of disabled people and intended to facilitate their social and mocracy in its social dimension. professional integration (opinion n° 34-2005 prec.). The insertion of the fundamental social rights in the 20 It is worth pointing out that Tunisia has already ratified all the Constitution is certainly of great importance in setting up ILO conventions relating to the fundamental rights at work. Cf. our article «Les droits fondamentaux au travail en Tunisie à la lumière any welfare state, but it is not enough to guarantee the ef- des normes de l’OIT», Revue de la faculté de droit de l’Université de fective application of these rights, which remains dependent Liège, 2005/2, p. 245. on a set of guarantees necessary to their protection. 21 According to Article 36 of the new Constitution, the right to join and form unions foes not apply to the national army. Similarly, the right to strike does not apply to the internal security forces and customs officers.

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20 fundamental social rights in tunisia

II - The guarantees of the fundamental so- law, a situation that does not seem to us to be compliant cial rights proclaimed by the new Constitution with Article 65 of the new Constitution.

There is no doubt that the effective application of the If it is only up to the legislator to fix the basic rules re- fundamental social rights depends to a large extent on the lating to the system of fundamental rights guaranteed by intervention of the public authorities called upon to take the the Constitution, the latter logically should not abandon its measures necessary and appropriate to ensure the full im- competence by leaving the field free for regulatory autho- plementation of these rights (A). But, beyond this active role rities or the social partners to fill this gap. Now, it is not to be played by the State, the question arises concerning difficult to see that there is a deficiency on the part of the the protection of the fundamental social rights, in particular Tunisian legislator concerning certain fundamental rights when faced with violations resulting from the intervention of guaranteed by the constitution and whose exercising needs the public authorities (B). to be organised by the law. This silence on the part of the legislator can be seen, for example, with regard to the exer- A - The central role of the State in implementing cising of trade union rights in companies. Collective bargaining agreements have partially filled this legal void. But the fundamental social rights the agreement-based method, which remains an unstable The implementation of the fundamental social rights source, is far from being satisfactory when it comes to regu- above all requires the intervention of the law as the initial lating a right as fundamental as that relating to trade union regulating act. In fact, in spite of their direct applicability, freedoms in companies. This has led to a rather strange the general nature of these rights as proclaimed by the situation where a right is guaranteed constitutionally, but Constitution requires that a legal regime be organised by its regulation is left subject to the balance of power that the legislator. Thus, among the guarantees applicable to the is intimately linked to negotiation. The legislator’s silence fundamental social rights in several legal systems, the re- can also be observed in the area of public servants’ right cognition that these rights are subject to the “rule of law” is to strike, a right which is not organised by any legislation certainly of great importance.22 This solution is fully justified taking account of the specific nature of this sector. This si- inasmuch as the law, being made by Parliament, allows for lence would even seem to convey a subjacent hostility to the a genuine democratic debate and guarantees that the public notion of public servants striking, as testified by Article 107 interest will be better taken into account. In this respect, the of the Penal Code, which seeks to ban any collective stop- new Tunisian Constitution, like that of 1959, has imposed page of work that hinders the operation of public services. its requirements regarding the distribution of competences Now, this article is today manifestly contrary to Article 36 of between the legal field and that of regulations. Article 65 the new Constitution. thus lists a set of issues that are covered by the law, among The legislator’s failure in the area of fundamental them “the fundamental principles (…) of employment rights rights may constitute a sort of negative incompetence and 23 and social security”. The same article also lays down a set risks hampering the effective exercising of those rights. But of laws that must take the form of organic laws, including in the Tunisian Constitution has not provided for any means of particular those relating to freedoms and human rights, as forcing the legislature to positively intervene to guarantee well as the laws relating to the organisation of trade unions. the implementation of the fundamental social rights. Now, it is the Labour Code, promulgated by an ordinary law, that contains most of the provisions relating to trade union Beyond the intervention of the law as an initial regulating act, the effective implementation of these rights depends to a large extent on the political choices made by the 22 Cf. J. Tremeau, La réserve de loi, Compétence législative et Constitution, PUAM, coll. Droit public positif, 1997. public authorities and the financial resources that can be mobilised by the State to this effect. The enshrining of the 23 This notion must not be confused with that of the general principles of the law. In fact, the qualification of fundamental principles fundamental social rights in the constitution requires, fur- within the meaning of Article 65 only implies that the object of the thermore, that the public authorities adopt a general course standard should be reserved for the legislator. Cf. A. Jeammaud, of action with a view to guaranteeing they are fully satisfied «Les principes dans le droit français du travail», Dr. Soc. 1982, p. by taking appropriate measures. But, it must be recognised 620.

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21 Nouri mzid

that at this level the effective application of the fundamental Moreover, according to Article 120 of the Constitu- social rights seems doubtful, in the current Tunisian context tion, the Constitutional Court is the sole body competent to where expectations are constantly increasing and available oversee the constitutionality of draft laws,24 as well as laws resources are becoming ever rarer. Such a context in effect already in force referred to it by the courts in the case where risks seriously weakening, and even jeopardising, the future an exception of unconstitutionality is raised by one of the of the Constitution and imperilling the entire social edifice. parties in litigation.

The protection mechanisms against the But, outside of these mechanisms concerning the over- B - seeing of the constitutionality of laws, respect for the fun- violation of the fundamental social rights damental social rights also involves the possibility for any citizen of raising them before the different ordinary courts, This protection is imperative, especially in the face of which are also charged with guaranteeing the supremacy of abuses of state power. In fact, whilst being bound to gua- the Constitution and the protection of rights and freedoms, rantee the fundamental social rights, the state authority is as stated in Article 102. This form of justiciability, which still often considered also as their potential enemy. seems to be ignored in Tunisia, is today particularly impor- The Tunisian Constitution has thus set up a series of tant as an effective guarantee of the fundamental social 25 guarantees that are indispensable in any democratic sys- rights. It constitutes an essential issue in the building of tem with a view to ensuring the legal protection of the fun- any welfare state. The experience acquired over the last few damental rights. This includes in particular Article 49, which years in several other countries testifies, moreover, to the constitutes a central measure in the new constitutional edi- importance of the role of the judge, whose intervention can fice in terms of fundamental rights. Thus, in accordance be decisive for the effective implementation of the funda- 26 with this article, it is no longer possible for the legislator to mental social rights. organise the freedoms and rights with constitutional value However, it must be acknowledged that the justiciability as it pleases. It is true that it still has the power to introduce of these rights is not always sufficient to ensure their effec- restrictions in this area, but when exercising that power it tive application. Indeed, the implementation of the funda- will not be able to undermine the essence of the freedoms mental rights is not merely a legal problem. It is a problem and rights guaranteed by the constitution. Any restriction on whose solution depends on several factors external to the these freedoms and rights must in effect be justified, and legal system, and therefore the judge, and which above all necessarily compatible with the requirements of a civil and requires a mobilisation of all the actors in civil society so democratic State, whilst adhering to the principle of pro- that the latter is capable of appropriating the human values portionality to the objective sought. That is to say that the that form the basis of the rights proclaimed by the Constitu- legislature is subject to a requirement of non-denaturation tion. The future of the process of democratic transition set which aims to guarantee adherence to the intangible core in motion in Tunisia in 2011 will, in a large measure, depend that constitutes the substance of any constitutional law. on the ability of all it to respond to this major imperative. Although it is still possible to impose limitations by legislation on the fundamental rights proclaimed by the 24 This oversight can also be exercised at the request of the Pres- Constitution, in compliance with the conditions laid down by ident of the Republic, the head of the Government or thirty mem- Article 49, it must be said that there can be no amendment bers of the Assembly of the Representatives of the People. that undermines these rights, as specified in paragraph 2 25 On the question of the justiciability of the fundamental rights, of the same article. The aim is to give these rights a certain see in particular, under the direction of D. Roman, «Droits des intangibility, by a sort of prohibition of social regression in pauvres, pauvres droits ? Recherche sur la justiciabilité des droits the sense that the established principles that are enshri- sociaux», La revue des droits de l’homme, juin 2012. See also Niki- ned in the Constitution in this area must be considered as tas Aliprantis, «Les droits sociaux sont justiciables», Dr. Soc., 2006, p. 158. irreversible. This guarantee is also reinforced by Article 144 26 of the Constitution, according to which the President of the Cf. P. SARGOS, «Approche juridictionnelle de l’effectivité des droits sociaux», Justice et Cassation, 2006, p. 423. Assembly of Representatives of the People must submit any proposal to revise the Constitution to the Constitutional Court to verify that it does not affect any matters that have been declared intangible.

Revue de droit comparé du travail et de la sécurité sociale

Francisco VILLANUEVA ProfessorLuisa -C Schoolora ofzz Managementa (ESG UQAM - Canada) and Lawyer (Bar Association of Lima - (Peru) Professeur de droit du travail, Université du Molise, Italie. ThèmesDaniel de recherche CRES : PDroitO-VILLARREAL du travail de l’Union Européenne, droit de grève et régulation duResearch conflit Assistantcollectif, transformations- Human Resource de l’entreprise,Department (ESG-UQAMarbitrage et -droit Canada) du travail. Parmi ses publications : ~St Hardé Timespha forn Hardie BERBans: Fixed-TermNSTEI NWork and So Called Non-Regression Clauses in the Era of Flexicurity, European Law Journal, Vol. 17, No. 3, May 2011, pp. 385–402. ~Professor l nuovo conflitto - Legal Departmentcollettivo. Clausole (Faculty di of tregua, Political conciliazione Science and e Lawarbitrato - UQAM nel -declino Canada) dello sciopero,Jill HA FrancoNLEY Angeli, Milano, 2012. Professor at School of Social Work (University McGill - Canada) Sylvie GRAVEL Professor - School of Sciences and Management (UQAM - Canada) Emmanuelle OSTIGUY Research Assistant - Human Resource Department (ESG-UQAM - Canada)

Temporary foreign workers in Quebec: not quite paradise

abstract This article analyzes the enforcement of temporary foreign workers’ fundamental rights in Quebec from the perspective of the Charter of Rights and Freedoms of this Canadian province. Fieldwork that allowed direct contact with groups of Central American workers highlights several situations and practices that violate these rights. These violations are due in large part to their extremely precarious situation created by their employment and migratory statuses. key words : Discrimination, Fundamental rights, Seasonal employment, Temporary foreign workers, Right to privacy..

résumé Le présent article analyse le respect des droits fondamentaux des travailleurs étrangers temporaires au Québec du point de vue de la Charte des droits et libertés de la personne de cette province canadienne. Une recherche de terrain ayant permis le contact direct avec des groupes de salariés centroaméricains met en évidence plusieurs situations et pratiques qui vont à l’encontre de ces droits. Ces atteintes aux droits fondamentaux découlent en grande partie de la situation de précarité extrême dans laquelle se trouvent ces travailleurs en raison de leur statut d’emploi et migratoire. mots clés : Discrimination, Droits fondamentaux, Travail saisonnier, Travailleurs étrangers temporaires, Vie privée.

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24 Temporary foreign workers in Quebec

ach year, a large contingent of tempora- conditions associated with it are occasionally detailed in the ry foreign workers (“TFWs”), mostly from social sciences literature and in the media.5 The situations Mexico and Central America (Guatemala and able to be indexed with the help of case law being rather Honduras), arrives in the Canadian province rare, our research is aimed at documenting respect for of Quebec to work in different sectors of TFWs’ fundamental rights by juxtaposing our fieldwork fin- Eeconomic activity1 that are struggling with staffing needs.2 dings and the applicable legal standards. Given the key role This economic migration stems from recruitment activi- played by TFWs in the operation of certain seasonal indus- ties associated with government programs for low-skil- tries, as well as the growing number of employees required led workers with no access to permanent resident status, for the development of these business sectors, it seems whose stay in the country depends on the duration of their appropriate to take a legal view that accounts for what ac- employment contract. This migratory flow has attracted the tors in that sector say, and particularly what the workers interest of the scientific community in recent years and has themselves say. For this reason, we went into the field to given rise to several studies, addressing various aspects of meet the different stakeholders involved in the participation these employees’ participation in the Quebec and Canadian of TFWs in the Quebec job market, in particular groups of labor markets.3 However, it has proved difficult to prepare employees who may end up in a potentially vulnerable posi- a comprehensive assessment of the situation as regards tion.6 This is an innovative methodological approach from respect for the rights of TFWs. The precarious situations the perspective of labor law studies in Quebec. these employees are in, both in terms of job security and of migratory status, contribute to the creation of an employ- This article focuses on the issue of respect for the ment context that isolates them and discourages them from fundamental rights of TFWs in Quebec, in particular those asserting their rights.4 This is a problem compounded by rights that are protected under the Quebec Charter of Hu- linguistic, cultural and social barriers. man Rights and Freedoms (the “Charter”).7 In the course of our fieldwork, several situations implicating those rights The reality of the TFW employment context seems have been identified. The discourse analysis showed cer- cloaked by a veil of uncertainty, although the poor working

5 See in particular: T. Basok, Tortillas and Tomatoes: Transmigrant 1 Primarily in the agricultural, horticultural and food processing Mexican Harvesters in Canada, Quebec, McGill-Queen’s University sectors. Press, 2002, 192 p. 2 The local workforce is uninterested in occupying the positions of- 6 This article is part of a multidisciplinary research project inves- fered in these sectors, particularly due to their seasonality, the low tigating a plurality of labor issues connected to the work done by wages offered, and the arduous working conditions. In this regard, TFWs. The project is in the form of a qualitative and documen- see Gravel et al., “Les coûts relatifs à l’embauche des travailleurs tary research study, with three different data sources. The first étrangers temporaires dans les secteurs saisonniers, l’analyse des consists of semi-structured individual interviews, held between employeurs du Québec” [The costs of hiring temporary foreign wor- 2009 and 2012 with 40 key sources focusing around TFWs, inclu- kers in seasonal sectors, an analysis of employers in Quebec] in ding employers, managers of recruitment firms, representatives of Canadian Ethnic Studies (to be published in 2016). government ministries in charge of migration programs, consular 3 See in particular J. Fudge and F. Macphail, “The Temporary officials, union representatives and representatives of non-govern- Foreign Worker Program in Canada: Low-Skilled Workers as an mental organizations, representatives of government agencies Extreme Form of Flexible Labor” in Comparative Labor Law and responsible for the protection and enforcement of workers’ rights Policy Journal; No. 31, 2009, p.101-139; J. Mclaughlin, “Social De- and human rights. The second consists of four focus groups held terminants of Health of Migrant Farm Workers in Canada,” Interna- in 2011 and 2012, with participants including a total of 31 TFWs tional Migration Research Centre, Wilfrid Laurier University, 2009; from Guatemala and Honduras, working for at least five different J. Hanley et al., «Good Enough to Work? Good Enough to Stay!, Or- companies. The third source, not used in the context of this article, ganizing Temporary Foreign Workers” in C. Straehle and P. Lenad consists in the analysis of 181 reports on inspections conducted (ed.), Legislated Inequality: Temporary Labour Migration in Cana- between 2009 and 2012 by the Commission des normes du travail da, Montreal, McGill-Queens University Press, 2012, p. 245-271. (the Quebec administrative agency in charge of overseeing the im- 4 Re-employment of TFWs the next year is at the employer’s dis- plementation of the Loi sur les normes du travail [Labor standards cretion. Furthermore, they cannot change employers as they wish, act], L.R.Q., c. N-1.1. As of the first of January 2016, the Commis- cannot leave their jobs without fear of being sent back to their sion des normes, de l’équité, de la santé et de la sécurité du travail countries of origin, and have no possibility of changing their immi- has assumed this responsibility). gration status. 7 Charte des droits et libertés de la personne. L.R.Q., c. C-12.

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tain recurring practices that have led to violations of the tution of Canada, which is the fundamental standard of the rights of TFWs. Given the limited number of individuals and legal system, it does in principle have precedence in case of workplaces approached, we must acknowledge that this is a conflict with an ordinary Quebec provincial law.8 an exploratory study. Our objective is not to establish firm conclusions able to be generalized to all seasonal industries In the field of labor relations, the application of the in Quebec where TFWs are found. This study does however Charter is the source of a significant body of case law identify situations and practices that highlight the fact that concerning cases where the fundamental rights of em- the exercise of rights guaranteed by the Charter in the world ployees have been the focus of controversy. Therefore, the of work is not a matter to be taken for granted, especially in Charter increasingly occupies a place of primary impor- the case of business sectors where the structural inequality tance in terms of the regulation of the employment relation characteristic of the employment relationship is aggravated and union-management relations.9 The phenomenon has by the extreme precariousness of the employees, as well as grown so large that there is now talk of a “constitutional by the social and cultural factors inherent to their condition entrenchment” of Quebec labor law. This process results in as foreigners. the introduction of new obligations for the employer in the context of the employment relation and imposes significant We will first explain the legal grounds that justify the restrictions on his human resources practices10 application of the Charter in the case of TFWs (1). We will then proceed to present the scope of the protections provi- B - The Charter’s applicability to TFWs ded by the Charter, in terms of each of the rights in question (2). Lastly we will examine each of the situations detected In terms of the regulations applicable to migrant wor- that involve a likely infringement upon those rights (3). kers, it should be pointed out that their work-stay in the country is regulated by a number of normative instruments. First, it should be pointed out that their immigration status I - The Quebec Charter of Human Rights and and entry into the country are governed by the federal immi- Freedoms and its application to TFWs gration system. Now, a first anchorage point of the Charter

Since we are analyzing respect for certain fundamental 8 rights of TFWs in light of the Charter, we must first confirm The primacy of articles 1 to 38 of the Charter over other laws is that it applies to this category of employees. To do so we established in its article 52. In this regard, the Supreme Court of Canada has had occasion to state that: “...rather, it [the Charter] will first make a brief presentation of the scope and effects is a law enjoying special status, as a fundamental law, of a public, of this quasi-constitutional legislation in terms of labor quasi-constitutional nature” in Béliveau St-Jacques vs. Fédération relations (A). We will then examine the specific case of the des employées et employés de services publics inc. [Federation of legal framework applicable to TFWs, and the reasons they public service employees, inc.] [1996] 2 R.C.S. 345, 371. come under the protection of the Charter (B). Lastly, we will 9 It is nevertheless noteworthy that remedies under the Charter, address the question of how the Charter applies to the TFW though essential as statements of principle, are often not conside- selection and recruitment process. Because this process red the most effective for ensuring better working conditions, par- occurs outside of Quebec, this issue needs to be studied in ticularly because of the notorious procedural delays; in this regard, a specific manner (C). see: Pinay (Filipino Women’s Organization in Quebec) vs. Commis- sion des droits de la personne et des droits de la jeunesse, [Com- mission on human rights and the rights of youth] [2012] QCCS 4965. A - The scope and effects of the Charter in Other remedies exist, amongst others, remedies under the Loi sur terms of labor relations les normes du travail [Labor standards act] (L.R.Q., c. N.-1.1). 10 See: G. Trudeau, “Libertés individuelles et relations de travail : The Charter guarantees respect for fundamental hu- un point de vue canadien” [Individual freedoms and labor relations: man rights in Quebec. It is a legal instrument that applies a Canadian perspective], in P. Auvergnon, Libertés individuelles et as much to relations between the Quebec government and relations de travail : le possible, le permis et l’interdit. [Individual citizens as to legal relations between individuals, and which freedoms and labor relations: the possible, the permitted and the enjoys quasi-constitutional status. This means that, while prohibited] Éléments de droit comparé, [Elements of Comparative the Charter does not have the same status as the Consti- Law] Bordeaux, Presses Universitaires de Bordeaux, 2011, pp. 233- 267.

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26 Temporary foreign workers in Quebec

from the perspective of its application to TFWs derives from compromised due to the obstacles faced by migrant wor- the exclusive responsibilities of the Quebec government in kers when seeking access to justice. Access to the courts matters of migration, either in regard to the “selection of is limited, for example, by certain systemic and structural candidates for its territory” or, as in the case of TFWs, when barriers. First, the temporary duration of their stay makes provincial consent is required at the time Canada issues a the proper conduct of court proceedings difficult. Complai- work permit.11 nants who need to leave the country will therefore have difficulty making the necessary follow-up for their complaint, In regard to labor law, jurisdiction in principle for such since their presence, or that of their colleagues, in order matters lies with the provincial authorities.12 Firstly, in the to give their testimony at the hearing is compromised.15 case of foreign nationals from Mexico in particular, under Added to this are language barriers, lack of knowledge the Seasonal Agricultural Workers Program (SAWP), the regarding the remedies available and how to proceed, and terms of these contracts are delineated by a bilateral state then pressure from the fact that the work permit is linked agreement.13 A framework contract based on that agree- to an employer. TFWs therefore sometimes find themselves ment is provided for employers hiring TFWs from that having to choose between keeping silent and continuing country. Its content makes explicit the obligation incumbent their stay in the country, or filing a complaint and suffering upon employers to comply with the provincial system of law the consequences (non-rehiring, immediate return to their of which the Charter is a part, and with the specific public country of origin, etc.). The combination of these limits, policies in place regarding employment. This same logic of added to the possibility of a settlement during the course subjection to the labor laws of Quebec prevails as well in of the proceedings if a complaint is filed, explain the scarce regard to the contracts of TFWs from Guatemala or Hondu- jurisprudence involving TFWs. In the absence of jurispru- ras, who come to Quebec under another government tem- dence, a survey of data in the field is one way to evoke vio- porary migration program also overseen by the Canadian lations of the Charter. Ministry of Employment and Social Development. Secondly, it is relevant to add that the Quebec Charter does apply to C - The applicability of the Charter to the TFWs, even though these persons have not been granted TFW selection and recruitment process permanent residency in Canada. Case law and doctrine are unequivocal about the rights guaranteed to temporary resi- While the application of the Quebec Charter to the work dents, regardless of status.14 of TFWs is obviously not in doubt, the cross-border nature of the hiring process and the presence of intermediaries However, although there is no doubt about the Char- make recruitment a practice whose subjection to the Char- ter’s applicability in this regard, its enforcement and effec- ter is seemingly still not formalized. In the case before us, tiveness - like those of the labor laws themselves - are the selection of candidates is undertaken on behalf of the potential employer by a recruiter assigned to the workers’ 11 M. Carpentier, “L’applicabilité de la Charte des droits et libertés country of origin. However, the role of this third party is de la personne aux travailleurs migrants” [The applicability of the transitory: “the contract resulting from their involvement Quebec Charter of Human Rights and Freedoms to migrant wor- is an employment contract between an employer and an kers], Commission des droits de la personne et des droits de la employee”.16 This means that the recruiter is not a party to jeunesse du Québec [Quebec commission on human rights and the the employment contract. rights of youth], June 2010, p.13. 12 Toronto Electric Commissioners vs. Snider, [1925] A.C. 396 (C.P.) 13 Memorandum of Understanding Canada-Mexico, 1974, Ottawa. 15 The possibility of an appearance outside the period established 14 Singh vs. Ministre de l’Emploi et de l’Immigration, [Ministry of by the employment contract thus depends on the often prohibitive Employment and Immigration] [1985] 1 R.C.S. 177, par. 35; Suresh cost of transport and the delivery of a new visa to enter Canada. vs. Ministre de la Citoyenneté et de l’Immigration du Canada, [Ca- There is the possibility of testifying by video, in keeping with the nadian Ministry of Citizenship and Immigration] [2002] 1 R.C.S. principles of natural justice and procedural fairness, but access to 3, par. 44; H. Brown and C. Brunelle, “Les statuts respectifs de that possibility is often difficult to obtain. SeeChamale Santizo vs. citoyen, résident et étranger à la lumière des chartes des droits” Commission des relations du travail [labor relations board], (2011) [The respective statuses of citizen, resident, and alien in light of the QCCS 2990. charters of rights] C. de D., No. 689, 1988, p.690. 16 Carpentier, op. cit. note 11, on p. 30.

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In the presence of such a recruiting service, is the Que- hand, the provisions of the Charter tending to impact all the bec employer free of all liability arising from the recruiters’ legal situations related to employment contracts have the involvement if their actions run contrary to the Charter? To inherent characteristics of peremptory norms. On the one answer this question, we must start from the premise that hand, both the quasi-constitutional value of the Charter and the selection and recruitment process is closely linked to the domain that it governs - namely the protection of fun- the employment relationship.17 Next, we have to keep in damental human rights - allow the provisions in question mind that the Tribunal des droits de la personne (Human here to be assigned effect as imperative standards. On the Right Tribunal) has ruled that employers “logically incur a other hand, the achievement of the aims of these provisions liability to the applicants for a job if [employees] face dis- - particularly in regard to the protection of the dignity, pri- crimination during [the] selection process,” even if a third vacy, and integrity of employees and efforts against employ- party bound to the employer by a service contract is involved ment discrimination - could be compromised if the staffing in this process.18 Thirdly, as will be demonstrated in the fol- needs of Quebec employers were fulfilled through selection lowing paragraph, we consider that despite the existence of and recruitment practices that infringe upon human dignity. an international element, the application of the Charter to In sum, because of the Charter’s nature as a peremptory the TFW selection and recruitment process is in harmony norm, i.e., as a mandatory law intended for the protection of with the rules of private international law in force in Quebec, fundamental interests of a labor-related nature, we believe and does not require recourse to conflict-of-law rules. that its provisions are applicable to the TFW selection and recruitment process, even if it takes place abroad.21 The From the perspective of international law, it is possible question of the direct accountability of recruiters outside to establish the applicability of the Charter by recognizing Quebec, however, remains to be resolved.22 it as a norm of mandatory application under Quebec private international law.19 The doctrine clearly acknowledges the possibility of assigning effect to obligatory internal II - Rights protected by the Quebec Charter legal rules in the context of international situations invol- of Human Rights and Freedoms ving relationships between individuals, without resorting to conflict-of-law rules, provided that this is necessary for In this section, in order to get a better understanding of achieving the objectives of such standards.20 In the case at our findings, we will make a succinct theoretical presentation of the content and the scope of the fundamental human rights that, according to our study, have been the object of 17 Authors such as Trudeau thus consider the contract-formation violations, namely the right to equality (A), the right to pri- period to constitute a distinct stage of the employment relationship. Trudeau, op. cit. note 10, on p. 266. vacy (B), the right to physical and psychological integrity (C) and the right to fair and reasonable working conditions (D). 18 The court found that the employer was liable for acts of discrimination committed by an independent placement advisor, arguing that “no one is in principle responsible to third parties for acts committed by their co-contractors. However, we are dealing with employment relations here, which are governed by certain rules of Laws program for a master’s degree in law (LL.M.), 2010, p. 58 to specific to labor law.” Commission des droits de la personne et des 65; Emanuelli, op. cit., note 19 on p.226-228. droits de la jeunesse [Commission on human rights and the rights 21 Emanuelli, op. cit. note 19 on p. 229. This conclusion is consistent of youth] vs. Institut Demers Inc., (1999) R.J.Q. 3101; REJB 1999- with the opinion of the Commission on human rights and the rights 14673 (T.D.P.), para. 95-112. of youth, according to which the Charter not only concerns the acti- 19 According to Emanuelli, “peremptory norms essentially corres- vities of employers, but also those of intermediaries: Commission pond to the imperative rules adopted by the legislature in order to des droits de la personne et des droits de la jeunesse: [Commission regulate the activities of private individuals on the national level.» on human rights and the rights of youth] M. Carpentier, “La discri- C. Emanuelli, Droit international privé québécois [Quebec Private mination systémique à l’égard des travailleuses et des travailleurs International Law], 3rd ed., Montreal, Wilson & Lafleur, 2011, on migrants” [systemic discrimination against women workers and p. 226. migrant workers], Commission des droits de la personne et des 20 J-L Baudouin et P-G Jobin, Les obligations, 6th ed., Cowansville, droits de la jeunesse du Québec, December 2011, p. 34. Yvon Biais, 2005, on p. 203, par. 151; G. Brochu, “La relation de tra- 22 See in particular: Judy Fudge, “Global Care Chains, Employment vail internationale : contraintes et possibilités,” [international em- Agencies, and the Conundrum of Jurisdiction: Decent Work for Do- ployment relations: challenges and opportunities] Paper presented mestic Workers in Canada” (2011) 23:1 Canadian Journal of Women at the Faculty of Graduate Studies at Laval University in the Master and the Law/Revue femme et droit 235.

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28 Temporary foreign workers in Quebec

A - The right to equality employment on the basis of bona fide occupational requirements. According to this rule, these are certain distinctions, The Charter provides protection against discrimina- exclusions or preferences related to aptitudes or qualification under article 10 on the right to equality. Under its pro- tions that may be necessary to hold a particular position, visions, “all persons have the right to the recognition and and are therefore not considered discriminatory. This rule exercise in full equality of the rights and freedoms” enshri- must be interpreted restrictively, and the burden is on the ned in the Charter. It is forbidden to exercise distinctions, employer to demonstrate that these professional require- exclusions or preferences with the effect of nullifying or ments are justified by criteria developed in case law.24 impairing such rights on the basis of “race, color, sex, pregnancy, sexual orientation, civil status, age except as provi- B - Protection of Privacy ded by law, religion, political convictions, language, ethnic or national origin, social condition, handicap, or the use of The right to privacy is guaranteed by article 5 of the any means to offset the effects of such handicap.” Accor- Charter. According to the Supreme Court of Canada, the law ding to the jurisprudence of the Supreme Court of Canada, allows individual persons to “make fundamentally personal in order to prove discrimination within the meaning of the decisions without undue external influence.”25 Moreover, Charter, three conditions must be met. First, a person must the Quebec Court of Appeals has provided clarifications re- have been subjected to distinction, exclusion or preference. garding its content. This concept thus covers, inter alia, the Second, the differential treatment must be based on any of right to privacy, the right to the independent management the grounds mentioned in article 10 of the Charter. Third, of one’s personal and family life, the right to secrecy and this treatment must result in the nullification or impairment confidentiality, the inviolability of the home, and the right to of the individual’s right to equality in regard to the recogni- the protection of information relating to one’s health, family tion or exercise of the rights protected by the Charter.23 and love life, and sexual orientation.26

More specifically, in terms of employment, article 16 In the context of the employment relation, employees of the Charter explicitly prohibits any act of discrimination may have certain expectations as to respect for their priva- in hiring, apprenticeship, probationary periods, vocatio- cy. Following the Court of Appeal, “this relationship of legal nal training, promotion, personnel changes (transfers and and functional dependency does not affect [...] all relations movements), temporary layoff, suspension, termination, between employer and employee, particularly outside of dismissal and job classification. Discrimination in regard to the establishment [...]. The relationship of dependency in working conditions is also expressly prohibited. the execution of work does not entail employee consent... to any infringement of privacy.”27 Employees have made use As regards the hiring process, which includes the steps of the protection offered by article 5 of the Charter on many of selection and recruitment, in addition to the prohibition occasions and in different contexts.28 provided under article 16, the Charter introduces two further rules relevant to our study. Article 18 applies to intermediaries, prohibiting them from exercising discrimination 24 See in particular Brossard (City of) vs. Quebec (Commission des in the receipt, classification or processing of job applica- droits de la personne [Human Rights Commission]) (1988) 2 RCS tions. This prohibition also covers the submission of job 279. applications to prospective employers. Article 18.1 in turn 25 Godbout vs. Longueuil (City of), [1997] 3 R.C.S. 844, par. 97, prohibits employers and intermediaries from asking job ap- [1997] A.C.S. nº 95. plicants for information regarding the grounds of discrimi- 26 The Gazette (Division Southam inc.) vs. Valiquette, [1997] R.J.Q. nation mentioned in article 10 of the Charter (age, marital 30, 1996 CanLII 6064, [1996] J.Q. nº 4045 (C.A.). status, sex, etc.). 27 Syndicat des travailleuses et travailleurs de Bridgestone/Fi- restone de Joliette (C.S.N.) [Joliette Bridgestone/Firestone wor- It should be added that article 20 of the Charter does kers’ union] vs. Trudeau, [1999] R.J.Q. 2229 (C.A.). allow employers to institute conditions limiting access to 28 For example, in challenging the electronic monitoring of employees (Union des routiers, brasseries, liqueurs douces et ouvriers de diverses industries, section locale 1999 et Brasserie 23 Commission scolaire régionale de Chambly [Chambly Regional Labatt Ltée (Montréal) [Teamsters, Brewery, Soft Drink and Mis- School Board] vs. Bergevin, [1994] 2 R.C.S. 525. cellaneous Workers Local 1999 and Labatt Brewing Company Ltd.

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C - Protection of physical and psychological [Labor standards act], violations of the standards set by that integrity law - including those relating to pay, working time, hours of rest and holidays - can be used to define the concept of fair Article 1 of the Charter protects, in general, the right to and reasonable conditions within the meaning of the Char- life, security and personal integrity, and article 4 provides ter. 34 Generally, article 46 has not been applied in an iso- the right to the protection of dignity. In regard to employ- lated manner by the courts so much as in connection with ment, article 46 provides that employees have the right to other articles of the Charter, in order to reinforce the basis working conditions that do not violate their health, safety of the decisions pronounced. Article 46 has been applied and physical integrity. According to the courts, the “integri- in various work-related situations: for example, in order ty” protected by the Charter also includes the psychological to challenge excessive working hours,35 in order to assert dimension.29 These provisions have been repeatedly invoked the right to obtain compensation for services provided as an by employees in Quebec, for instance in order to challenge employee,36 or in order to challenge unwarranted electro- arbitrary medical examinations30 or to oppose the execution nic surveillance in the workplace.37 It has also been invoked of tasks that put them in danger.31 in situations of discriminatory38 or psychological harassment.39 D - The right to fair and reasonable conditions of employment III - Violations of fundamental rights to Article 46 of the Charter guarantees the right of wor- which TFWs may fall victim kers to fair and reasonable conditions of employment. Mo- rin et al. state “[that] it is difficult to accurately determine During the interviews described previously, we identi- the exact scope of this statement of principle, considering fied certain events that after further analysis did prove to the rarity of case law on this subject.”32 As for the Supreme qualify as violations of fundamental human rights. In some Court of Canada, it has shown some reluctance to settle cases, our observations suggest that these would not be the interpretation of the provision, but has emphasized that isolated events, but widespread practices. public policy must be violated in order to plead unreasonable conditions of employment.33 For example, in light of the public policy nature of the Loi sur les normes du travail 34 Loi sur les normes du travail, [Labor standards act] L.R.Q., c. N-1.1. 35 Centre universitaire de santé McGill et Association des résidents (Montreal)], [ 1999] R.J.D.T. 648 (T.A.), random screening tests for de McGill, [McGill University Health Center and McGill Residents’ alcohol and drug use (Section locale 143 du Syndicat canadien des Association] (2011) RJDT 853 (TA), request for judicial review, 2011- communications, de l’énergie et du papier [Communications, ener- 07-07 (CS), 500-17-066547-111. gy and paper workers local 143] vs. Goodyear Canada Inc., (2008) 36 th R.J.D.T. 24 (C.A.), etc. Dejoie vs. Apollon, C.A.Q. nº 200-09-000067-873, December 4 , 1990. 29 Quebec (Attorney General) vs. Roy, [2009] QCCS 3003. 37 Paquin vs. Distribution Nadair Ltée, D.T.E. 92T-905 (C.T.). 30 Commission des droits de la personne et des droits de la jeu- 38 nesse [Commission on human rights and the rights of youth] vs. Commission des droits de la personne du Québec [Quebec Institut Demers Inc., (1999) R.J.Q. 3101; J.E. 99-2243; REJB 1999- human rights commission] vs. Commission scolaire Deux-Mon- 14673 (T.D.P.). tagnes, [Deux-Montagnes School Board] (1993) R.J.Q. 1297 (T.D.P.). On the applicability of article 46 of the Charter to TFWs, see: A-C 31 Fraternité des policiers de Laprairie Inc. et Laprairie (Ville de), Gayet, “La conformité des conditions de travail des travailleurs [Fraternal order of police of Laprairie Inc. and Laprairie (City of)], agricoles migrants au Québec avec l’article 46 de la Charte des (1997) T.A. 46. droits et libertés de la personne interprétée à la lumière du droit 32 F Morin, J-Y Brière, D Roux and J-P Villaggi, Le droit de l’emploi international,” [Compliance of the working conditions of migrant au Québec [Quebec employment law], Montréal, Wilson & Lafleur, farm workers in Quebec with article 46 of the Charter of Human 2010, p. 250. Rights and Freedoms interpreted in light of international law] Re- 33 Tremblay vs. Syndicat des employées et employés profession- vue québécoise de droit international [Quebec International Law nels-les et de bureau section locale 57, [Office and Professional Review], n°126, 2010, p.131. Employees Local 57] (2002) 2 R.C.S. 627, par. 17. 39 Côté et Assurancia Marcel Hamel Inc., 2012 QCCRT0004.

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30 Temporary foreign workers in Quebec

A - Discrimination in hiring 2 - Discrimination based on the applicant’s age

1 - Discrimination based on the applicant’s sex According to testimony received from employees, employers and recruiters, successful applicants generally Our research shows that, with a few rare exceptions, the have to be between 25 and 40 years of age during their first persons who come to work in the agricultural sector in Que- contract.44 In some cases, the maximum age sought may bec as TFWs are generally male.40 Among the arguments be 35. This exclusion based on age, contrary to the Char- used to justify this gender segregation, some consider that ter, seems to be related on the one hand to preconceived these are positions that require “physical strength,” which notions about the physical requirements associated with they associate with men.41 Based on this stereotype, and agricultural work, employers’ desire to maximize return on during the recruitment process, candidates for positions in labor, and biased assumptions according to which persons the agricultural sector are subjected to tests designed to over 40 years of age are unable to properly perform such assess their physical strength. This type of test has no basis jobs. As for the refusal to hire people under 25 years of age, other than preconceived notions assuming that in order to it would seem that this distinction does not result from a perform tasks related to farm work one must have physi- bona fide occupational requirement, but simply from a pre- cal abilities supposedly matching those attributed to males. conception assuming that young people would lack the ma- Thus, according to several respondents,42 at the time of the turity necessary to meet the challenges involved in working pre-employment assessments performed in their countries abroad and adequately fulfilling the responsibilities related of origin (Guatemala and Honduras), candidates would to the job. From the perspective of the Charter, in particular be required to carry bags of fertilizer on their backs of an in light of article 20 concerning the concept of a bona fide approximate weight of 50 kilograms, and walk a distance occupational requirement, such mere speculation does not equivalent to twice the length of a football field. This type of constitute valid grounds for the a priori exclusion of younger test, which has no proven link43 to the skills or qualifications candidates. required to perform the job in question, has the effect of excluding females from the pool of candidates, if this exclu- 3 - Discrimination based on the applicant’s marital sion was not already explicit when the job applications were status being sorted through. This constitutes a situation of discri- 45 mination on grounds of sex, which is in conflict with articles According to several respondents, preferential treat- 10, 16, 18 and 20 of the Charter. ment is given to married candidates over single persons during the recruitment process. On the one hand, based on mere prejudice, some make the argument that married em- 40 Results corroborated by available statistics: women repre- ployees are more serious and responsible. Others assume sented 6.8% of Guatemalan TFWs in 2008; as for female workers that married candidates have more reasons to want to re- from Mexico, this proportion was 5% in 2010. A Ancheita Pagaza turn to their country of origin than single persons. Whatever and G Bonnici, ¿Quo Vadis? Reclutamiento y contratación de traba- the case may be, we are still dealing here with assumptions jadores migrantes y su acceso a la seguridad social : dinámicas de and preconceived notions, which do not constitute justifica- los sistemas de trabajo temporal migratorio en Norte y Centroa- tion for the exclusion of single candidates. Such an exclu- mérica, [recruitment and contracting of migrant workers and their access to social security: dynamics of temporary migrant labor in sion would be in violation of articles 10, 16 and 18 of the North and Central America], Research Report, Instituto de Estu- Charter. dios y Divulgación sobre Migración (INEDIM) [institute for migration studies and outreach], Mexico City, February 2013, pages 18 and 37. 44 Interviews No. 25/40 with a recruitment agency and No. 37/40 41 Interview No. 7/40 with a service organization in the agricultu- with an employer in the food processing sector, as well as group ral domain and No. 37/40 with an employer in the food processing discussion No. 2/4. However, there are certain companies that do sector. not impose any employment conditions related to employee age, 42 Interview No. 25/40 with a recruitment agency and all four focus and have for example recruited employees who were 18 or 19 years groups. old. 43 In this regard, see Colombie-Britannique [British Columbia] 45 Interviews No.25/40 with a recruitment agency, No.2 and No.32 (Public Service Employee Relations Commission) vs. BCGSEU, with consular officers for TFW countries of origin, and No.37/40 (Meiorin), (1999) 3 RCS 3. with an employer in the food-processing sector.

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B - Violation of bodily and psychological employees who had to work with no special protection for integrity up to 16 hours a day, exposed to the cold of freezer rooms where temperatures are maintained at several degrees be- The precarious situation TFWs are in, primarily as a low freezing.51 result of their employers’ unlimited power in regard to their rehiring, is undoubtedly a source of abuse that may result in One group of workers has also reported psychological practices that endanger those persons’ integrity. abuse by the employer’s representative, comprised primarily of verbal violence, to the point where some felt that they Several testimonials have reported that TFWs working were treated “like animals.”52 in agriculture are subject to long and grueling workdays.46 Thus, it is not uncommon for such persons to be required to C - Invasion of privacy work between 60 and 90 hour work-weeks, or to work days of 11 or more hours during certain periods, in particular du- Most of the violations of privacy to which TFWs are sub- ring harvest time.47 It is also not uncommon for these long jected arise from the fact that TFWs generally live in accom- days to follow closely upon one another, denying employees modations provided by their employers for the duration of the rest days to which they are entitled,48 or even the pro- their stay in Quebec. This situation means that many em- per number of hours of sleep. For example, a work-day may ployers feel that they have a right to control what happens last until 11 pm, and the next day start at four or five in the inside the housing units, or even to access them freely and morning.49 without the employees’ consent. For example, one group of TFWs indicated that the day after a long and exhausting Because this is seasonal work, which primarily takes day of work, their employer would sometimes enter their place during the spring and summer, these long shifts may homes to require them to go back to work immediately.53 coincide with periods of extremely hot weather in Quebec, In other cases, workers have been prohibited from recei- when the humidity index may reach up to 40 degrees or ving any visits, resulting in situations of isolation or even more. Some respondents have stated that despite these confinement. At times, employer control may even be so extreme conditions, some employer representatives refuse excessive as to involve permanent monitoring by video sur- to grant employees breaks to rest or drink water.50 One veillance systems.54 union representative reported receiving complaints from The information gathered has also highlighted other situations involving serious violations of the right to privacy. According to one respondent acting on behalf of a 46 Discussion Group No.1/4; Interviews No.2/40 and 32/40 with trade union,55 the employees of one farm were prohibited consular officers, No.29/40 and 30/40 with horticultural producers from directly contacting people outside, except by the use of and No.17/40 with an agricultural producer. telephones operating on a phone line shared with their em- 47 According to Article 59.0.1 of the Loi sur les normes du travail ployer. In another case, a farm owner candidly reported that [Labor standards act], an employee may refuse to work “work more TFWs working for him are prohibited from moving freely in than 4 hours beyond his normal working hours or more than 14 the neighboring village because of his fear that they might hours per 24-hour period, whichever period is shorter;” or “more than 50 hours in a given week.” 48 Under Article 78 of the Loi sur les normes du travail, [Labor 51 Under section 51 of the Loi sur la santé et la sécurité du tra- standards act] a worker “is entitled to a rest period of at least 32 vail [Occupational health and safety act], employers “must take the consecutive hours per week.” However, “In the case of an agricul- necessary measures to protect the health and ensure the safety tural worker, that day of rest may be postponed to the following and physical integrity of the worker.” (L.R.Q., c. S.-2.1). week with the employee’s consent.” All indications are that the 52 employee’s consent in this case is rather a theoretical matter. Articles 81.18 and subsequent of the Loi sur les normes du tra- 49 vail [Labor standards act] protect employees against psychological Discussion Group No.1/4. harassment. 50 Discussion Group No.1/4. Article 79 of the Loi sur les normes 53 Discussion Group No.1/4. du travail [Labor standards act] states that “After a work period of 54 five consecutive hours, the employee is entitled to one unpaid 30- Interview No.3/40 with a representative of a government agency. minute period for meal purposes.» 55 Interview No.28/40.

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32 Temporary foreign workers in Quebec

disturb the neighbors or cause trouble. Any travel by these with multiple beds, where there was no space for their per- employees is organized by the employer and takes place sonal items.60 This was in a unit housing nearly one hundred under his control. In addition, certain rules regarding the persons, with only five showers and six toilets available to employees’ stay in the housing units may directly impact them. In our own field observations, we visited one Mon- the organization of their private lives. Such is the case, for treal housing unit for TFWs where physical, humidity and example, of prohibitions against consuming alcohol outside sanitary conditions were inadequate, with eleven people working hours56 or against receiving partners with whom sharing three rooms with bunk beds.61 There is no doubt they may have intimate relations.57 that the conditions in which these workers live are completely unreasonable and therefore violate the guarantees of D - Violations of the right to fair and article 46 of the Charter. reasonable conditions of employment

It has been observed that employees’ right to fair and Conclusion reasonable conditions of employment has not been defi- Over the course of this article, we have had occasion ned with great precision by case law, thus giving rise to the to highlight the fact that the Quebec Charter of Human tendency for the scope of article 46 of the Charter to cover a Rights and Freedoms allows employees to assert their fun- great variety of situations. In light of this jurisprudence, we damental rights in the context of the employment relation- consider many of the situations described either during the ship, a legal relationship characterized by unequal power group interviews or by the various respondents individually among the parties. The Charter provides all workers with to constitute violations of TFWs’ right to fair and reasonable a significant framework of legal protections enabling them conditions of employment: days and weeks of long and to assert, for example, the right to equality, the right to pri- exhausting work, the absence of reasonable rest periods, vacy, the right to physical and psychological integrity, and insufficient protective equipment, limitations on the exer- the right to fair and reasonable conditions of employment. cise of the right to privacy, etc. Examples of the Charter’s application in the context of labor In our view, it is appropriate that there should be added relations are abundant, to the point that today we can refer to this inventory certain situations regarding the housing to the process of the constitutional entrenchment of labor conditions experienced by TFWs.58 In this regard, the main law. This recognition of employed persons “in all their in- problem observed by the investigation is the overcrowded tegrity and individuality”62 raises questions about the real housing made available to employees. Thus, certain res- impact of these guarantees from the perspective of certain pondents have indicated that workers are sometimes cram- categories of employees, in particular those characterized med into rooms with dimensions that are clearly inadequate by an extremely precarious status. Such is the case, no given the number of people they must accommodate. For doubt, for temporary foreign workers engaged in seasonal example, one respondent stated that he saw “one room work activities. housing 24 workers, where there was no space between the The total number of individuals we encountered in our double beds, and they had to climb in from the ends,” and fieldwork was quite limited, and does not allow us to draw another “where up to seven beds were pushed together.”59 generalized conclusions from the data obtained. However, Other respondents complained of being housed in rooms direct meetings held with employees involved have revealed that in some cases the situation of respect for the fun- 56 Interview No.16/40 with an employer in the food-processing sec- damental rights of TFWs is far from impeccable. We have tor. observed numerous violations involving the non-respect of 57 Interview No.17/40 with an agricultural producer. the right to equality (due to employment discrimination on 58 It should be emphasized that, according to article 1 of the Loi the basis of sex and age), the right to physical and psycho- sur la santé et la sécurité du travail [Occupational health and safety act], the concept of an «establishment» is not limited to a work- 60 place in the strict sense, but also includes “sites made available to Discussion Group No.1/4. workers by their employer for housing purposes.” 61 Discussion Group No.3/4. 59 Interview No. 28/40 with a union representative. 62 G. Trudeau, op. cit. note 10, p. 266.

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logical integrity (extremely long and exhausting work days, performed under adverse conditions), the right to privacy (unlimited employer access to employee residences, lack of independent management of employee free time, employer control over visits received by employees, and restrictions on their communications), and the right to fair and reasonable conditions of employment (conditions for the performance of work, poor housing conditions).

While the extensive case law accompanying the application of the Charter demonstrates the gradual internali- zation of this instrument by employees in Quebec, the fact remains that its application in seasonal work sectors where TFWs are found can hardly be taken for granted. In fact, it would seem that difficulties exist in the assertion of the Charter’s protections in these sectors due to of several factors. First, because the training stage of the employment contract primarily takes place abroad and in the absence of effective mechanisms to ensure the accountability of the employers (or recruiters). Second, because there are great obstacles to union penetration in some of these seasonal industries, and it is precisely the unions who have been able to assert fundamental workers rights in the different various sectors of activity in which the Charter has been applied. Third, because extreme precariousness is the distinctive element of the employment relation of TFW. These employees must tolerate employer excesses that violate their fundamental rights, in order to avoid any contentious situations that might tend to jeopardize their return to work the following year. The adverse effects of this precarious status are amplified when they are accompanied by elements of a social and cultural nature associated with these employees’ ethnic and national origins, which weaken their position as citizens of a society into which they face difficulties integrating. Nevertheless, further research is needed to provide a complete picture of the state of affairs in regard to the application of the Charter in economic activities of a seasonal nature, where the presence of TFWs continues to increase, and to accurately identify the reasons underlying the problems faced by the effective constitutional entrenchment of fundamental rights for workers in these sectors, with a view to improving their working and living conditions.

Revue de droit comparé du travail et de la sécurité sociale

Ljubinka KovaČević Professeur,Assistant Professor, Dean of University Graduate of School Belgrade, of Law,Faculty University of Law . of Kobe ThèmesResearch de themes: recherche Individual :modicto labour officimint law; Social apitia security descimin law. ni comnis ipsus, venti ducimaio. ParmiPublications: ses publications : ~- Legal subordination in the employment relationship and its limitations, Belgrade, University of ~Belgrade, Faculty of Law, 2013, 601 pages. - „Personal scope of labour legislation: (un)reliability of the criteria for qualification of subjects of labour law protection“, Zbornik Matice srpske za društvene nauke, No. 152 (3/2015), pp. 505-519.

Development of employment relationship concept in the law of Serbia: From authentic self-management concept to late (re)affirmation of the contractual concept*

abstract The concept of employment relationship depends, to a large extent, on the social and economic changes, making it fragile and in need of constant reviewing and refining. This is confirmed by the development of the Serbian law, which included several stages, starting with the adoption of the contractual concept, to the development of an authentic concept in which the employees, keeping with the ideas of Yugoslav self-management legislation, were given certain prerogatives that traditionally belonged to the employers, to the (re) affirmation of the contractual concept that happened near the end of the XXth century. key words : Republic of Serbia, Yugoslav Self-Management Legislation, Employment Relationship, Legal Subordination.

résumé Le concept de la relation de travail dépend, dans une grande mesure, de changements économiques et sociaux, ce qui la rend très fragile et nécessite sa remise en question et son raffinement constant. Ceci est confirmé par le développement du droit serbe qui comprend plusieurs phases, en commençant par l’accepta- tion du concept contractuel, en passant par la création d’un concept authentique qui, dans la lumière du droit autogestionnaire yougoslave, reconnaissait même au salarié certains pouvoirs appartenant traditionnelle- ment à l’employeur, jusqu’à la (ré)affirmation de concept contractuel qui n’a eu lieu qu’à la fin du eXX siècle.

mots clés : République de Serbie, Droit autogestionnaire yougoslave, Relation de travail, Subordination juridique.

* This paper was written in the framework of University of Belgrade Faculty of Law project “The identity transformation of Serbia”.

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36 Employment relationship conafriceptq uein sduer sbudia

None of the national employment relationship systems as a result of the technological development, particularly in follow the same development pattern, but rather differ the field of monitoring the employee performance. This fac- from one country to another, depending on the country’s tor should undoubtedly be considered in combination with economic development, demographic structure, accusto- the high unemployment rate due to which some employers med employee protection regulation model and other fac- were able to exercise much stronger impact on employees tors affecting the creation and construction of the labour than that accredited to them by the law. Nevertheless, the law.1 Accordingly, the concept of employment relationship full and proper understanding of challenges lying ahead the largely relies on the social and economic changes, which modern Serbian labour law is not possible without unders- require constant review. This had been acknowledged by the tanding the key phases in the development of employment development of the employment relationship concept pre- relationship concept. They have been tackled in this article vailing in the Republic of Serbia, whose legal system origi- from the legal aspect, while proportionally smaller attention nally had not recognized the employment relationship as a has been dedicated to its (vital) political and other aspects. separate legal concept or autonomous legal institution, but had instead been fully perceived as a notion equal to the employment contract. This approach was abandoned in the I - Creation of Serbian labour law and deve- mid 30-ies of the 20th century, when it was substituted by lopment of contractual concept of employment the concept of seeing the employment relationship as the relationship form of obligation relationship based on a contract. Labour law of Serbia was constituted as an inde- Nevertheless, the concept of employment has under- pendent legal branch, shortly following the first legal inter- gone the most extensive changes only after the Second ventions in the world of work, initiated from the turn of the World War. In this period, the traditional labour law was 20th century with the objective to resolve the issues prevai- superseded by the self-management labour law that deve- lingly stirred by industrialization. The proper understanding loped quite a unique concept of employment relationship. of Serbian labour law would yet require a brief reminder Based on this concept, employees were recognized the pre- of events that preceded its independent development. This rogatives that allowed them to exercise some of manage- particularly applies for giving legitimacy to individualistic rial and other prerogatives that had traditionally belonged principles, first of all the principles of freedom and equality. to the employer, even calling into question the existence of legal subordination as an essential element of employment Feudal relations in Serbia were abolished no earlier relationship. However, in the last decade of the twentieth than 1830, while the 1838 Constitution definitely abolished century, the Serbian law reinstated the contractual concept the obligation to work for the benefit of superiors and other of employment relationship that coincided with the intro- officials (kuluk), and declared the freedom of work. This duction of political pluralism, preparing the grounds for the created the preconditions for the contractual regulation of market economy and changes that had taken place in other relationship between employers and workers, especially as areas of society. These changes were very slow, and the re- the Serbian Civil Code of 11th March 1844 confirmed the pri- sults achieved were modest, especially in view of the chal- macy of private ownership, full freedom of contract and the lenges of the transition to a market economy. As a result, the idea that labour force may be negotiated2. This resulted in contemporary Serbian labour law faced serious challenges. Many of them were connected to the emerging forms of organization and work performance, in which employees 2 Even though it contains certain elements of Serbian customary enjoyed a high degree of autonomy that was nearly com- law, the Serbian Civil Code was written based on the model of the parable to self-employment. In parallel, employers in some General Civil Code of Austria of 1 June 1811, considering that Ser- working environments expanded their prerogatives, chiefly bia had had strong political, economic and cultural ties with this country (D. Jevtić, D. Popović, Pravna istorija jugoslovenskih naroda /Legal history of Yugoslav people/, Belgrade, 1996, p. 125). Howe- ver, certain authors rightfully pointed to the fact that the content of 1 B. Hepple, “Factors influencing the making and transformation the Serbian Civil Code was to some extent, (directly or indirectly) of labour law in Europe”, in: G. Davidov, B. Langille (eds), The idea influenced by the French Civil Code. The reason for this was that of labour law, Oxford, 2011, p. 31. the French Civil Code served as an inspiration and model to the

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the assertion of the solution to establish the contractual re- an empty word.3 Appropriate protection of physical integrity lationship between the employer and the worker based on and dignity of employees thus could not be sustained wit- a contract for lease of services. Such concept also consti- hout the interference of the state, that is, without adopting tuted the grounds for a traditional, contractual concept of the law that would limit the liberty in setting the contractual employment contract, yet having additionally be inspired by parameters, aimed at preventing employers from abusing the Roman law contracts locatio conductio operarum and their power (either managerial, normative or disciplinary). operis, in the Serbian Civil Code, so that the contract for lease of services was regulated together with contract for The first move towards establishing the social justice service. Bleak, almost laconic regulation of lease of ser- was made with a considerable delay compared to other vices in this Code, is explained by the fact that at the time of European countries, bearing in mind that the most obvious its adoption, Serbia was predominantly an agrarian country, forms of exploitation of workers were limited only by the and that the number of workers who performed work based Law on Shops, adopted on 28th June 1910, at the time when on the contract for lease of services was relatively small, France was already undergoing the codification of labour le- while the legislators were neither able, nor willing to ap- gislation. While this law was intended to protect the crafts- prehend the development trends of the working class and men whose businesses had been weakened by the introduc- the practical relevance the contract for lease of services tion of the first capitalist companies as their competition, would have in the future. it contained the norms that reflected the modern workers’ legislation and the achievements of the labour movement In contrast to the status in the beginning of the 20th cen- struggle for a better position of workers. Nonetheless, their tury, when it was generally accepted, in the decades that implementation was inconsistent, first and foremost owing followed, laisser-faire doctrine lost its unswerving support. to the strong opposition of employers, but also due to the The reasons for this lie in the social, economic and political state’s involvement in the Balkan wars and the First World changes that took place meanwhile, especially with regard War. 4 to economic crises and strengthening of working class. Under the circumstances, the employment relationship was As of 1918, the Serbian labour law continued its exis- seen as the form of dependant work and it gradually gave tence as a part of Yugoslav law, bearing in mind that this was way to recognizing the necessity to protect the worker as the year when the joint state of southern Slavic countries the weaker party to the employment relationship. There was constituted – the Kingdom of Serbs, Croats and Slo- could be no smooth production process without having sa- venes, that from 1929 changed its name to the Kingdom of tisfied these needs beforehand, as practically, the formal Yugoslavia. The new state was created by joining of several equality of workers and employers had been drastically de- states or parts of other states. Even though the Kingdom teriorated. Employers abused their hierarchical supremacy, was a unitarian state, the law was largely inherited from the especially by imposing poor working conditions and evident former states – which means that it was diverse.5 In addition, misbalance in valuation of the basic contractual obligations (work and salary). The traditional contractual law, on the 3 B. S. Markovitch, Essai sur les rapports entre la notion de justice other hand, failed to follow specific requirements relevant et l’élaboration du droit privé positif, Paris, 1930, p. 149. in the world of work, given that in accepting the contract as 4 T. Kaclerovi Radni ko zakonodavstvo u Srbiji: pre Prvog svets- the sole instrument of regulating the employment relation- ć, č kog rata (Workers’ legislation in Serbia: before the First World ship, one fact was forgotten, that is, that in any relationship War), Belgrade, 1952, pp. 39-66. between the strong and the weak, freedom is nothing but 5 The process of creating a unified law was quite an ordeal, due to the resistance that generally existed because of political differences and interests of individual minority groups, accompanied with dif- Austrian legislator, and moreover, such influence was direct, which ferent legal methods and approaches and opposed viewpoints with can also be identified in several clauses of the Serbian Civil Code respect to the value of certain western models (Austro-German on containing solutions that differ from those set forth in the Austrian one side and French on the other). G. Benacchio, “Nehomogenost Code, but they appeared to be identical as the solutions of the doktorine u Jugoslaviji između dva svetska rata” (“Inhomogenous French law. B. T. Blagojevic, “L’influence du Code civil sur l’élabo- doctrine in Yugoslavia between the two world wars”), Anali Pravnog ration du Code civil serbe”, Revue internationale de droit comparé, fakulteta u Beogradu, No. 3-4/2002, pp. 338-353. See: J. Peritch, Vol. 6, N° 4/1954, pp. 733-743. “L’unification législative en Yougoslavie”, Revue de l’Université de

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the labour legislation was poorly developed, considering Instead, it was fully seen as equal to the concept of employ- that the relationship between the workers and employers ment contract, with the criteria for the qualification of this was laid down by the provisions of the civil codes,6 whereas contract comprising three elements – prestation of work, the work of the assisting staff in shops, workshops and in- salary and subordination. Such approach was abandoned in dustry was regulated by the trade and crafts laws and the the mid 30-ties of the 20th century, when, primarily for prac- work in mines was regulated by mining laws. The process of tical reasons, the notion of employment was modelled after law unification was introduced by the adoption of the Labour the German labour law.11 Inspection Law of 30th December 19217 including the Law on Protection of Workers of 28th February 1922.8 All of these legal provisions had in common that they were not shaped II - Transformation of employment so as to reflect an authentic social ideal, but instead, they relationship concept in self-management were inspired or modelled after the legislations of other socialism – transformation, ignoring or countries, especially Austria, as well as conventions and ‘extinction’ of subordination? recommendations of International Labour Organization, as 9 the Kingdom of Yugoslavia was one of its founders. The development of labour law in Yugoslavia was inter- rupted by the Second World War, while the period after the It should also be noted that the described waive of state end of war was marked with the establishment of the revo- interventionism was sufficiently strong to “dissolve“ the prin- lutionary communist government. This is the time when ciples and the concept of the civil law originally underlying huge changes took place in the field of employment rela- the regulation of the dependent work. As a consequence, tionship as well. Similarly as in other socialist countries, this also initiated the construction of the labour law as an Yugoslav labour law was developed between 1946 and autonomous branch of law, only with the difference that in 1948, to reflect the Soviet legislation and practise, more Serbian (and Yugoslav) literature, similarly as in the French specifically, following the ideology postulates of Marxism. labour law, the employment relationship was not singled This influence was initially limited to “setting an example”, out as a separate notion and autonomous legal institute.10 but after the conflict between the political leadership in Yugoslavia and the politics of the USSR, the own socialist Lyon, N°3/1934, pp. 209-243. system pathway was sought. It was in this period that the 6 The Civil Code of 11 March 1844 was applicable in Serbia, in self-management political system was introduced, bringing Montenegro the General Property Code of 25 March 1888 was in along the establishment of self-management rights of wor- place, while Croatia, Slavonia, Bosnia and Herzegovina applied the kers that included their right to manage the companies by General Civil Code of Austria of 1 June 1811 (as amended in 1914, themselves (directly or through the bodies elected by them, 1915 and 1916), while in Vojvodina, the Hungarian customary law whose discharge was under their control), without the was in effect. owner or appointed leaders or managers. The workers were 7 Official Journal of the Kingdom of Serbs, Croats and Slovenes (OJ accordingly recognized the right to decide on all questions KSCS), no. 69/IX. relating to the business operations, including their dispo- 8 OJ KSCS, no. 128/XXI, 75/XIV, 72/XXII and 135/LXII. The grounds sing with company assets and issues related to the struc- for the enactment of these laws were the provisions of the Consti- tural changes in the company. Furthermore, the workers th tution of 28 June 1921, whereby, using the German Weimar were entitled to control the operations and make decisions Constitution as a model, it was acknowledged that the workers had about working conditions, as well as the termination of been under the protection of the government, while their safety and protection were to be regulated by the law and that the ”state has employment of any staff member in the company. Enume- the right and obligation to intervene in commercial relationships rating of these rights alone, already shows that under the so as to serve justice and eliminate social conflicts” (articles 23, self-management system, workers were nominally reco- 25-27 and 31-33). gnized the majority of prerogatives that traditionally used to 9 S. Bajič, Dvajset let jugoslovanskega delovnega prava“ (“Twenty belong to the employer. At the same time, the employment years of Yugoslav labour law”), Slovenski pravnik, No. 11-12/1938, contract ceased to constitute the basis for the employment p. 322. 10 R. Lj. Živković, "Ugovor o radu i radni odnos“ (“Employment contract and employment relationship”), Pravosuđe, No. 1-2/1938, pp. 1-2. 11 Ibid.

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relationship, but instead, the employment relationship had Law of 7th April 1965.16 This concept brought about a range been established based on the integration of an employee of new issues that even included the dilemma about the in the working environment. Consequentially, the socialist existence of employment relationship and qualification of labour legislation had been built ab ovo.12 It should be noted employment relationship parties that was deepened on the that at first, the state had borne the role of an employer, but adoption of the Law on Mutual Relations between Workers after having abandoned the administrative management of in the Associated Labour of 19th April 197317 and the Law on the economy, the employer prerogatives were transferred Associated Labour of 3rd December 1976.18 to the state-owned companies and later to the commercial organizations as well. In seeking the solution for the existing dilemma of whether Yugoslav law covered the employment relationship at Building of the socialist labour law began by the adop- all and what was its substance, the authors split into se- tion of the Basic Law on the Management of State-Owned veral groups. The first group consisted of experts, such as Companies and Significant Commercial Associations by the Zdenko Has and Ljubomir Purić, who advocated the nega- Workers’ Corporate Bodies of 2nd July 1950.13 It provided for tion concept of employment relationship. They claimed that the transfer of certain prerogatives related to the control the workers’ self-management “eradicated the employ- of proper implementation of employment regulations and ment relationship substance” since the act of handing the improvement of the working conditions to workers’ cor- enterprise management over to employees eliminated the porate bodies, specifically, their governance bodies. This frustrations inherent to employee-employer interests as was followed by the first successful attempt to codify the the essential element of the employment relationship.19 labour law and include civil servants into the unique system Employment relationship was therefore understood as the of labour relations, by virtue of the provisions of Employ- “legal construction of the bourgeois labour law”, while the ment Relations Law of 12 December 1957.14 The latter law legal subordination was seen as the manifestation of “do- was the one to base the self-management on the social minance of capitalist ownership over people”. The convic- ownership.15 The major turning point in the regulation of tion that such concept of employment relationship (and employment relationships was marked by the introduction legal subordination) was sustainable solely within the fra- of the concept of mutual relations of workers, in keeping mework of the capitalist society, led to the conclusion that, with the Constitution of the Socialist Federative Republic of by contrast, the self-management system had introduced Yugoslavia of 7th April 1963 and the Basic Labour Relations the “mutual relationship between free and equal producers associated in workers’ corporate bodies”20 instead of the “traditional” employment relationship. Such standpoint 12 Due to its specificity, Yugoslav labour self-management attrac- received a more zealous support in the literature, following ted the attention of numerous authors from west Europe, which the introduction of the so-called non-ownership concept of has, among other, been evidenced by the following works: A. Meis- ter, Socialisme et autogestion: L’expérience yougoslave, Paris, the social ownership that meant that among other, an enter- 1964; G. Lasserre, L’entreprise socialiste en Yougoslavie: Gestion prise (work organization) was not entitled to the ownership ouvrière, coopératives, gestion sociale, Paris, 1964; A. Strumthal, La participation ouvrière à l’Est et à l’Ouest, Paris, 1967, pp. 137- 182. 13 Official Gazette of Federal People’s Republic of Yugoslavia (OG 16 Official Gazette of Socialist Federal Republic of Yugoslavia (OG FPRY), no. 43/50. SFRY), no. 17/65, 28/66, 52/66 and 28/68. 14 OG FPRY, no. 53/57. 17 OG SFRY, no. 22/73. 15 This was the sui generis ownership concept, that involved a 18 OG SFRY, no. 53/76, 57/83, 85/87, 6/88 and 38/88. unique form of adopting the goods in the production process, that 19 B. Peri , “Negatorska teorija o radnom odnosu“ ("Negation would have no title holder in the future – either as the individual (as ć theory of employment relationship”), Godišnjak Pravnog fakulteta in capitalism) or as the state (as in the communism of the Soviet u Sarajevu, vol. 3, 1955, pp. 157–176. type) – instead, this quasi ownership would belong to “everybody and nobody” at the same time. For the legal and economic concept 20 A. Ravnić, “Postoje li dvije stranke radnog odnosa u udruženom of the social ownership in Yugoslav law, see: A. Finzgar, “La pro- radu?“ (“Are there two parties to the employment relationship un- priété sociale en droit yougoslave”, Revue d’études comparatives der the associated labour?), Godišnjak Pravnog fakulteta u Sara- Est-Ouest, N°1/1989, pp. 85-94. jevu, vol. XXVI, 1978, pp. 165–166.

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over the means of production.21 Some authors interpreted sion into the work community organization. Acceptance of this as the hindrance for a work organization to qualify as such position eventually meant the development of legal re- a party to the employment relationship, due to which the lationship between the workers and the work organization workers, as the holders of the right to manage the socially that produced the reciprocal rights and obligations, where owned assets could exclusively enter into mutual employ- the worker becomes the member of the workers’ corporate ment relationship. This meant that each worker practically body with all managerial rights, only after the assignment concluded the employment relationship with all the other to work.24 Mutual relations between the workers are hence workers, while the relationship with the work organization not being equal to the employment relationship, conside- used to have a social and not legal character.22 ring that the worker does not have the employment-related rights and obligations towards the other member of the cor- Unlike the representatives of negation concept of em- porate body. Instead, the worker entered into the employ- ployment relationship, the other group of Yugoslav authors ment relationship with the work organization under which believed that employment relationships might also exist he/she exercised the rights, obligations and responsibilities outside capitalism, but with requisite adjustments. They towards that work organization. The work organization may accordingly asserted that even in Yugoslavia, the employ- in this respect be qualified as theemployer especially as, ment relationships existed as social and legal relationships, unlike the workers’ corporate body, it was recognized the being understood that the legal substance of employment status of the legal entity.25 On the other hand, the mutual relationship was modified to fit its new social substance. relations were established and created within the work In this respect, it was claimed that the establishment of community (between each worker, as one party, and all mutual employment relationships between the workers the other workers /workers’ corporate body/ as the other was conditional upon the existence of the legal relationship party), based on the right of each member of the workers’ between the workers and the work organization. This posi- corporate body to participate in the management. tion was most keenly defended by Aleksandar Baltić, who insisted on making distinction between the two moments Nevertheless, the above standpoint had been criticised that were crucial for the establishment of employment rela- in one part of the legal literature as incoherent. The rea- tionship: the first wasadmission of a worker to the work son for this is that aside from the work organization, the organization, and the other inclusion of a worker into the right of the use, management and disposal of socially-ow- workers’ corporate body of a work organization.23 Admission ned assets, and the right to manage and organize work, had of a worker to the work organization was thus understood been acknowledged to the workers’ corporate body seen as the basis for the creation of an employment relationship as the individual, autonomous body of the work organiza- between the workers and the work organization, but also tion (although to a lesser extent and scope). Some authors as the precondition for the incorporation of workers into believed that this fact was the evidence that the work orga- the workers’ corporate body in which the mutual relation- nizations and workers’ corporate bodies together, dischar- ship between workers are created (as the members of the ged some of the employer’s functions, meaning that no one workers’ corporate body). The legal connection established had the monopoly over the function on “the other side to the between the workers and the work organization was reflec- employment relationship“ (the employer).26 Despite these ted in the decision on the admission of workers to the work sound arguments, this concept ignored the fact that the organization, whose adoption used to precede their inclu- workers’ corporate body did not have the quality of a legal entity.27

21 B. Šunderić, Radni odnos: teorija, norma, praksa (Employment relationship: Theory, norm & practice), Belgrade, 1990, p. 100. 22 Ibid., pp. 102–103. 24 23 A. Baltić, “Yougoslavie”, Revue internationale de droit comparé, A. Baltić, M. Despotović, Osnovi radnog prava Jugoslavije (Fun- N°1/1967, p. 177. In this section, the self-management concept damentals of Yugoslav labour law), Belgrade, 1971, p. 62. of the employment relationship resembles one of the postulates 25 B. Šunderić, op. cit., pp. 104–105. of the institutional concept of the employment relationship in the 26 A. Ravni , op. cit., pp. 163–164. French law, which was approved and even supported by a part of ć Yugoslav authors. 27 A. Baltić, M. Despotović, op. cit., p. 62.

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Aside from the concept of employment relationship, a social subordination or self-subordination to (own) wor- new legal solutions had a considerable impact on the king order and management who was elected so as to give concept of subordination in the employment relationship. instructions and orders.32 Prior to the assignment of companies to workers’ corporate bodies, practically if not altogether without exception, Another crucial change in the substance of subordina- Yugoslav authors recognized that the subordination was the tion also involved the rules about risk taking by the com- vital element of the employment relationship. However, the pany, bearing in mind that the participation of workers in introduction of workers’ self-management, in theory, ope- the management and distribution of the corporate profit ned the question whether such legal qualification was jus- was considered the sufficient reason for making conclusion tified, bearing in mind that the workers were the holders of that in the self-management socialism, a part of business managerial functions, which altered the imminent charac- risk is borne out by each worker individually. The adoption ter of subordination.28 Since in addition to the participation of such attitude theoretically, but also from the aspect of in managing the companies, the workers were entitled to case law, resulted in the situation where taking risks could participate in the development of work organization and not be considered a valid criterion for the qualification of define rules on operation, appointment and dissolution of employment relationship.33 In parallel, it should be noted the members of workers’ councils and profit distribution, that after the enactment of the Law on Mutual Relations Yugoslav authors unavoidably had to review the functions of between Workers in the Associated Labour and in particu- subordination in the socialist labour law. lar, the Law on Associated Labour, certain authors changed their apprehension of subordination functions because Certain authors consequentially opted for the nega- of the growing role of workers in the self-management. tion (in fact, the ignorant) perception of subordination, Due to this, some of these authors advocated the idea that concluding that the employment relationship in the socia- subordination should be eradicated from the employment list society was the “relationship of collegial cooperation substance. and mutual support among the people”.29 Nevertheless, this approach failed to receive the support of a larger num- Borivoje Šunderić displayed the interesting perception ber of renowned authors who believed that subordination of subordination in the self-management. He found it to be never vanished from the employment relationship, even an important element of an employment, but that its subs- in the new environment. Without rejecting the existence tance did not correspond to the traditional concept of legal of subordination as the (either essential or non-essential) subordination, considering that the worker was essentially element of an employment relationship, they pointed out both economically and legally dependant on the state.34 Not that subordination had undergone considerable changes.30 only did this author advocate such viewpoint, but also went The same was argued by Boško Perić, who pointed out that further on with criticising the way in which relevant legal the production process inevitably imposes obligation on the solutions had been implemented, concluding that “self- workers to perform orders, yet such subordination “was not management was functionally tailored to fit the political to contribute to the welfare of individuals nor had an anta- leadership and that the working class was only conducting gonistic character, but was rather aimed at achieving mu- the self-management to the extent allowed by the poli- tual welfare, considering that all workers together, either tical leaders“.35 This conclusion was complemented with directly or indirectly decided about the subject-matter and the scope of performance.”31 Conversely, Baltić asserted 32 A. Baltić, „Radni odnos i pravo upravljanja“ (“Employment re- that subordination was gradually adopting the character of lationship and management right”), Arhiv za pravne i društvene nauke, N° 1/1957, p. 271. 33 A. Baltić, M. Despotović, op. cit., p. 199. 28 R. Kyovsky, Delovno pravo, Prva knjiga: Splošni del (Labour law, Volume one: General section), Ljubljana, 1978, p. 184. 34 B. Šunderić, op. cit., pp. 55–56. 29 I. Krbek, Lica u državnoj službi (Civil Servants), Zagreb, 1948, 35 Ibid. More so as in practise, self-management had been direc- p. 23. ted and controlled chiefly by the Communist Party, considering that at the workplaces and higher levels, the organizations of the 30 A. Ravni , op. cit., p. 169. ć Communist Party had been founded. At the same time, it should be 31 B. Perić, op. cit., pp. 171–172. noted that for ideological reasons, in the legal self-management

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the criticism for the implementation of normative concept June 1996, which confirmed that the employment rela- of mutual employment relationship, that, according to this tionship relies on the concluded employment contract author, emerged as the “result of aspirations and efforts of entered into between the employee and the employer, the ruling powers in the society (politocracy) to use the nor- based on which the employee would undertake to per- mative performance [...] for setting the scene for the deve- form the work for and on behalf of and under the prero- lopment of new social and employment relationships, while gatives of the employer.39 truly, they intended to preserve the employment relationship that would have all the characteristics of the traditional In late 90s of the last century, the normative condi- employment“.36 The consequence of such actions was that tions for the “revival” of contractual concept of employ- the employment was only formally looking at the self-ma- ment relationship were also created, partly thanks to the nagement relationship, whereas in reality, it was the subor- Labour Law of 13th December 200140 and the currently ap- dination relationship.37 plicable Labour Law of 8th March 200541. Still, the current labour legislation and practise of the Republic of Serbia have been experiencing numerous challenges, many of III - Contemporary development of Serbian la- them being connected to the field of economy. This is es- bour law – delayed (re)affirmation of the contrac- sentially related to economic and financial crises that im- tual concept of employment posed on the government the necessity to reduce expen- ditures and deal with the issue of mass unemployment, After several decades of acting within the frameworks while employers faced the challenge of sustaining their of self-management concept of employment relation- businesses by seeking new forms of business continuity ship, the Yugoslav (and Serbian) law began with the gra- and in particular using the advantages of flexibility. In the dual reinstatement of the traditional concept of employ- light of this, similarly as in the prevailing number of Euro- ment relationship. This process run simultaneously with pean countries, some experts came up with the propo- the changes in other spheres, such as the institution of sal to deregulate labour law and reassess the role of its the political pluralism and creation of preconditions for sources, specifically the laws and collective agreements. market economy. These changes on the other hand, were Furthermore, Serbian legislator faced the delicate task to rather slow and their results quite modest, particularly reconsider the personal scope of labour legislation, which with regard to the ownership transformation. The aban- also depends on the employment relationship concept. donment of self-management concept of employment This was particularly important as all the persons that relationship started with the Law on Basic Rights from actually performed dependant work require the legal pro- Employment Relationship of 6th October 198938 and was tection. Such requirement chiefly involved the disguised ended seven years later, with the enactment of the Law employment relationship, considering that the Labour on Fundamentals of Employment Relationship of 26th Law did not explicitly assert the principle of primacy of fact while the fiction of entering into an indeterminate term employment contract as of the date of employee’s system, the right to strike was not recognized, considering that the integration remained the only option for the protection non-existence of an employer (in its traditional sense) made this of employees who had no employment contracts signed method of exercising one’s rights, inappropriate. Nevertheless, in with the employer. This was far from being sufficient to reality, the labour standstills were organized, sending the mes- ensure the effective and comprehensive protection of sage to the centres of social and political power, especially the these persons that could be achieved only by bringing Communist Party. They would manifest by gathering of workers either within the area of work organizations, but also in front of on the clear legal definition of employment relationship the headquarters of social and political organizations. B. Lubarda, that would contain legal criteria that could facilitate the Radno pravo - rasprava o dostojanstvu na radu i socijalnom dijalogu (Labour Law – Treatise on dignity at work and social dialogue), Bel- grade, 2012, p. 194. 39 Official Gazette of Federal Republic of Yugoslavia, no. 29/96. 36 B. Šunderić, op. cit., pp. 119, 131. 40 Official Gazette of Republic of Serbia (OG RS), no. 70/2001 and 37 Ibid. 73/2001. 38 OG SFRY, no. 60/89 and 42/90. 41 OG RS, no. 24/05, 61/05, 54/2009, 32/13 and 75/14.

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evaluation of legal nature of employment relationship. of labour law in the EU have been exclusively intended to Therefore, the Labour Law should define the notion of improve the protection of employees, thus drawing even employment relationship, to include the qualification of more distinctive line between employees and self-em- legal subordination or its critical aspects (obeying the or- ployed persons.42 ders, control, disciplinary and normative prerogatives of employers) as the essential element of employment relationship. Moreover, the protection of employees perfor- Conclusion ming the disguised employment relationship could also be strengthened by introducing explicit legal prohibition Changes in the world of work have significantly affec- of performing the work being contracted under the civil ted the labour legislation, acknowledging, among other, law, where the relationship between the worker and the the limitations of employment relationship concept and the employer contains the elements of employment relation- requirement for its modernization. Serbian legal literature ship. have been consistently drawing attention to this, being understood that the authors had never concurred about the In addition to the requirement to protect workers that essential employment relationship elements. Instead, in perform disguised employment relationship, Serbian la- a number of works, they identified numerous elements of bour law has faced another challenge: the new forms of employment relationship: its voluntary character; personal labour that significantly disband the clear line between performance of work; working for pay; legal subordination; the employment and other forms of work. In this respect, involvement in a work organization; limited working hours; it should be noted that the Republic of Serbia literally entry into employment; its organizational character; perfor- transferred the traditional, binary model of regulating mance of work as a profession; no risk assumed by the em- the work perfomed for another person (the dependant ployee.43 However, despite the different arguments, these work of employees – independent work of self-employed authors have shared the undivided opinion that the first persons), but that certain aspects of labour legislation three elements constitute the substance of employment protection have been also granted to self-employed per- relationship, while their conclusions differ when it comes to sons (occupational health and safety, protection against other elements of employment relationship, particularly in harassment and discrimination at work), even without terms of the employment relationship concept considera- introducing the new legal category of economically de- tion under the self-management system. It should be noted pendent workers. Despite the fact that by recognizing that subordination had been, without exception, recognized some additional rights (such as, the right to limited work as the essential element of employment relationship in the hours, minimal wages and notice period in the event of works written before World War II, while the works that had employment termination), a more appropriate instru- been produced thereafter pointed out that subordination ment to protect the persons that require such protection had been an essential element of employment before the could be achieved, it seems that the conditions for ope- workers’ corporate bodies took over the management role ning this question have not been met. The reason for this in enterprises.44 Nonetheless, the existence of subordina- is that the imposition of such requirements would burden tion in employment relationship following the introduction the employers with overwhelming requirements (and ex- of self-management was not denied. A number of authors, penses) which would have adverse impact on the labour indeed, argued that subordination did not vanish from em- market, predominantly in terms of increase of undeclared ployment relationship, but rather survived, albeit its signi- work. It should also be noted that the reforms of Serbian ficant reforms, due to which it was considered the element labour law failed to include any protection of individuals (most often of secondary importance) of employment, or working outside employment. This is mainly related to the element that existed among the civil servants, only (but the tendency of introducing a more flexible regulation and organization of work that would help cut the labour costs, 42 T. Gyulavári, "A bridge too far? The hungarian regulation of eco- increase investments and stimulate employment. Moreo- nomically dependent work“, Hungarian Labour Law E-Journal, No. ver, the efforts made to harmonize the Serbian legisla- 1/2014, pp. 9-11, 21. tion with the EU acquis, also fails to expand the protec- 43 B. Šunderić, op. cit., pp. 44–45. tion of economically dependent workers, as the sources 44 Ibid.

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not among the employees in general regime of employment legal provisions that limit the working hours or guarantee relationships).45 On the other hand, one should bear in mind employment security that has been violated in the Republic that the Yugoslav case law did not proclaim the subordi- of Serbia almost by all. Still, this statement is not aimed at nation as an element of employment relationship, but that denying the significant role of certain labour law institutions such qualification was attributed to other segments, prima- or claiming that they have become obsolete. Its intention rily the personal performance of work for the benefit of an is rather to point to the requirement of making labour law employer, and exclusivity of work performed for the full- rules more comprehensible and clear and ensuring that the time work. 46 labour law institutes are adjusted to the development needs of the society. At the same time, this adjustment process More recent Serbian literature, however, almost una- cannot result in the betrayal of the idea of social justice and nimously acknowledged the subordination as an essential other ideas and values that express the spirit and the being element of employment relationship,47 equally as the volun- of the labour law. tary work, personally performed work and work performed for pay. Despite this fact, the Serbian labour legislation failed to provide for a clear legal definition of employment relationship that would contain legal criteria for facilitating the evaluation of the legal nature of particular relationships. This specifically applies to legal subordination. Although subordination adopted new appearances, i.e. showed “new faces”,48 it remained a dependable criterion for qualification of employment relationship, since, as long as the employment contract would be implemented, the employer would be accordingly authorized to make decisions, issue orders and impose disciplinary measures upon employees, being, all together, sufficient elements for the establishment of power, as a legal category.

Finally, it should be noted that the Serbian legislation and practice are devoid of an effective tool that could prevent the undeclared work and the disguised employment relationship. Striking a balance between the need to ensure the preconditions for attaining the freedom of entrepreneurship and to protect the legitimate interests of employers, and at the same time, the requirement of setting the scene for the effective exercising and protection of rights and freedoms of employees at work, remained to be quite a challenging task. Without its effective implementation, labour law will continue to be nothing but a dead letter, similarly as any of the

45 Ibid. 46 See V. Brajić (ed.), Radno pravo u praksi: Priručnik sudske prakse (Labour law in Practice: Case law manual), Belgrade, 1974, pp. 54–55. 47 Lj. Kovačević, Pravna subordinacija u radnom odnosu i njene granice (Legal subordination in employment relationship and its limitations), Belgrade, 2013, p. 400. 48 A. Supiot, "Les nouveaux visages de la subordination“, Droit social, No. 2/2000, p. 131.

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45 noFrériyukidéric iPnoarueé Professeur,Professor at Dean Department of Graduate of SchoolOrganization of Law, and University Human ofResources, Kobe School of Management, ThèmesUniversity de of recherche Québec (Montréal). :modicto officimint apitia descimin ni comnis ipsus, venti ducimaio. ParmiResearch ses themes: publications Labour : law in Québec, Canada and the United States, Comparative Labour law, ~Legal aspects of human resources management, Human rights and freedom in the context of ~employment. Publications: ~« Le droit du travail américain : un droit plus favorable à l’investissement que le droit du travail québécois ? Une étude de la question… », Thesis for the PhD. (LL.D.), Law Faculty, University of Montréal, September 2014 ~« Sélectionner des candidats en toute légalité », (coll. P. L. Denis and S. Asselin, Gestion, vol. 36, no 3, automn 2011, pp. 50-60.

Gilles Trudeau Professor, Faculty of Law, Université de Montréal and researcher in the Interuniversity Research Center on Globalization and Work (CRIMT). Research themes: Labour law and economic globalisation, Fundamental rights of people at work. Publications: ~« The Institutional Specificity of Quebec in the Context of Globalization » ( coll. J. Bélanger), (2009-2010) 15 Canadian Labour and Employment Law, Journal, n°. 1, pp. 49-76. ~« Libertés individuelles et relations de travail : un point de vue canadien », in Ph. Auvergnon (dir.), Libertés individuelles et relations de travail : le possible, le permis et l'interdit ?, Pessac, Presses universitaires de Bordeaux, 2011, pp. 233-267.

Why Right-to-Work Laws in the United States?

abstract This paper deals with the Right-to-Work Laws that American states are allowed to enact in order to prohibit union security clauses that a collective agreement could otherwise contain. After having explained the purpose of such clauses and the different forms they can take, the article presents the reasons why many states have elected to ban them and why Right-to Work legislation has been increasingly popular over the last years key words : Union certification, Collective agreement, Union security, Right-to-Work Laws, Free choice.

résumé Cet article porte sur les lois de « droit au travail » que les États américains peuvent adopter afin de bannir la clause de sécurité syndicale qu'une convention collective peut par ailleurs contenir. Après avoir expliqué le rôle que joue une telle clause et les différentes formes qu'elle peut revêtir, l'article présente les raisons pour lesquelles plusieurs États la proscrivent et pourquoi les Right-to Work Laws connaissent un regain de popularité depuis quelques années. mots clés : Accréditation syndicale, Convention collective, Sécurité syndicale, Right-to-Work laws, Libre choix.

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n 1947, the United States Congress amended employees in the bargaining unit, for continued employ- its legislation to grant each state the power to ment, to become or remain members of the representa- prohibit setting union membership as a condi- tive trade union for the entire duration of the collective tion for securing or retaining employment. Not agreement or, at the very least, to contribute to it finan- surprisingly, the conservative states of the cially (II). For many observers, this clause represents a ISouth and Southwest generally took advantage of this brazen violation of an individual’s right to work and free opportunity to enact Right-to-Work Laws banning the choice, hence the recourse to Right-to-Work Laws to ban inclusion of union security clauses in collective agree- its inclusion in collective agreements (III). ments. In 2001, Florida became the 22nd state to adopt this policy. I – Trade Unionism and Collective Bargai- However, this phenomenon has now reached the ning in the United States trade union stronghold of the industrialized states of the Midwest. In quick succession, the legislatures of India- In the United States, trade unionism first emerged na, in February 2011, Michigan, in December 2012, and in the traditional crafts during the 19th century. The first Wisconsin, in March 2015, each enacted a Right-to-Work unions, often ephemeral forms of labour association, Law.1 Moreover, the Republican Governor of Illinois, sought to obtain uniform wages by forcing every em- elected in fall 2014, announced his intention to set up a ployer in a given locality or region to comply with a wage scheme to create local “right to work zones” during the rate indicated in a document (Bill of Wages) drawn up in a first year of his term in office.2 trade union meeting. Their success was contingent only on how effective their control over the labour supply was, How to explain this political persecution of the Ame- while strikes and boycotts of resistant employers were rican labour movement, which is already a mere shadow the only means of action available to them.3 of its former self? This is the subject of this article. As of 1850, as a result of economic development and A review of the origins of trade union practice and expansion to the West, several local craft unions became collective bargaining in North America is essential in or- national unions. Despite various economic and legal der to explain the strategic importance of the union se- obstacles, their membership significantly increased and curity clause in collective agreements (I). A union secu- their advocacy strengthened. In the late 19th century, the rity clause can take several forms, requiring some or all American Federation of Labor (AFL), an alliance of craft unions led by Samuel Gompers, emerged victorious from the acute ideological tensions that had been raging in 1 M. Davey, “Unions Suffer Latest Defeat in Midwest With Signing the labour movement, and established itself as the main of Wisconsin Measure”, The New York Times, March 2015, online: national labour association. Under its aegis, the principal http://nyti.ms/1FzQwyH; J. Mirer, “Right-to-Work Laws: History characteristics of American trade union action were defi- and Fightback”, 70 Nat’Law. Guild Rev. (2013), 30. ned – characteristics that still widely prevail today. 2 THE ASSOCIATED PRESS, “Rauner Previews ‘Right to Work Zones’ as First-Year Priority”, The State Journal Register, Springfield, IL, January 2015, online: http://www.sj-r.com/article/20150127/ NEWS/150129519/-1/json, consulted on 27 January 2015. In Fe- 3 See, in general, C. Collomp, “Précoce hégémonie du syndica- bruary 2015, this same governor adopted a decree prohibiting com- lisme de métier en Amérique du Nord”, in J. Sagnes (ed.), Histoire pulsory union dues check-off in the state public service: https:// du syndicalisme dans le monde des origines à nos jours, Toulouse, www.illinois.gov/Government/ExecOrders/Pages/2015_13.aspx . Éditions Privat, 1994, p. 61, pp. 62-63.

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The AFL’s demands sought only to improve its mem- The legal context in which these practices were car- bers’ material conditions. The aim was to obtain as great ried out long remained profoundly hostile to the labour a share of gains as possible from every employer by using movement. In fact, it was only in 1935 that this context the full economic force afforded by union solidarity. The changed, quite radically, when the federal legislator foundations of the capitalist system were not challenged enacted the National Labor Relations Act (NLRA), better in any way. Quite the contrary, it was from within the sys- known as the Wagner Act.4 This Act, which still prevails tem itself, by drawing on its strengths, that trade union today, was part of the measures of the New Deal put members expected to obtain the share of wealth they forward by President Franklin D. Roosevelt to stimu- claimed. Trade union action was not based on class soli- late consumption and boost the economy. Adopted in a darity. Direct political action, in particular promoting a context of unprecedented social unrest and social pro- working-class political party, was ruled out to prioritize test, it represented a major change in paradigm regar- only collective bargaining. In several trades, particularly ding the role entrusted to the state in the field of labour those in the construction industry, the trade union ma- relations. The Act declared that the general policy of the naged to control the workforce supply, notably because United States was to encourage the collective bargaining of skill requirements. Employers had to recognize the of working conditions through representatives freely union and accept its conditions in order to obtain the chosen by the workers. The freedom of association of workforce needed. Moreover, these workers refused to waged earners was explicitly recognized and protected work alongside non-unionized workers. The union secu- from unfair labour practices on the part of employers. rity clauses deriving from these practices are still found The Wagner Act also established a procedure for reco- in collective agreements today. In other industry sectors, gnizing the majority union within a group of employees it was through the threat or use of strikes and boycotts forming an appropriate bargaining unit.5 Following elec- that employers were led to recognize a union and nego- tions held among the employees involved, the majority tiate the working conditions of its members with it. union obtains certification from the relevant government agency, the National Labor Relations Board (NLRB), to Moreover, it should be pointed out that no centra- represent, vis-à-vis the employer, all the employees lized employer association existed in the United States, included in the bargaining unit, whether or not they are whether at industry or national level. The principles of members of the union. free competition were widely recognized in this country and anti-trust law provisions were inevitable. It was The cornerstone of this Act was the obligation for unthinkable for an American entrepreneur to join forces employers to negotiate working conditions in good faith with a competitor to mount a united front against union with the certified union representing their employees. pressure. Rather, mistrust was systemic and the wor- This Act thus replaced direct union action, economic king conditions granted to employees formed part of the pressure and strikes as a mechanism for union reco- commercial competition in which employers were enga- gnition. Through its enactment, the American legislator ged. intended to eliminate a major source of labour disputes, which all too often dragged on and escalated into vio- These characteristics of the social actors shaped lence. These disputes pitted the union against the em- the American labour relations system from the 19th cen- ployer, and unionized workers against non-unionized tury onwards. The union effort was mainly directed at each individual employer, at a highly decentralized level. In general, the employer strongly resisted it, using an 4 Act of July 5, 1935, Pub. L. No. 198, 49 Stat. 449; 29 U.S.C. §§ 151- arsenal of measures to nip in the bud any union sympa- 169. Its more common name stems from the name of the New York thy among its employees. The effectiveness of a union’s senator, Robert Wagner, who was its main instigator. representation, or the system for bargaining working 5 The bargaining unit may consist of all employees or a group of conditions that it sought to implement, hinged solely on employees of a given employer, insofar as the employees in this its capacity to impose sustained economic pressure on group share a community of interests in the determination of their the recalcitrant employer. working conditions. See: D. E. Ray, C. W. Sharpe and R. N. Strass- feld, Understanding Labor Law, Second Edition, LexisNexis, 2005, p. 64.

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workers and rival unions. In fact, craft unions often only those workers who complied with the terms and fought for recognition from the same employer as indus- conditions provided for in these clauses. In other words, trial unions representing all workers in a given industry by agreeing to include such a clause in the collective irrespective of whether or not they were craft workers.6 agreement and undertaking to apply it, the employer became the guarantor of its employees’ membership in However, the Wagner Act only set up a collective and financial contribution to the union holding the legal bargaining structure; beyond the obligation to negotiate mandate to represent them. As explained below, these in good faith, it did not intervene in the content of the clauses, initially permitted by the Wagner Act of 1935, negotiated agreement. The parties remained free to were subsequently subject to numerous judicial and negotiate an agreement that suited them, without state legal restrictions. intervention. The market forces and the parties’ respective bargaining power prevailed at this level. Economic pressure tactics, namely strikes and lockouts, remai- II – Union Security Clauses in Collective ned critical in this bargaining framework. It was pres- Agreements and Their Legality umed that a party would agree to make concessions at the bargaining table only insofar as it perceived that its The National Labor Relations Act provides mini- adversary might resort to a more damaging economic mum protection to the certified union. In fact, through sanction than the concessions made. Thus, under the certification, this union becomes the only representa- Wagner Act, a strike was viewed mainly as an economic tive of employees in the bargaining unit. Moreover, the tool, since it could only occur in the context of collective employer is required to recognize this union and nego- bargaining, in support of the work-related demands of a tiate a collective labour agreement with it, in good faith. certified union.7 However, in this context, strikes remai- To obtain certification, a union must demonstrate that it ned highly unregulated and the laissez-faire principle has the support of the majority of employees in the bar- still applied. gaining unit. The NLRA does not require any employee It was in this institutional and legal setting that to join the certified union even though the latter has the union security clauses came into play. They ensured duty to represent all employees, whether or not they the union’s survival in the firm by requiring workers are members. Once the collective agreement has been to become and remain union members or to support concluded, it also applies to all these employees, and it financially in order to avoid losing their jobs. In fact, the employer cannot enter into any individual agreement union security clauses required the employer to retain outside of it.

The union can, however, seek greater protection by 6 An industrial unionism had developed within the AFL itself, negotiating with the employer – who will often fiercely mainly as of the 1920s, in particular in the mining, clothing, steel object to it – the inclusion of a union security clause in and automobile industries. This unionism, more influenced by the collective agreement. This clause can more specifi- socialist ideas, was much more confrontational than the traditio- cally address union membership or its funding.8 nal craft unionism and resorted more readily to social unrest. The industrial unions eventually came together to form the Congress of The union membership clause, generally called Industrial Organizations (CIO), leaving the AFL in 1938. There was a a union shop clause, requires some or all employees, reunification within the American labour movement in 1955, when as a condition of employment, to become and remain the CIO and the AFL merged to form the AFL-CIO See: C. Collomp, “En Amérique du Nord: émergence du syndicalisme de masse”, in J. Sagnes (ed.), supra, note 3, p. 159, p. 165ff. 7 It should be noted that the NLRA also allows for the right to 8 For a typology of union security clauses, consult: E. F. Beal, E. D. strike against an unfair labour practice on the part of the employer Wickersham and P. Kienast, The Practice of Collective Bargaining, or to protest against an unsafe working condition. See: D.E. Ray, 5th edition, Homewood (Illinois), R. D. Irwin Inc., 1976, pp. 269-272; C.W. Sharpe and R.N. Strassfeld, supra, note 5, pp. 212-213; Natio- Pier-Luc Bilodeau, “Chapitre 4 : Vie et sécurité syndicales”, in P. nal Labor Relations Board, Basic Guide to National Labor Relations Jalette and G. Trudeau (ed.), La convention collective au Québec, Act, 1997. 2nd edition, Montréal, Gaëtan Morin, 2011, pp. 87-90.

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members of the union signatory to the collective agree- The modified union shop clause, in addition to requi- ment. This clause provides several advantages to the ring employees who are already members of the union union, including greater control over the employees in to remain so for the entire duration of the collective the bargaining unit.9 Thus, an employee who ignores agreement, also requires union membership on the part the union’s constitution or directives, in particular that of any employee hired after the collective agreement has of going on strike, or refuses to pay union dues, can be come into force. Previously hired employees who are expelled from it. The employer will then have no choice not already members of the union when the agreement but to dismiss the employee pursuant to the union secu- comes into force are free to join the union or not, as they rity clause, which makes union membership a condition see fit. The recognition of this acquired right explains for continuing employment. This means that the union the “modified’ nature of this type of union shop clause. has absolute disciplinary power over the employees in the bargaining unit. Moreover, by requiring union mem- The union shop clause has no exceptions and re- bership and the payment of dues, the union membership quires all employees in the bargaining unit to become clause also facilitates its funding. and remain union members for the entire duration of the collective agreement. This obligation covers workers There are several types of union membership who are already employed by the firm when the collec- clauses, also referred to as union shop clauses. Some tive agreement comes into force, as well as those who are merely limited to maintaining existing union mem- are hired subsequently. bership, nothing more. Others require some or all employees to join the union ranks. Lastly, the most res- Under the closed shop clause, the employer can only trictive clauses even require the employer to hire only hire workers who are already members of the union. workers who are already members of the certified union. Union membership thus essentially becomes a condition of employment. This clause generally provides for a The maintenance of membership clause does not mechanism for union placement (i.e. a union hiring hall) require any employee in the bargaining unit to become under which the union undertakes to supply skilled and a union member. However, employees who are already competent workers as required by the employer. This members when the collective agreement comes into type of clause, which is now illegal in the United States, force, and those who become members subsequently, is specific to economic sectors in which the employer must maintain their membership for the entire duration is transitory, such as the construction industry or the of the collective agreement.10 longshoring industry in seaports.

Lastly, the open shop refers to the workplace whose collective agreement does not contain any union membership clause, thus leaving the employees free to join 9 P. C. Weiler, Reconcilable Differences, The Carswell Company the certified union or not, as they see fit. Limited, Toronto, 1980, pp. 140-150. Union funding provisions, on the other hand, do 10 The employees may resign from the union or become members not require workers to join the union but rather focus of a competing union between the 90th and 60th day preceding the expiry of the collective agreement or the expiry of the 3rd year of on their participation in funding it. Two distinct types of a collective agreement lasting longer than 3 years (“open period”), funding provisions exist. that is, the period during which the certification can be challenged in accordance with the “Contract Bar Rule”: D.E. Ray, C.W. Sharpe The first, the dues check-off provision, is in fact only and R.N. Strassfeld, supra, note 5, p. 62; National Labor Relations an administrative arrangement under which the em- Board, supra, note 7; J.R. Bellace, “Union Decertification under the ployer undertakes to deduct the dues directly from the NLRA”, 57-3 Chicago-Kent Law Review 643 (1981), 660. However, wages of employees who are members of the certified since the Supreme Court decision in the case of NLRB v. General union and remit them to the union.11 This collection me- Motors Corp., 373 U.S. 734 (1963), an employee may resign from the union anytime, even when a compulsory union membership clause exists in the collective agreement. The employee’s duty to pay union dues nevertheless remains. See infra, note 21. 11 Consequently, this clause is not considered to be a union mem-

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chanism, which often comes with a union membership Section 8(3) of the Wagner Act broke new ground by clause, is very useful for the certified union. It ensures authorizing the inclusion of any type of union security that its members’ dues will be paid regularly and avoids clause in collective agreements, including the closed the inconvenience and resources involved in collecting shop clause,16 provided that the union involved was the dues from every employee.12 authorized representative of employees in the bargaining unit concerned and was not dominated by the employer.17 The second union funding provision, known in the The Taft-Hartley Act profoundly changed the regulation United States as an agency shop clause, represents a found in section 8(3) of the NLRA – a regulation which considerable strategic issue for the collective bargai- has since been included in section 8(a)(3) of the NRLA, ning parties.13 It postulates that it is the responsibility in the subsection relating to unfair labour practices on of all employees in the bargaining unit – even those the part of the employer – namely by prohibiting a union who refuse to join the certified union – to support its security clause from requiring an employee to become funding. Under this provision, union representation a member of the union before the expiry of a 30-day and the resulting collective agreement are conside- grace period following his/her hiring, thereby prohibiting red to be a public good to which all beneficiaries must the inclusion of closed shop clauses in collective agree- contribute financially. To have it otherwise would pave ments.18 Moreover, a union security clause could hence- the way for free riders, employees who benefit from the forth be integrated into the collective agreement only system while leaving it to others to bear the cost. The after being authorized by a majority of employees in the existence of this hybrid provision is explained, at least in bargaining unit.19 Lastly, failure to comply with a union the United States, by the evolution of the law applicable security clause could no longer be cited by the employer to union security clauses, which no longer gives access to justify the dismissal of an employee under certain cir- to the wide variety of clauses described in the typology cumstances.20 presented above. To sum up, the closed shop clause is today the only The Wagner Act, enacted in 1935, deeply offended union security clause that is formally banned by the employers, who deemed it to be too favourable to NLRA. In fact, by requiring the employer to hire only can- unions. Political pressure from employers led Congress didates who were already members of the union when to amend it substantially by enacting, in 1947, the Labor they were hired, the closed shop would infringe the com- Management Relations Act,14 whose avowed purpose was to “restore a more balanced relationship between labour and management” in the United States. Among 16 Prior to the Wagner Act, the closed shop clause was generally the many amendments made to the NLRA was a much prohibited by the judicial courts: Plant v. Woods, 176 Mass. 492 (1900); D.E. Ray, C.W. Sharpe and R.N. Strassfeld, supra, note 5, more restrictive regulation of union security clauses.15 p. 352. 17 J. Mirer, supra, note 1, p. 31. 18 bership clause and cannot be regulated or prohibited by a state NLRA, § 8(a)(3); 29 U.S.C. § 158(a)(3). Right to Work Law adopted pursuant to section 14 (b) of the NLRA. 19 Today, the NLRA stipulates that the labour organization can See: T. R. Haggard, “Union Checkoff Arrangements under the Na- include a union membership clause in the collective agreement tional Labor Relations Act”, 39 DePaul L. Rev. 567 (1989-1990), 628. without having to obtain prior authorization from employees in the 12 However, the employees must individually consent to having unit. However, a procedure is provided for to allow the majority of their union dues deducted from their paycheque by signing a dues employees in the unit to withdraw this power from it for one year check-off authorization form to this effect. See: Labor Management (“deauthorization elections”): NLRA, § 8(a)(3) and 9(e); 29 U.S.C. § Relations Act, § 302(c)(4); 29 U.S.C. § 186(c)(4); B. A. Powers and A. 158(a)(3) and 159(e). Kelser, “Dues-Checkoff Dreams Do Come True, They Do, They Do”, 20 More specifically, when the employer has reasonable grounds 29 The Labor Lawyer (2014), 299. for believing that membership was not available to the employee 13 In Canada, this provision is known as the Rand formula. on the same terms and conditions generally applicable to other members, or was denied or terminated for reasons other than the 14 Act of June 23, 1947, 61 Stat. 136; 29 U.S.C. §§ 141-191., known failure of the employee to tender the periodic dues and the initia- as the Taft-Hartley Act. tion fees uniformly required as a condition of acquiring or retaining 15 D.E. Ray, C.W. Sharpe and R.N. Strassfeld, supra, note 5, pp. 11-12. membership: NLRA, § 8(a)(3); 29 U.S.C. § 158(a)(3).

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pulsory grace period of 30 days set out in section 8(a)(3). surrounding the Right-to-Work Laws that a dozen states In principle, the other union security clauses, including had enacted to ban, or at the very least regulate, the the union shop clause, are still allowed under the NLRA. union security clauses included in the collective agreements in force in their territories. By specifying that the However, by interpreting section 8(a)(3) of the NLRA NLRA did not have the effect of authorizing the union in a very restrictive way, the United States Supreme membership clauses that the law of a state or territory Court has significantly limited the scope of these other prohibited, Congress ruled out any interference that ap- union security clauses. Thus, in NLRB v. General Motors plying the federal legislation preemption doctrine regar- Corp,21 the Court ruled that a union security clause can- ding state legislation would have otherwise provoked.25 not require an employee to become a union member, but The effects of section 14(b) were not, however, limited at most can require the employee to pay initiation fees to regularizing the Right-to-Work Laws that some states and union dues. This implies that the employee, while had already enacted when the Taft-Harley Act came into benefiting from the content of the collective agreement, force. The provision also allowed all the other American cannot be subject to the statutes and regulations of the states that so desired to adopt this measure. Still today, union against his/her will. This interpretation of section section 14(b) of the NLRA constitutes the legal basis for 8(a)(3) of the NLRA thus effectively bans most union the power of state legislatures to enact “Right-to-Work security clauses. In fact, only the agency shop clause,22 laws,” a power that many of them have, in fact, exercised. which does not formally require union membership, remains legally accessible. III – Why “Right-to-Work Laws”? Moreover, in Communication Workers of America v. Beck,23 the Supreme Court deemed that the union Twenty-five of the fifty American states and one could only require payment for the portion of initiation territory have to date opted for a Right-to-Work Law 26 fees and union dues allocated to activities related to the (see Figure 1). The pertinence of this legislative measure negotiation and administration of the collective agree- emerged immediately following the coming into force of ment. Consequently, even when a union security clause the Wagner Act of 1935. As stated above, a dozen states exists, an employee can refuse to join the union and fund had resorted to this measure even before the Taft-Hart- it beyond what is necessary for collective bargaining. ley Act expressly allowed it in 1947. Although the mo- The most important amendment that the Taft-Hart- vement to enact these laws came to a halt in the early ley Act made to the NLRA, however, involved adding a 2000s, it appears to have started up again with renewed new provision, section 14(b), which reads as follows: vigour and has today spread to states among the most unionized in the American territory. 14 (b) Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or 25 For further details on the doctrine of American federal employ- Territorial law.24 ment law preemption, see: S. F. Befort, “Demystifying Federal La- bor and Employment Law Preemption”, 13 Lab. Law. (1997-1998), The U.S. Congress thus put an end to the polemic 429. 26 National Right To Work Legal Defense Foundation, 2015, online: http://www.nrtw.org/rtws.htm, consulted on 14 April 2015. These 21 373 U.S. 734 (1963). states are Alabama, Arizona, Arkansas, North Carolina, South 22 NLRB v. Hershey Foods Corp., 513 F.2d 1083 (9th Cir. 1975); D.E. Carolina, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Ray, C.W. Sharpe and R.N. Strassfeld, supra, note 5, p. 353-354. Michigan, Mississippi, Nebraska, Nevada, Oklahoma, North Dako- ta, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and 23 487 U.S. 735 (1988). Wyoming. Guam is the only territory of the United States that has 24 N.L.R.A., § 14(b); 29 U.S.C. § 164(b). this legislation.

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Figure 1: The “Right-to-Work States” in the United States

Source: The National Right To Work Commitee, 2015, online: http://nrtwc.org/

The keen interest, indeed enthusiasm, which this mea- tive agreement eventually negotiated inevitably applies to sure has aroused among some members of the American them as well. In return for this monopoly of representation Right can be explained by the spirit of the Wagner Act.27 granted through certification, the union has the legal duty As explained above, this Act requires the employer to ne- to fairly represent all employees in the bargaining unit, its gotiate the content of a collective agreement in good faith members or supporters as well as its detractors. Union with the union certified to represent all or some of its em- security clauses, like the Right-to-Work laws that prohibit ployees forming an appropriate bargaining unit. However, them, mainly concern this minority of employees. the union’s certification is obtained through the support of the absolute majority of employees in the bargaining unit. Majority rule and the monopoly of union representa- The – possibly large – minority of employees in the bargai- tion form the very basis of the U.S. national policy of labour ning unit who did not want a union are necessarily repre- relations established by the Wagner Act. The resulting sys- sented by the latter vis-à-vis the employer, and the collec- tem has often been likened to democratic government. The certified union, elected by the majority vote of employees in the bargaining unit, presumably negotiates the content 27 For an illustration of this phenomenon, see: G. C. Leef, Free of the collective agreement on an equal footing with the Choice for Workers: A History of the Right to Work Movement, Otta- employer, the collective agreement being assimilated to wa, Illinois, Jameson Books, 2005.

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the law of the parties. Its implementation and application, envisaged by the Wagner Act of 1935.30 Rather than foste- in the case of dispute, come under grievance arbitration, ring the kind of unity and solidarity essential to the effective a private “judicial” system stemming from the collective functioning of the union representation chosen by the ma- agreement and controlled by the parties themselves.28 jority of employees in the bargaining unit, these laws gene- From this perspective, it is only normal that the collective rate division within the unit and threaten its survival. Their agreement, like the law in the national territory, should ap- appeal and popularity can be explained by the notions of ply to all employee “citizens” forming the bargaining unit, individual free choice, freedom and economic laissez-faire even those who have not voted for the certified union. It is that these laws promote, without considering the down- also normal that every employee should pay dues or the right anti-union values they convey. Their development was equivalent to the union that represents them and is a party supported by a powerful lobby led, in particular, by the Na- to the collective agreement from which they benefit. After tional Right to Work Committee founded in 1955.31 all, all citizens must pay taxes to the government, even those who have voted against the political party leading it. Right-to-Work Laws prohibit what their promoters refer to as compulsory unionism. The idea is simple: nobody Any union security clause inserted into a collective should lose their job because they refuse to join a union agreement today only aims to ensure that all employees or to support it financially. By allowing a “short” majority who benefit from this agreement, whether members of the of workers to require others to choose between joining the certified union or not, pay for the services they receive. As union or losing their jobs, the Wagner Act of 1935, in their explained above, under the current law, a union security view, seriously limits everybody’s right to freely negotiate clause can only require employees who are non-members their own working conditions with their employer. It is this of the certified union to pay the portion of dues that is allo- violation of the fundamental freedom to decide for oneself, cated to the direct professional representation of the em- without any interference, that the Right-to-Work Laws help ployees in the bargaining unit. The clause thus eliminates to combat.32 Moreover, not only does this regime violate – and this is crucial for the certified union – the possibility the freedom of association of dissident workers – by not for employees to be free riders, benefiting from the collec- respecting their refusal to join a union or even to be re- tive agreement and union representation without contribu- presented by a union – but it also violates their freedom of ting to the financial effort that this implies. contract – by imposing on them the services of a representative they do not want and forcing them to pay for services This legal regime of union representation, however, they never requested.33 As stated by Leef: although it stemmed from the specific industrial relations system that historically developed in the United States,29 “Union coercion against independent-minded people is runs directly counter to individualism and free choice – an ugly and continuing stain on the fabric of a nation com- values embodied in the American DNA. As soon as it was mitted to individual liberty, freedom of contract, and free- established in 1935, it aroused mistrust and opposition dom of association.” 34 among a large part of the Republican Right and the employer lobby. This opposition only amplified with the success of collective bargaining and trade unionism in post- war industrialized America. 30 J. C. Thomas, “Right-to-Work: Settled Law or Unfinished Jour- ney”, 8 Loy. J. Pub. Int. L 163 (2006-2007), 165. Right-to-Work Laws, explicitly allowed since 1947, re- 31 National Right to Work Committee website, online: http://www. present the antithesis of the collective bargaining regime nrtwc.org, consulted on 11 February 2015. According to Wikipe- dia, the NRTWC, with 2.8 million members having paid an average contribution of approximately $59, is one of the largest pressure groups in the United States. 28 For a description and critique of this allegory, developed by 32 the post-war American “industrial pluralists”, read K. Van Wesel R. Vedder, “Right-to-Work Laws: Liberty, Prosperity and Quality Stone, “The Post-War Paradigm in American Labor Law”, 90 The of Life”, 30 Cato Journal 171 (2010), 172. Yale Law Journal (1981), 1509. 33 G. C. Leef, Free Choice for Workers: A History of the Right to 29 D. C. Bok, “Reflections on the Distinctive Character of American Work Movement, supra, note 27, pp. xiii-xvi. Labor Laws”, 84 Harvard Law Review (1971), 1394. 34 Id., p. xvi.

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Thus, in addition to giving back to every employee the Conclusion right to freely decide whether or not to join a union, without their continued employment being at stake, Right-to-Work Some observers maintain that the freedom to work Laws are seen by their proponents to be endowed with (i.e. Right-to-Work) movement will expand over the coming several other virtues. By contributing to the decline in the years in the United States.38 This prediction is based, in par- unionization rate and weakening the labour movement,35 ticular, on the sharp decline in union membership, parti- they are said to promote investment, economic growth and cularly in the most highly unionized states, which, it is pre- employment. Moreover, the states that have adhered to dicted, will weaken the political capacity to resist the lobby this policy are said to have seen their workforce increase militating in favour of Right-to-Work Laws. Indeed, this lob- to the detriment of states that have allowed union security by continues to gain strength while these laws elicit increa- clauses to continue to apply in full.36 singly strong support among the population in general and employers in particular. These conclusions have been seriously challenged by the analyses carried out under the auspices of the labour This prediction is certainly not farfetched. A large part movement. According to the latter, there is no relationship of the American population supports the neo-liberal values between Right-to-Work Laws and the unemployment rate, of the Republican Right, which preaches for limited state per capita income or employment growth by state. Moreo- presence in the operation of the economy. Right-to-Work ver, it appears that a state does not attract a greater num- Laws are part of this trend, and represent a compelling ber of firms to its territory by adopting such a policy. Fur- measure allowing the free market and individual freedom thermore, Right-to-Work Laws are said to have reduced to prevail over the system adopted in 1935 in a context that the income of both unionized and non-unionized workers. no longer exists today. As if to confirm this prediction, the These laws are also said to reduce the workers’ chances federal legislative elections in fall 2014 gave the majority to of obtaining a health insurance plan and pension plan the Republicans in both Houses of Congress. In the early through their employment.37 weeks of 2015, a Republican member of the House of Re- presentatives introduced a draft bill proposing that a Right- Nonetheless, there is no denying that a Right-to-Work to-Work Law be enacted at the national level.39 Moreover, in Law – by allowing the employees in a bargaining unit who March 2015, a 25th state, Wisconsin, enacted a right-to-work so wish, to leave the certified union and refuse to contribute law, such that half of the American states are now Right-to- to it financially – makes union funding more difficult and, Work States.40 in the long run, can only weaken the existing union. The latter still has the duty to fairly represent all employees in Neo-liberal values and anti-union sentiments shared the bargaining unit, while its financial resources lose the by the American Right have not died down with the decline contribution of free rider employees as allowed by law. in union membership, far from it. It should be said that the system established 80 years ago by the Wagner Act presents particular characteristics that arouse strong opposition, regardless of the general unionization rate. Union certification based on majority rule and the monopoly of representation enjoyed by the union certified to represent all employees in 35 According to Vedder, in 2007, the average unionization rate was 6.7% for all states with a Right-to-Work Law whereas it was 14.2% the bargaining unit do not allow for any flexibility in how col- for all states which had not enacted such a law: R. Vedder, supra, lective bargaining is arranged with a given employer. Once a note 32, p. 175. union is certified, even with the slimmest of majorities, the 36 R. Vedder, supra, note 32; R. Vedder and J. Robe, An Interstate employer has the duty to negotiate a collective agreement Analysis of Right to Work Laws, Competitive Enterprise Institute, Washington D.C., 16 July 2014, 26p., online: http://www.cei.org, consulted on 11 February 2015. 38 R. Vedder, supra, note 32, pp. 178-179; R. Vedder and J. Robe, supra, note 36, p. 23. 37 G. Lafer, ‘Right to Work’ The Wrong Answer for Michigan, Brie- 39 fing Paper # 326, Economic Policy Institute, Washington D.C., 15 This bill, called the National Right to Work Act (H.R. 612), was September 2011, 20p., online: http://www.epi.org, consulted on 11 tabled by Representative Steve King (R-Iowa) in Congress 2015-16. February 2015. 40 M. Davey, supra, note 1.

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that will apply to all employees in the bargaining unit, even to those who are against all forms of union representation. On the other hand, no certification can be obtained without majority support in favour of a given union within the bargaining unit, thus leaving without any effective union representation the – sometimes large – minority of employees in the bargaining unit who might wish to unite to collectively present their demands to the employer.

Despite the low general unionization rate, the employer whose employees are represented by a certified union must fulfil all the obligations imposed by law. These obligations will appear especially onerous to this employer if its com- petitors are less likely to be in the same situation because union density is low in the market where it conducts business. In such a case, having to face competition from firms that are unfettered by the obligation to negotiate and the content of the collective agreement, the employer is likely to develop strong union opposition and fight the union presence in its firm in all possible ways. Moreover, employers whose employees are not represented by a certified union will fear this eventuality and do everything possible to avoid it. Thus, whether or not the general unionization rate is low, employer opposition to the legal regime of collective bargaining is likely to remain just as strong. In this context, the employer lobby in favour of the development of Right- to-Work Laws will certainly not lose momentum as long as states resist their enactment.

All signs appear to indicate that the current popularity of Right-to-Work Laws and the enthusiasm of the lobby in their favour are not epiphenomena. On the contrary, they result from the amendments made in 1947 to the Wagner Act of 1935, amendments which were consistent with the very spirit of this model of collective bargaining developed and implemented during a very specific era of industrialization and capitalism in the United States. This is still the only regime proposed by federal law, even though the era during which it emerged is long past. Although it may be anachronistic and inappropriate for the contemporary economic context, and while its influence may have shrunk dra- matically, none of this matters since Right-to-Work Laws remain an effective policy for those who intend to fight it and push it to its utmost limits.

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Equality, Inequalities, Discriminations: Les tendances du droit Interdisciplinary dialogue attempt of social chinois legal and quantitative knowledge Equality, Inequalities, Discriminations Interdisciplinary dialogue attempt of legal and quantitative knowledge

Jérôme PORTA Professor, COMPTRASEC UMR 5114 CNRS - University of Bordeaux LResearches p themes:rob lématiEuropean Law,que Comparatives juridi Law, qInternationalues Social Law, Labour Law, Social Security Law. relatives aux liens entre sportifs professionnels Chriet statutstophe de B ertrvailleurgouignans au japon Professor, COMPTRASEC UMR 5114 CNRS - University of Bordeaux Research themes: Demography of Conflict, Demography of HIV/AIDS, Precarious populations, Impact of spatial mobilities, Prospective tools applieds to local people.

quality is a rather mysterious notion and of- blished and constructed empirically and therefore, more ten surprises those who are contemptuous generally on these forms of knowledge and how they are of easy divisions between theory and prac- produced. tice, knowledge and action, law and fact. A priori, equality is only a simple logical re- Does such an attempt to align legal and quantitative Elationship, almost tautological, meaning identity or more forms of knowledge not mean that we are succumbing to precisely equivalence between two objects. However, in the an optical illusion? What does a lawyer’s equality have in reference to equality, social organisation seems to come common with that of a statistician? What can we learn from together with production of knowledge. In this respect, such a confrontation of forms of knowledge that are so far paying comparative attention to the legal sciences and to apart? Doubts arise first of all from the lexicons of these the quantitative sciences is instructive. Law, economics, different branches of knowledge. Frequently referred to in sociology, statistics, all these branches of knowledge, scientific, normative and political discourse, the notions which at first sight do not readily lend themselves to com- of inequality and discrimination are in fact highly polyse- parison, have in common the reference to equality. mous. Should the variety of the lexicon and the meanings of these requirements for equality not raise doubts about By proposing such a comparison through an interdis- the relevance of any attempt to reconcile them? ciplinary approach, this dossier will examine the way law and the quantitative social sciences envisage equality, ine- From the legal angle, it seemed to us necessary to show qualities and different forms of discrimination. It consists the meanings that equality takes on for legal knowledge by of eight articles written by colleagues, mainly lawyers, but taking the step to one side that comparative law allows. also demographers, economists, practitioners and statisti- And so a number of texts have been collected together. cians. It therefore gives us pause to reflect on the content What they have in common is that they concern one of the attributed to these notions, on the way their reality is esta- branches of the law where the reference to equality has

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shown itself to be particularly fertile, labour law. Four legal access to higher education. Conceived in the absence of monographs testify to the importance that legal standards normative references, the highlighting of such inequalities of equality and non-discrimination have taken on: Brazil, and the search for the mechanisms behind them can then South Africa, India and finally France. The idea was not to lead to misunderstandings or apparent paradoxes. Thus, present a comprehensive overview of equality in each of as the examination of diversity in attitudes, behaviours and these legal systems. On a more modest level, the aim has situations is not distinguished by a normative point of refe- been to testify to the variety of issues likely to be addressed rence, it becomes impossible to extricate what constitutes in the name of equality. An initial observation cannot fail to the inequality, and as result, to use the work done to pro- emerge from such a wide survey. The language of law is mote equality. In such a perspective, discrimination is not rich with expressions called upon to characterise equality: directly amalgamated with these observations, but rather equality, discrimination and equality of treatment are most summoned up by a multitude of potential factors constitu- frequently used. But other, more sophisticated expressions ting a sort of interpretive “warehouse” of the proliferation of taking on the forms of rules can also be identified. The differences/inequalities observed. It is particularly frequent lawyer will recognise for example the “equal pay for equal in the field of territorial analysis which concentrates a web work” rule common to labour law, or its administrative for- of differences and correlations whilst matching them with a mulation requiring that “equivalent situations be treated more and more privileged public intervention space. in an equivalent way”. However, from one legal system to another, no necessary convention seems to impose itself Thus, beyond this impression of the incommensurabi- on writers. And the fecundity of equality in legal language lity of legal and quantitative knowledge, one common idea does not stop there. It has also long been necessary to emerges from these different discourses, that of norma- reckon with the characterisation of equality by adjectives. tivity. Our hypothesis is that the bringing into perspective There is equality on the law and on the facts, it can be for- of these different contributions will reveal a point of inter- mal, abstract or on the contrary material, concrete, subs- section, the reference to normativity inherent to all these tantial, real. More recently, requirements for equality have branches of knowledge. The relationship between norma- been translated into more quantitative notions such as mix, tivity and equality can be broken down into three perspec- parity, even diversity, each of which can only be verified by a tives. measurement of a quantitative nature. First of all, equality is normative. This assertion would From the angle of the quantitative sciences, a similar be stating the obvious if in the language of both politics variety of perspectives brought to bear on equality testify to and law, a difference were not made between equality in the lack of agreement on a common definition of the requi- law and equality in fact. However equality is in fact no less rements of equality. This applies in particular to inequality, conceived with reference to a standard. If it were not the which depending on the context, is expressed using a set of case, the heterogeneity of the phenomena would remain in- virtual synonyms including the terms “difference”, dispa- surmountable. Equality is therefore necessarily expressed rity” and even “dissimilarity”, or uses them in a gradation with reference to a standard. In addition, factual equalities, structured by normative considerations, or again combines whether we call them concrete, material, real, etc. are no them in a dialectic relationship using formulations verging less normative. However, the reference standard will not on the rhetorical. systematically be a legal one. Statistical measurements of equality are no more factual than so-called legal equality. Indeed, in the field of quantitative social sciences, an in- On the other hand, they take other standards as their refe- terpretation of axiological neutrality, at once restrictive and rence. Only an interdisciplinary perspective can reveal the a source of confusion, can sometimes lead to the construc- diversity of the forms of normativity that can be called upon tion of a lexical field of interchangeable terms centred on in the name of equality. the notion of inequality. This will involve talking about differences, disparities, inequalities of income, mortality or

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Secondly, the standards of equality founded the condi- the statistician justifying application operations in much the tions of possibility of these knowledge. They enable the same way as a legal application judgment. shap of facts for each of these disciplines. Law as well as statistics imply references to equality to subsume particu- Without pushing too far the parallel we are drawing lar phenomena into common standards. between legal and quantitative methodologies, it is remarkable that both law and the quantitative sciences, due to This is true for law when equality is understood as their normativity, both imply the reference to equality. From equality before the law. This first idea of law is directly re- these operations, each of these methodologies draws its lated to a certain conception of the operations involved in claim to axiological neutrality, or at least to the objectivisa- applying the law and of the rule of law. Indeed, the prin- tion of the judgments required by these activities that eva- ciple of equality before the rule of law expresses an obli- luate the world. gation to apply general legal standards to concrete cases, in compliance with what they prescribe. The reference to Thirdly, equality has a critical function as regards nor- equality before the law is thus inherent in the idea of appli- mativity. References to equality can be mobilised to chal- cation: the correct application of the legal standard implies lenge or at least test a certain state: a decision, a regula- that it be applied equally to the situations and individuals tion, a distribution of wealth or jobs. it concerns…1 Therein lies, in a sense, the assertion of a This critical use of equality forms the basis of measures principle necessary to the very idea of a standard. In other used in the quantitative sciences to measure inequalities, words, merging with the requirement for regularity in the discrimination suffered or perceived. This requires, indeed, application of the law in general, the principle of equality a value judgment on the legitimacy of the disparities obser- before the rule is “immanent in any legal system”,2 from the ved by an observer. moment that it is defined as a set of rules. According to H. Kelsen, “placing equality before the law means supposing Thus, the measurement of equality necessarily implies simply that the agencies that enforce the law are only entit- in the choice of comparison and the equivalence standard led to take into consideration the distinctions that are made taken as the measure of equality an evaluation, a judgment in the laws to be applied themselves, which amounts to as- on the state of the world. For this reason, these measures serting, quite simply, the principle of regular application of may involve value judgments that are more or less mea- the law in general: a principle that is immanent in any legal ningful. With that in mind, we can for example propose the system, and the principle of the legality of the application of adoption of a normative gradation to bring some order to the laws, which is immanent in all laws - in other words, the the notions of difference, disparity, inequality… and to avoid principle that standards must be applied in accordance with such confusion between a stated axiological neutrality and the standards. Which amounts to expressing quite simply a multiplicity of implied interpretations. According to this 3 the meaning that is immanent in legal standards”. gradation, difference would refer to the non-identicalness between situations or behaviours that is liable to be empi- In the quantitative sciences, the reference to equa- rically observed without it being due to anything other than lity allows for relatively similar operations. The operations factors that are, a priori, independent of human actions. In involved in quantification imply that particular phenomena the field of demography, this applies to the excess mortality can be subsumed by holding them to be equivalent, all of boys in their early years which is due to inherent factors things otherwise being equal. These judgments of equiva- and is therefore observed in most societies. Conversely, the lence are implicit in a whole set of activities required by sta- excess mortality of girls during their early years mainly ob- tistical operations: categorisation, highlighting of dispari- served in India and China cannot be considered as a simple ties, etc. The reference to categories such as age, sex, even difference. In this logic, the notion of inequality goes beyond humanity, necessarily imply the consideration of standards. mere difference and would refer to deviations in situations The adjustment of borderline cases in particular will involve and behaviours resulting from social processes of which they are not one of the ends. 1 H. Kelsen, Théorie pure du droit, Paris, Dalloz, 1962, 2nd ed., p. 146: We could attempt to make a more subtle distinction 2 Ibid. between disparity, which is more neutral in terms of value, 3 Ibid. and inequality which would then refer to the benefit of a

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material, cultural and/or symbolic resource. According to and inequality runs the risk of focusing on certain criteria this gradation, discrimination would be seen as an inequa- depending on the way societies (sometimes relayed by the lity, a direct or indirect consequence of social processes academic world and the institutions) construct their cha- of which it is an end. To be more specific, it would also be racter and the relevance of the register of inequalities and defined by its illegitimate nature. This last element, which discriminations. Thus, the first studies measuring inequali- reinforces the weight of the normative considerations in ties in mortality in their respective countries distinguished this gradation, then raises the question of the perception of between black and white in the United States of America this illegitimacy by the social players. In certain situations, and between social groups in France. Yet it is highly unlikely for example, the discrimination that little girls can suffer that in terms of inequality in mortality at that time it was within their families which sees them having to engage in only “race” that counted in the United States and “class” work at a young age (often partly domestic work, as Richard in France. This variability in the social relevance of the dif- Marcoux’s article demonstrates4), these processes socially ferences structuring the analysis of inequalities no doubt internalised by the perpetrators, the victims and the benefi- poses even more problems when it comes to setting up nor- ciaries will only be seen as illegitimate by comparison with mative systems to combat those inequalities and the discri- external references. Characterising the notion of discrimi- minations that foster them. Concerning the latter, this so- nation by its illegitimacy therefore supposes that there is a cial attribution of the admissibility of a criterion structuring clear definition of what that illegitimacy is based on, pos- their manifestation can turn out to be less skewed, as it is sibly by placing oneself in a position with a point of view difficult to imagine that discriminatory processes, by nature external to the field of manifestation of the discrimination. intentional, could be implemented outside of any collective system of representation. Seeking to articulate differences In a more dialectical logic, the notions of inequality, and and inequalities in a dialectical relationship can sometimes therefore discrimination, can be articulated with that of dif- be very fertile in helping us to understand how these fit into ference, rather than turning them into subsets delimited by the field of representations and social relations, which is more and more restrictive conditions. This articulation de- decisive when it comes to analysing discriminations, but fines the inequalities by referring necessarily to differences probably too restrictive for the measurement of inequalities in access to a resource or a situation resulting more or less alone. directly from differences that exist between people. This highly structured conceptual framework can be constrai- The methods that can be used to measure inequalities ning as it presupposes the prior identification of categories are of variable complexity. They go from simple quantifica- of people in order to be able to observe the inequalities they tion of the dispersion of the distribution of goods, resources may suffer. If we follow this reasoning through, we could no or living conditions in a population to statistical models that longer talk about income inequality simply by analysing its can break down the factors that combine to produce these distribution in the whole population, but only by establishing inequalities, whilst distinguishing the factors that depend the existence of a difference in income between at least on individuals (personal history, belonging to a group….) two subsets likely to be characterised by one or more dif- and their environment (geographical, occupational, educa- ferences. Furthermore, whether we are looking at income, tional….). The main purpose of breaking down the mecha- health or housing, the groups between which there exists a nisms behind inequalities in this way is to control for any difference in the benefit from the resources are diverse, as effects due to hidden variables. The article by Laure Mogue- well as overlapping in some respects; unpicking this tangle rou, Tatiana Eremenko, Xavier Thierry and Rose Prigent, for of causes of the gap observed can be problematic. In other example, demonstrates how the unfavourable situation of words, adopting this logic of articulation between difference immigrant single mothers as regards employment is the result of an accumulation of disadvantages (low qualifications, early motherhood…) whose inclusion in a multivariate 4 This paper is not reproduced below in this English Electronic model nevertheless does not wipe out the role of their past Edition but can be found in the French print issue : see Richard history as migrants.5 This type of analysis can also show Marcoux, « Le travail des enfants au Mali : tentative de mesure et inégalités de genre », in Dossier thématique Égalité, inégalités, discriminations : Essai de dialogue interdisciplinaire des savoirs 5 This paper is not reproduced below in this English Electronic juridiques et quantitatifs, Revue de droit comparé du travail et de la Edition but can be found in the French print issue : see Laure Mo- sécurité sociale, 2015/2, pp. 84-89. guerou, Tatiana Eremenko, Xavier Thierry and Rose Prigent, « Les

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how situations of apparent equality can also conceal une- details can pick up discrimination in career management qual processes. Richard Marcoux’s article is quite evocative and recruitment.8 on this subject, as he explains how the equivalent educational success of boys and girls in Mali is in fact revealed to be Contributions from the labour law field also testify to a product of girls being put to domestic work much more the critical use of the reference to equality. The manifesta- frequently.6 The multivariate model that he uses in fact tions of this legal function of equality as a critical evaluation shows that, with equal involvement in domestic work, girls of legal or social distinctions are actually quite recent. In actually do much better at school than boys. This example, French law, for a long time, equality has been referred to which is on the boundary between inequality and discrimi- more as a justification of the employment contract regime. nation (although the latter seems to be internalised socially It is then the reference to inequality (between the employer and in the family), thus illustrates the potential usefulness and the employee) that is used to explain the originality of of this type of modelling to try and highlight discrimina- labour law, which differs from general contract law which is tory phenomena. In her article, Dominique Meurs places based on a presupposition of abstract equality between the these forms of statistical analysis, “all things otherwise contracting parties. More recently, the rules prohibiting dis- being equal”, within the set of methods liable to be mobi- crimination and imposing equality of treatment which for- lised to this end.7 She shows both the principle that brings bid arbitrary distinctions between employees have served these methods together (the desire to make a comparison as the reference for judges to control employers’ decisions. between groups that differ only by the characteristic assu- The implementation of these rules then opens the way, in med to be the object of the discrimination) and the prac- law, to two types of dispute, concerning the comparability of tical arrangements that separate them. More broadly, she situations on the one hand, and the justification of distinc- explains the requirements of numerical comparison, the- tions on the other. reby adding to our understanding of the distinction between The legal requirements on equality imply the definition statistical proof and legal proof. of a circle of equals within which the situations of employees Data collection plays an important role in the capacity can be compared. In other words, the rule of equality can of the quantitative social sciences to prove the existence of only apply to comparable situations. This was the subject discrimination – and inequalities – and changing certain in- matter of a debate before the Brazilian Supreme Court for formation gathering systems can therefore allow progress a time, concerning so-called intellectual work. While the to be made in this area. The article by Benoît Riandey, Ca- comparability of manual work did not appear to present any therine Quantin, Anne-Marie Benoît and Olivier Cohen ex- difficulties, was that of intellectual work not more questio- plains how innovative systems of secure matching of career nable? This is the dispute dealt with by the contribution of Fabio Rodrigues Gomes and Roberto Fragale Filho before the Tribunal Superior do Trabalho.9 Should the intellectual familles monoparentales immigrées : des familles doublement pénalisées ? », in Dossier thématique Égalité, inégalités, discriminations : Essai de dialogue interdisciplinaire des savoirs juridiques 8 This paper is not reproduced below in this English Electronic Edi- et quantitatifs, Revue de droit comparé du travail et de la sécurité tion but can be found in the French print issue : see Benoît Riandey, sociale, 2015/2, pp. 68-82. Catherine Quantin, Anne-Marie Benoît and Olivier Cohen, « Pro- 6 Richard Marcoux, « Le travail des enfants au Mali : tentative de position d’un dispositif sécurisé de suivi statistique de la diversité mesure et inégalités de genre », in Dossier thématique Égalité, dans les entreprises signataires de la Charte de la diversité », », inégalités, discriminations : Essai de dialogue interdisciplinaire des in Dossier thématique Égalité, inégalités, discriminations : Essai savoirs juridiques et quantitatifs, Revue de droit comparé du travail de dialogue interdisciplinaire des savoirs juridiques et quantitatifs, et de la sécurité sociale, op. cit. Revue de droit comparé du travail et de la sécurité sociale, 2015/2, 7 Dominique Meurs, «Measuring discriminations: economists’ ap- pp. 60-66. proaches», in the present issue, pp. 86-92. A French version of this 9 This paper is not reproduced below in this English Electronic paper is available in the French print version of the journal see : Edition but can be found in the French print issue : see Fabio Ro- Dominique Meurs, « Mesurer les discriminations : les approches drigues Gomes and Roberto Fragale Filho, « Le principe d’égalité des économistes », in Dossier thématique Égalité, inégalités, dis- dans le droit du travail brésilien. Brèves considérations propédeu- criminations : Essai de dialogue interdisciplinaire des savoirs juri- tiques sur l’article 461 de la CLT », in Dossier thématique Égalité, diques et quantitatifs, Revue de droit comparé du travail et de la inégalités, discriminations : Essai de dialogue interdisciplinaire des sécurité sociale, 2015/2, pp. 90-96. savoirs juridiques et quantitatifs, Revue de droit comparé du travail

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contribution of employees not be considered as immeasu- on whether biomedical or societal criteria prevail.11 This rable? The reference to equality thus allows what for a time duality in the definition of disability is echoed by that in the was an important distinction for national legislations to be instruments used to combat disability-related inequality in tested: that between white collar and blue collar, manual the workplace. Laurène Joly shows how two types of system and intellectual, a distinction that corresponds only imper- co-exist in the law: reasonable adaptations in the name of fectly to the division – now much criticised – in the name differential equality and positive actions in the form of hi- of equality between the cadre and the non-cadre (roughly ring quotas for disabled people. Analogously, Debbie Collier equivalent to management vs. clerical/manual workers) in shows how the end of Apartheid and the fight against racial French law. It is the divisions implied by the definition of this discrimination required that the concepts of equality and circle of equals that the legal implementation of the rule discrimination be decisively renewed.12 It is then remar- of equality can lead us to criticise. It is the very limits of kable to see to what extent the understanding of the sys- equality that can thus be tested in the name of equality. Su- temic discrimination suffered by the majority of the South priya Routh’s contribution on this subject is exemplary.10 He African population led to the deployment of a set of instru- raises the question of the application of labour legislation ments and positive actions in favour of equality. to formal workers, leaving informal workers outside the bounds of legal protection. To what extent is this fragmen- The knowledge of inequalities and the legal devices to tation of legal statuses, which creates a gradation within promote greater equality are thus strongly related. A com- those with precarious statuses according to how close they parison of the legal and quantitative sciences’ discourses are to the legal model of the employment relationship, jus- on equality and discrimination offers a rich field of obser- tifiable in the name of the equality proclaimed by the Indian vation of the forms of normativity at work in each of these constitution? The question of course goes beyond Indian discourse systems. It testifies to the articulations necessary law, and even beyond the distinction between formal and between the modes of knowledge about inequalities and the informal work, to concern all labour legislations that are forms of action and the fight against inequalities and discri- confronted with job insecurity, the cause of a fragmentation mination. However, this comparatism regarding normativi- in the statuses of workers. The Indian judge’s response is ties, far from leading to an illusory quest for a homogeni- therefore clearly all the more defective. sation between these evaluations and measures for action, seems on the contrary to enjoin us to (re)think the requi- Furthermore, differences in treatment are not always rements for equality in the context of the pluralism of the stigmatised by the law. They can be justified. Each of the tests to which equality subjects our worldly experiences. contributions helps us to discover the typology of justifications for differences in treatment. They reveal the variety of the justifications that can be called upon in the field of labour law, revealing the (common?) values that come into play when we are talking about work. But it might also be more fundamentally the very definition of the reason for 11 This paper is not reproduced below in this English Electronic discrimination that could be the subject of debate. Lau- Edition but can be found in the French print issue : see Laurène rène Joly’s contribution thus gives us a better idea of the Joly, « L’égalité à l’aune du handicap », in Dossier thématique ambivalence of the characterisation of disability depending Égalité, inégalités, discriminations : Essai de dialogue interdisciplinaire des savoirs juridiques et quantitatifs, Revue de droit com- paré du travail et de la sécurité sociale, 2015/2, pp. 48-59 ; see also Laurène Joly, L’emploi des personnes handicapées entre discrimination et égalité, Dalloz, coll. « Nouvelle Bibliothèque de Thèses », et de la sécurité sociale, 2015/2, pp. 36-47. vol. 147, 2015, § 561 et s. 10 Supriya Routh, «The Constitution’s Step Children: Workers & 12 Debbie Collier, «Discrimination and Equality at Work in South Equality before Law», in the present issue, pp. 76-85. A French ver- Africa», in the present issue, pp. 64-75. A French version of this sion of this paper is available in the French print version of the paper is available in the French print version of the journal see : journal see : Supriya Routh, « Une Constitution à deux vitesses. Les Debbie Collier, « De l’Apartheid à l’action positive : un aperçu de la travailleurs et l’égalité devant la loi en Inde », in Dossier théma- loi sur l’égalité au travail en Afrique du Sud », in Dossier théma- tique Égalité, inégalités, discriminations : Essai de dialogue inter- tique Égalité, inégalités, discriminations : Essai de dialogue interdisciplinaire des savoirs juridiques et quantitatifs, Revue de droit disciplinaire des savoirs juridiques et quantitatifs, Revue de droit comparé du travail et de la sécurité sociale, 2015/2, pp. 24-35. comparé du travail et de la sécurité sociale, 2015/2, pp. 12-23.

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63 Debbie Cnoollierriyuki inoue Associate Professor, Institute of Development and Labour Law, University of Cape Town, (South Africa). Research themes: Employment law, Aspects of workplace discrimination and equality law. Publications: ~ Massie and Collier with Crotty, Executive Salaries in South Africa: Who should have a say on pay?, 2014, Jacana Media Pty Ltd. ~ Fergus and Collier "Race and Gender Equality at Work: The Role of the Judiciary in Promo- ting Workplace Transformation", 2014, South African Journal on Human Rights, pp. 484 – 507.

From apartheid to affirmative action: an overview of equality law in the South African workplace

abstract Apartheid in South Africa privileged white people and discriminated against black people. The classification of race determined where a person could live, the quality of one’s education and the extent to which a person could participate in the South African economy. Apartheid ended in 1994 and today the Constitution prohibits discrimination on numerous grounds, included race, gender, sex, sexual orientation, disability, culture and religion. Further, the Constitution embraces a substantive notion of equality and it permits the use of affirmative action to advance persons that have been disadvantaged by unfair discrimination.

key words : Discrimination, Unfair discrimination, Affirmative action, Apartheid, South Africa.

résumé Le régime de l'Apartheid mis en place en Afrique du Sud avantageait les Sud-Africains blancs aux dépens des Sud-Africains noirs. L’appartenance raciale déterminait l’endroit où chaque personne pouvait vivre, l’édu- cation qu’elle recevait, et sa participation à l’économie sud-africaine. L'Apartheid a été aboli en 1994 et au- jourd'hui la Constitution Sud-Africaine interdit la discrimination sur la base de nombreux motifs, tels que la race, le genre, le sexe, l’orientation sexuelle, le handicap, la culture et la religion. Par ailleurs, la Constitution adopte une notion substantielle de l'égalité et permet la mise en oeuvre de mesures d'action positive afin de favoriser les personnes qui ont été défavorisées par une discrimination injuste.

mots clés : Discrimination, Discrimination injuste, Action positive, Apartheid, Afrique du Sud.

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Although race is by no means the only ground on which which you were permitted to participate in the South African discrimination is experienced in South Africa, the systemic economy. Apartheid laws secured preferential access to the discrimination against black people under colonial rule and labour market for white people and limited the employment the apartheid government provides the broader context in rights of black people.8 An exploitative migrant labour sys- which equality law in South Africa must be understood and tem developed as a result, the effects of which are still felt interpreted. today, as the Marikana Massacre, in which 34 striking plati- num miners were killed in August 2012, is testimony to.9 It is South Africa, like all countries with a colonial past, has not surprising therefore that, in 1993, the Interim Constitu- a history of racial discrimination. Although colonial ties tion in South Africa declared the need to create a new order were cut in 1961 when the Republic of South Africa was in South Africa in which ‘there is equality between men and established, until the first non-racial election in 1994, racial women and people of all races’. 10 While race may be the discrimination was firmly entrenched in law and practice. most visible and egregious ground of discrimination, the South African society was unequivocally divided along racial patriarchal sentiments underlying colonialism and apar- lines in practice and in law. theid resulted in multiple forms of oppression on additio- The policy of apartheid (meaning ‘apartness’) which nal grounds such as gender, sex, sexual orientation, disa- took shape after the National Party came to power in 1948 bility and culture and religion and it is within this context and which remained in force until 1994, enabled the enact- that equality law is to be understood. The right to equality ment of legislation in South Africa that would favour and was provided for in section 8 of the Interim Constitution and 11 advance white South Africans at the expense of black South affirmed in section 9 of South Africa’s Constitution of 1996. Africans.1 The goal of apartheid was to separate black and white people in all spheres of life; and to entrench white I - The constitutional right to substantive 2 dominance and a hierarchy of power based purely on race. equality Every person’s race was recorded3 and race determined where you could live;4 the education you received;5 who you Section 9 of the Constitution provides as follows: could marry;6 your freedom of movement;7 and the extent to • Everyone is equal before the law and has the right to equal protection and benefit of the law.

1 The Population Registration Act 30 of 1950 identified four racial • Equality includes the full and equal enjoyment of groups being White, Coloured, Bantu (Black African) and other. Today the Employment Equity Act 55 of 1998 defines ‘black people’ as ‘a generic term which means Africans, Coloureds and Indians’. (Abolition of Passes and Co-ordination of Documents) Act 67 of 2 For a general account of exploitation and discrimination in South 1952 which forced black people to carry identification with them Africa see Sampie Terreblanche A History of Inequality in South and which required black people to have a permit indicating that Africa 1952 – 2002 (2002) University of Natal Press and KMM Review they were employed in order to remain in ‘white’ urban areas. Publishing Company (Pty) Ltd; and on apartheid policy more speci- 8 fically see Nancy L. Clark and William H. WorgerSouth Africa: The Discriminatory provisions further undermining black peoples’ rise and fall of apartheid 2nd Ed (2011) Pearson Education Limited. equal participation in the labour market can be found in the Indus- trial Conciliation Act 28 of 1956, the Apprenticeship Act 37 of 1944; 3 In terms of the Population Registration Act. the Bantu Building Workers Act 27 of 1951 and the Workmen’s Wa- 4 The Group Areas Act 41 of 1950 physically separated different ges Protection Act 40 of 1956. race groups by determining the residential areas in which the race 9 See Francis Wilson ‘Historical Roots of Inequality in South Afri- groups could reside. This resulted in forced removals of non-white ca’ Economic History of Developing Regions Vol. 26 (1) 2011 and racial groups who had resided in areas designated by the law as Peter Alexander ‘Marikana, turning point in South African history’ being white residential areas. Review of African Political Economy (2013) Vo. 40, No. 138, 605-619, 5 The Bantu Education Act 47 of 1953 which ensured that black although as Alexander points out labour migrancy has replace the Africans would receive an inferior education. migrant labour system. 6 The Prohibition of Mixed Marriages Act 55 of 1949 prohibited 10 Preamble of the Interim Constitution of the Republic of South marriages between non-white and white persons. Africa Act 200 of 1993. 7 The Native Laws Amendment Act 54 of 1952 and the Natives 11 Constitution of the Republic of South Africa Act 108 of 1996.

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all rights and freedoms. To promote the achieve- The Employment Equity Act (EEA) recognises that ‘as ment of equality, legislative and other measures a result of apartheid and other discriminatory laws and designed to protect or advance persons, or catego- practices, there are disparities in employment, occupation ries of persons, disadvantaged by unfair discrimi- and income within the national labour market’13 and its nation may be taken. purpose is to achieve equity in the workplace through two means, firstly by prohibiting unfair discrimination against • The state may not unfairly discriminate directly or employees: every employer is required to take steps to eli- indirectly against anyone on one or more grounds, minate unfair discrimination in any employment policy or including race, gender, sex, pregnancy, marital practice. Secondly, the EEA requires certain designated status, ethnic or social origin, colour, sexual orien- employers to implement affirmative action measures. The tation, age, disability, religion, conscience, belief, provisions of the EEA, and case law interpreting the Act, are culture, language and birth. set out in further detail in the next section. • No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in The purpose of the Promotion of Equality and Preven- terms of subsection (3). National legislation must tion of Unfair Discrimination Act (PEPUDA) is broadly to be enacted to prevent or prohibit unfair discrimi- prohibit unfair discrimination, hate speech and harassment nation. in society. The Act binds the State and all persons and will apply in all instances where there is unfair discrimination • Discrimination on one or more of the grounds and where the EEA is not applicable. While the EEA is the listed in subsection (3) is unfair unless it is esta- primary law dealing with discrimination in the workplace, blished that the discrimination is fair. and most cases of workplace discrimination are resolved in The traditional approach is that constitutions have ver- terms of the EEA, the PEPUDA will apply to certain work- tical application and as such they bind the State and prohi- place disputes where the EEA is not applicable. For example bit the State from infringing on the rights of individuals and PEPUDA has provided remedies for unfair discrimination to institutions. The South African Constitution however also an independent contractor discriminated against on the 14 has horizontal application and it is not only the State that basis of his sexual orientation, and to an applicant for the is prohibited from infringing on the rights of individuals; but position as a magistrate who was discriminated against on 15 also individuals and institutions that are prohibited from the basis of disability, neither of whom are protected as doing so.12 A constitutional obligation is therefore imposed employees in terms of the EEA. on everyone not to unfairly discriminate against any other Although workplace discrimination cases are resolved person on any grounds, including the numerous grounds through the application of the provisions of the EEA, the listed in s 9(3). provisions of the EEA must be interpreted in compliance Of particular relevance to discrimination and equality in with the Constitution,16 and in many workplace discrimi- the workplace are subsections 9(2) and 9(4) of the Consti- nation cases the Constitutional right to equality is refer- tution. Section 9(2) permits legislation that would require red to and the principles that have been established by the remedial measures, such as affirmative action in the work- Constitutional Court are relied upon to resolve workplace place, to address inequality; and s 9(4) requires legislation to be enacted to prevent or prohibit unfair discrimination which includes unfair discrimination in the workplace. In 13 Preamble to the Employment Equity Act 55 of 1998. terms of s 9(4), two laws have been enacted - 14 Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (2009) 30 ILJ 868 (EqC). • the Employment Equity Act 55 of 1998 (EEA); and 15 Singh v Minister of Justice and Constitutional Development and • the Promotion of Equality and Prevention of Unfair Others 2013 (3) SA 66 (EqC). Discrimination Act 4 of 2000 (PEPUDA). 16 S 3(a) of the EEA. In addition, in terms of s 3(d) the Act must be to be interpreted in compliance with South Africa’s international law obligations, which includes the obligation to comply with the Inter- 12 Pierre de Vos and Warren Freedman (Eds) South African Consti- national Labour Organisation (ILO) Convention No. 111 concerning tutional Law in Context (2014) Oxford University Press. Discrimination in Respect of Employment and Occupation.

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discrimination cases. In this regard, two important aspects equality of outcome and the content of the right to subs- of the Constitutional Court’s approach to equality and unfair tantive equality will depend in each case on the relevant discrimination should be highlighted, namely, the (1) the context. As the Constitutional Court has explained: notion of substantive equality and the need for remedial measures; and (2) the role of dignity in establishing unfair ‘This substantive notion of equality recognises that discrimination. besides uneven race, class and gender attributes of our society, there are other levels and forms of social diffe- A - Substantive equality and the need for rentiation and systematic under-privilege, which still per- remedial measures (such as affirmative action) sist. The Constitution enjoins us to dismantle them and to prevent the creation of new patterns of disadvantage. It is Racial discrimination was institutionalised in South therefore incumbent on courts to scrutinise in each equa- Africa by the practices, policies and laws adopted by our lity claim the situation of the complainants in society; their colonial masters and the oppressive system of apartheid. It history and vulnerability; the history, nature and purpose of is with this context in mind that our equality clause must be the discriminatory practice and whether it ameliorates or interpreted. As the Constitutional Court explains: adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values ‘The policy of apartheid, in law and in fact, systema- of our Constitution. In the assessment of fairness or othe- tically discriminated against black people in all aspects of rwise a flexible but “situation-sensitive” approach is indis- social life. Black people were prevented from becoming pensable because of shifting patterns of hurtful discrimina- owners of property or even residing in areas classified as tion and stereotypical response in our evolving democratic ‘white’, which constituted nearly 90% of the landmass of society. The unfair discrimination enquiry requires several South Africa; senior jobs and access to established schools stages. These are set out by this Court in Harksen v Lane and universities were denied to them; civic amenities, in- NO and Others.’18 (original footnotes omitted) cluding transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate While the test for unfair discrimination is established in and inferior facilities were provided. The deep scars of this Harksen v Lane NO (discussed below), an additional test has appalling programme are still visible in our society. It is in been crafted by the Constitutional Court, within the context the light of that history and the enduring legacy that it be- of the notion of substantive equality, to establish whether a queathed that the equality clause needs to be interpreted.’17 restitutionary or remedial measure (a measure designed to benefit disadvantaged groups in order to promote the achie- Systemic racism has significantly impacted on the so- vement of equality) is constitutional in terms of s 9(2). The cial and economic development of black people, and it is test was articulated in Minister of Finance and another v generally accepted that equal treatment and simply elimi- Van Heerden 19 when the court was required to establish the nating discriminatory laws and practices will not advance lawfulness of a scheme that provided preferential pension equality and social justice in South Africa. The Constitutio- benefits to members of parliament that had previously been nal Court has therefore articulated that a formal approach discriminated against on the grounds of race and who were to equality, in which all people are treated equally, is ina- prohibited from being members of parliament prior to 1994. dequate to overcome the effects of past discrimination and that such an approach may in fact perpetuate the subordi- The Constitutional Court reasoned that ‘to determine nation of disadvantaged and vulnerable groups. A substan- whether a measure falls within 9(2) the enquiry is threefold. tive or asymmetrical approach to equality is embraced to The first yardstick relates to whether the measure targets remedy the effects of discrimination and prejudice against persons or categories of persons who have been disadvan- black people but also against other vulnerable groups in- taged by unfair discrimination; the second is whether the cluding women, people with disabilities, gay men, lesbians, measure is designed to protect or advance such persons or bisexual, transgender and intersexed people. The goal is

18 Minister of Finance v Van Heerden 2004 (6) SA 121 (CC); [2004] 17 Brink v Kitshoff NO 1996 (4) SA 197 (CC); [1996] ZACC 9 at para ZACC 3 at para [27] [40]. 19 2004 (6) SA 121 (CC).

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categories of persons; and the third requirement is whether Constitution as a value on which South Africa is founded;22 the measure promotes the achievement of equality.20 and in addition the Constitution provides that ‘[e]veryone has inherent dignity and the right to have their dignity The three parts to the test for establishing the consti- respected and protected.’23 There is a close association tutionality of restitutionary measures may be summarised between equality and dignity. In this regard dignity is seen as follows: firstly, the beneficiaries must be from a group as central to understanding equality: conduct that amounts that has previously been discriminated against; secondly, to discrimination is conduct that undermines the dignity of the measures must be reasonably capable of achieving the the person being discriminated against. The Constitutional desired outcome and must not be arbitrary or capricious in Court explains the importance of dignity as follows: their design; and thirdly, in its implementation, the measure must not constitute an abuse of power or impose substan- ‘Respect for the dignity of all human beings is particu- tial and undue harm to those who are excluded from the larly important in South Africa. For apartheid was a denial measure. of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans The constitutional boundaries for restitutionary mea- was diminished. The new constitution rejects this past and sures and the notion of substantive equality are important affirms the equal worth of all South Africans. Thus reco- in understanding and implementing the legal framework for gnition and protection of human dignity is the touchstone affirmative action measures in the workplace as required of the new political order and is fundamental to the new by the EEA. These provisions and their interpretation in la- constitution.’24 bour law cases are discussed in further detail below. Before doing so, the next section considers the ‘test’ developed by The third point to note is that the South African Consti- the Constitutional Court for establishing unfair discrimina- tution has a general limitations clause that is applicable tion as set out in Harksen v Lane NO and Others21 and the to all of the rights in the Bill of Rights and determines the central role which dignity plays in the regard. extent to which rights in the Bill of Rights may be limited, including the right to equality. In this regard, s 36 (limitation B - The ‘test’ for establishing unfair of rights) provides that the rights in the Bill of Rights may discrimination be limited only in terms of law of general application and only to the extent that the limitation is reasonable and justi- There are three aspects of the formulation of South fiable in an open and democratic society taking into account Africa’s equality clause and the Bill of Rights more general- relevant factors such as (1) the nature of the right; (2) the ly that inform the test for establishing unfair discrimination. importance of the purpose of the limitation; (3) the nature The first is that, unlike the position in other jurisdictions and and extent of the limitation; (4) the relation between the in international law instruments, the word discrimination is limitation and its purpose; and (4) less restrictive means to preceded by the word ‘unfair,’ which implies that discrimi- achieve the purpose. nation can be fair. This has given rise to much debate and discussion and it underlies the formulation in Harksen v These three aspects of the Bill of Rights– the use of Lane NO. the term ‘unfair’ in s 9; the importance of dignity; and the limitations clause - inform the three ‘stages of enquiry’ set The second aspect of the Constitution that informs out in Harksen v Lane NO which can be summarised as equality and discrimination law is the concept of dignity, a follows:25 contested concept in terms of its legal content, and the central role which dignity plays in the interpretation of other fundamental rights. Human dignity is recognised by the 22 Section 1 of the Constitution. 23 Section 10 of the Constitution. 24 S v Makwanyane 1995 3 SA 391 (CC); [1995] ZACC 3 at para [329]. 20 At para [37]. This approach was subsequently confirmed by the 25 See para [50] in Harksen v Lane NO although note that Harksen Constitutional Court in South African Police Service v Solidarity obo v Lane NO was decided under the Interim Constitution (and hence Barnard 2014 (6) SA 123 (CC). reference is made to s 8 and s 33). However the applicable provi- 21 Harksen v Lane NO 1998 (1) SA 300 (CC). sions under the Interim and the final Constitution are not funda-

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In stage 1: the enquiries are (1) whether there is in important for two reasons. Firstly, matters decided in the fact differentiation; and if so, whether the differentiation is Labour and Labour Appeal Courts in terms of the EEA may rationally connected to a legitimate purpose, which requires be appealed to the Constitutional Court; and secondly when that the differentiation must be an appropriate and effec- applying the provisions of the EEA the relevant labour dis- tive means to achieve a legitimate purpose. However, even pute bodies, being the Commission for Conciliation, Media- if the differentiation is rationally connected to a legitimate tion and Arbitration (the CCMA) and the Labour and Labour purpose, it may still amount to unfair discrimination in Appeal Courts, are bound by the decisions of the Consti- terms of the second stage of the test. tutional Court and it is within the broader constitutional context that the provisions of the EEA are interpreted. In stage 2: the test distinguishes between differentiation on specified and unspecified grounds. If the differen- As mentioned above, the EEA seeks to achieve equity tiation is on a specified ground then both discrimination and in the workplace through two means, firstly by prohibiting unfairness are presumed; however if the differentiation is unfair discrimination against employees; and secondly by on an unspecified ground it will only amount to discrimi- requiring certain designated employers to implement affir- nation if the unspecified ground is based on characteris- mative action measures in accordance with the EEA. The tics which have the potential to impair human dignity or to remainder of this paper deals with these two aspects of adversely affect persons in a comparably serious way. This the EEA. It should also be noted that several Codes of Good requires a consideration of the impact of the discrimination Practice have been issued in terms of the EEA that provide on the complainant – it must impair human dignity or be employers with assistance in implementing its provisions.28 of a comparably serious nature - and the factors that will be considered include (a) the position of the complainant in society and any past patterns of disadvantage that the II - Prohibition of unfair discrimination in complainant is subjected; to as well as (b) the purpose of the workplace the discriminating conduct and whether it is intended as a remedial measure in itself; and (c) any other factors.26 A - Chapter III of the Employment Equity Act

In stage 3: the enquiry considers the factors set out Chapter II of the EEA is titled ‘prohibition of unfair dis- in the limitations clause (now s 36) which requires the court crimination’ and the Chapter provides a number of provi- to engage in a proportionality analysis. There is however sions that an applicant29 or an employee may rely on in the some overlap between the considerations in stages 1 and event of discrimination in the workplace. 2 and the proportionality approach, which likely reduces the scope for additional meaningful analysis in terms of s 36. Section 5 of the EEA requires every employer to eliminate unfair discrimination in any employment policy or It should be remembered however that applicants practice. The following policies and practices are listed as or employees are required to pursue their unfair discrimination disputes in terms of the procedures prescribed by the EEA and not directly in terms of the Constitution.27 28 Existing Codes of Good Practice include the Code of Good Prac- Nevertheless the Constitutional Court and its decisions are tice: Preparation, Implementation and Monitoring of Employment Equity Planes; the Code of Good Practice on the Employment of People with Disabilities; the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace; the mentally different from each other. Code of Good Practice on the Integration of Employment Equity 26 At para [52]. into Human Resource Policies and Practices; and the Code of Good 27 Minister of Health and another v New Clicks South Africa (Pty) Practice on HIV and AIDS and the World of Work. Ltd and others (Treatment Action Campaign and another as amici 29 Section 9 of the EEA extends the protection against unfair discri- curiae) 2006 (2) SA 311 (CC). The Labour Court has however been mination in any employment policy or practice to applicants as well prepared to grant constitutional damages for harm caused by as employees. In addition, applicants are including in the protec- sexual harassment in the workplace in circumstances where the tion against medical testing, psychological testing and other simi- EEA was not applicable: see Piliso v Old Mutual Life Assurance Co lar assessments which are prohibited unless certain requirements (SA) Ltd & others (2007) 28 ILJ 897 (LC). have been met.

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examples in the definitions clause:30 4. A difference in terms and conditions of employment between employees of the same employer • Recruitment procedures, advertising and selection performing the same or substantially the same criteria; work or work of equal value that is directly or in- • Appointments and the appointment process; directly based on any one or more of the grounds • Job classification and grading; listed in subsection (1), is unfair discrimination. • Remuneration, employment benefits and terms 5. The Minister [of Labour] … may prescribe the and conditions of employment; methodology for assessing work of equal value • Job assignments; contemplated in subsection (4).31 • The working environment and facilities; The EEA provides that in the event of a dispute concer- • Training and development; ning Chapter II, the dispute must be referred in writing to • Performance evaluation systems; the Commission for Conciliation, Mediation and Arbitration • Promotion; (the CCMA) within six months after the act or omission that allegedly constitutes unfair discrimination.32 The CCMA is • Transfer; an independent dispute resolution body established by the • Demotion; Labour Relations Act 66 of 1995 (the LRA) to resolve labour • Disciplinary measures other than dismissal; and disputes referred to the CCMA, initially through concilia- 33 • Dismissal. tion. If a dispute remains unresolved after conciliation the CCMA may resolve the dispute through arbitration provided 34 The pivotal provision in Chapter II is s 6 titled prohibi- that the dispute is one which the LRA or the EEA requires tion of unfair discrimination which provides the following: arbitration if a party requests it, or, if the dispute is one which the Labour Court has jurisdiction over and the parties 1. No person may unfairly discriminate, directly or have consented to arbitration.35 indirectly, against an employee, in any employment policy or practice, on one or more grounds, inclu- B - Proving unfair discrimination ding race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, Section 6 of the EEA prohibits both direct and indirect sexual orientation, age, disability, religion, HIV sta- discrimination in any workplace policy and practice. The de- tus, conscience, belief, political opinion, culture, cision in Leonard Dingler Employee Representative Council language, birth, or on any other arbitrary ground. 2. It is not unfair discrimination to – 31 a) take affirmative action measures consistent with the In this regard the Employment Equity Regulations, 2014 were gazetted in August 2014 to prescribe the criteria and methodology for purpose of this Act; or assessing work of equal value. In addition a Code of Good Practice b) distinguish, exclude or prefer any person on the ba- on Equal Pay/Remuneration for Work of Equal Value was gazetted sis of an inherent requirement of a job. on 1 June 2015. The objective of the Code is to guide employers and employees on how to implement the equal pay principle. 3. Harassment of an employee is a form of unfair dis- 32 crimination and is prohibited on any one, or a com- Section 10 of the EEA. bination of grounds of unfair discrimination listed 33 Section 112 of the LRA. in subsection (1). 34 In terms of s 10(6) of the EEA, if the dispute remains unresolved after conciliation any party to the dispute may refer it to the Labour Court for adjudication; and an employee may refer the dispute to the CCMA for arbitration if the unfair discrimination is alleged on the grounds of sexual harassment; or if the employee earns an income that is below a certain threshold; or if all the parties consent to arbitration of the dispute. 30 Section 1 of the EEA. 35 Section 115 of the LRA.

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v Leonard Dingler (Pty) Ltd & others 36 confirms that motive a) the conduct complained of is not rational; or the intention to discriminate is not relevant in determi- b) the conduct complained of amounts to discrimina- ning discrimination, regardless of whether the discrimination; and tion is direct or indirect, although the absence of intention c) the discrimination is unfair. may inform the nature of the remedy awarded by the court. The elements of the EEA that determine when discri- The concept of indirect discrimination was explored by mination is unfair in many ways reflect the two tests set out the Labour Court in the Leonard Dingler case where the in the Van Heerden and the Harksen v Lane NO test. More court considered the practice of the employer in terms of specifically the various steps in a particular case might, de- which hourly paid employees (who were black employees) pending on the facts, involve a particular focus on any one were not permitted to join the staff benefit fund which or more of the elements in the following stages that might monthly and weekly paid employees (who were mostly white be required in a consideration as to whether a particular act employees) were members of. The employer argued that or omission amounts to unfair discrimination: differentiation between hourly and monthly or weekly paid employees was not on a prohibited ground. The court, with 1. If the alleged discrimination is on a listed ground, reference to the concept of ‘disparate impact’ explored in the employee must ‘allege’ unfair discrimination the well-known case of Griggs v Duke Power Co,37 accep- and the ground on which the discrimination was ted that ‘indirect race discrimination occurs when criteria, based. The evidentiary burden on the employee conditions or policies are applied which appear to be neu- in this regard is to allege facts that demonstrate tral, but which adversely affect a disproportionate number differential and inferior treatment between indivi- of a certain race group in circumstances where they are duals or groups41 that is caused by (or based on) not justifiable.’38 In Leonard Dingler the court found that a prohibited ground such as race, gender, sex or ‘the restriction of the staff benefit fund to monthly paid pregnancy for example. Guidance in this regard employees has a disparate impact on the company’s black is provided by the Labour Appeal Court (LAC) in a employees’39 and the company was required to address this case involving discrimination or victimisation on discriminatory effect. the grounds of an employee’s engagement in trade union activities. Although based on an ‘automati- In terms of the burden of proof in a discrimination dis- cally unfair dismissal’42 claim in terms of the La- pute, s 11 of the EEA provides that: bour Relations Act (LRA), the principles articulated 1. If unfair discrimination is alleged on a ground in Kroukam v SA Airlink (Pty) Ltd 43 are instructive. listed in section 6(1), the employer against whom The LAC in Kroukam indicates that the employee the allegation is made must prove, on a balance of must produce evidence which is ‘sufficient to raise probabilities,[40] that such discrimination – a credible possibility’ regarding the unfair act or a) did not take place as alleged; or omission; and requires a consideration as to whe- b) is rational and not unfair, or is otherwise justifiable. ther the alleged ground for the discrimination, 2. If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance 41 of probabilities, that: It would seem that it is not always necessary that a literal, physical comparator be identified and that it is adequate if it is evident from the facts that ‘but for’ a prohibited ground, an employee would 36 (1998) 19 ILJ 285 (LC). have been treated more favourable. See in this regard Mutale v Lor- com Twenty Two CC (2009) 30 ILJ 634 (LC) which involved a recruit- 37 401 US 424 (1971). ment and remuneration policy in terms of which a white applicant 38 At p. 292. would be offered more for the position than a black applicant. 39 At p. 293. 42 An ‘automatically unfair dismissal’ is a term used in the LRA to 40 On a ‘balance of probabilities’ is the standard of proof required refer to ‘discriminatory’ dismissals, for example where the reason in civil law cases. It requires the party who has the burden of proof for the dismissal is pregnancy or sexual orientation or other discri- to put sufficient facts before the court or tribunal to persuade the minatory grounds. court that his or her version of events is the more probable version. 43 (2005) 26 ILJ 2153 (LAC).

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for example pregnancy, is the ‘dominant’ or most ployees religious and cultural practices49 the employer likely cause of the discrimination.44 The LAC went is required to make reasonable accommodation50 of the so far as to suggest that it would be adequate if the employees beliefs. It has further been held that ‘fit- unacceptable reasons ‘played a significant role in ness to fly’ and not age is an inherent requirement of the decision’.45 the job of a pilot51; and that sexual orientation (being hetrosexual) is not an inherent requirement of the job 2. Once unfair discrimination is alleged on a listed for a music teacher at the church,52 although it may be ground, it is then a question as to whether the em- in the case of a spiritual leader. Inherent requirements ployer can produce evidence to prove that either:- of the job on the basis or sex or gender53 and race54 will also be narrowly construed. a) The discrimination did not take place as alleged; or b) The discrimination is rational and not unfair; or An employer may also respond to an allegation of unfair c) The discrimination is otherwise justifiable. discrimination by indicating that the act or omission which is allegedly discriminatory is justified in terms For example if the employee alleges that a pay diffe- of an employment equity plan or affirmative action rential between employees or groups of employees is measures in terms of the EEA. In this regard the recent based on race in breach of the equal pay for work of Constitutional Court decision in South African Police equal value principle, the employer may provide evi- Service v Solidarity obo Barnard55 confirms that the dence that the jobs being compared are in fact objecti- vely different in terms of complexity, responsibility and subordinates being supervised and that the difference 49 In Department of Correctional Services & another v Police & in pay is based on these objective differences and not Prisons Civil Rights Union & others (2013) 34 ILJ 1375 (SCA) the 46 on race. Supreme Court of Appeal held that the Department’s short-hair policy for men amounted to gender/sex discrimination against men Differentiation that is based on a listed ground may and unnecessarily restricted the religious and cultural practices of be rational and fair if it relates to an inherent require- employees. ment of the job or to the implementation of an affirma- 50 Reasonable accommodation is an important concept in South tive action plan. A number of principles have emerged African equality law and plays a role in determining the fairness of to guide the courts in deciding whether a require- discrimination. In the context of reasonable accommodation of reli- ment is inherent to the job. More specifically the ap- gion and culture see MEC for Education, KwaZulu-Natal & others proach in this regard is strict and narrow rather than v Pila 2008 (1) SA 474 (CC) where it is indicated that accommoda- permissive;47 for example a ‘blanket ban’ prohibiting tion requires positive measures and even additional hardship or persons with diabetes from being employed as firefigh- expense to allow all people to participate and enjoy all their rights ters is discriminatory;48 and where a dress code does equally. (para [73]). 51 not impact on performance and conflicts with the em- South African Airways (Pty) Ltd v Jansen van Vuuren & another (2014) 35 ILJ 2774 (LAC). 52 Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (2009) 30 ILJ 868 (EqC) 44 At paras [28] – [29]. 53 In Ehlers v Bohler Uddenholm Africa (Pty) Ltd [2010] JOL 26216 45 At para [102]. (LC) an employee was asked to hide that she was a transsexual as 46 See for example Louw v Golden Arrow Bus Services (Pty) Ltd she had been employed as a male in a male dominated environ- (2001) 22 ILJ 2628 (LAC). ment. The court concluded that the fact that she ‘was asked to hide 47 See generally in this regard Alan Rycroft ‘Inherent requirements that she is a transsexual is per se unfair discrimination.’ (para [35]) of the job’ (2015) 36 ILJ 900. 54 For example a policy in terms of which only white housemothers 48 Independent Municipal & Allied Workers Union & another v City are permitted to supervise white children will not be justifiable on of Cape Town (2005) 26 ILJ 1404 (LC). The position is that an em- the basis of inherent requirements of the job. See in this regard ployer must establish, through individual assessment, the health National Education Health & Allied Workers Union on behalf of of a particular applicant or employee and not impose a blanket Mofokeng & others v Charlotte Theron Children’s Home (2004) 25 ban on the basis of health concerns. Similarly, this is the case for ILJ 2195 LAC). employees that are HIV positive. 55 2014(6) SA 123 (CC).

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three-prong approach adopted in the Van Heerden case In South African there is a growing body of case law is the appropriate standard for assessing the lawful- relating to allegations of harassment, typically on the ness of such measures. 56 Barnard was a white female grounds of gender or sex61 and race.62 To assist an em- police officer who had twice applied for promotion and ployee that has been a victim of discrimination, s 60 of was denied the position on the basis of an employment the EEA provides for the liability of an employer for the equity plan which reflected that white women were actions or an employee provided that the employee’s already over-represented at that particular salary level conduct is brought to the attention of the employer. based on national demographics. No appointment was The employer is required to take the necessary steps ever made to the position in fact, and the position no to eliminate the alleged conduct and a failure to do so longer exists. The Constitutional Court focussed on the will result in the employer being liable for the discri- third aspect of the Van Heerden test, the implemen- mination.63 The employer will not be liable however if tation of the measure, as this was contested by the the employer did all that was reasonably practicable to parties, and found that the employer’s approach was ensure that the employee would not act in contraven- rational and had not established an absolute barrier tion of the EEA. to Barnard’s promotion as she had subsequently been promoted elsewhere in the organisation. Barnard was It should also be noted that an employee who has been therefore unsuccessful in her unfair discrimination subjected to unfair discrimination under the EEA may claim. Barnard may however have been successful if simultaneously have remedies under the Labour Rela- the failure to appoint her had undermined the efficiency tions Act 66 of 1995 (the LRA) provided of course that of the police services;57 or if the employer had already the requirements for liability in terms of the LRA are reached the targets established in the policy being ap- met. For example, in the Ntsabo case the employee who plied.58 had been subjected to sexual harassment and had resigned after the employer failed to adequately address It should also be noted that where the employer’s dis- her complaints was awarded compensation under the criminatory conduct arises out of the terms agreed in a LRA for a constructive dismissal as well as damages collective agreement, this in itself does not protect the and compensation under the EEA for medical costs in employer against a claim for unfair discrimination.59 respect of psychological counselling and for humilia- tion and impairment of dignity. 3. A third possibility is that the alleged discrimination is on an arbitrary60 ground, in which case the employee bears a more significant burden and must establish, on a balance of probabilities, that the conduct is not rational, and amounts to unfair discrimination.

61 See for example Christian v Colliers Properties [2005] 5 BLLR 479 (LC); Dial Tech CC v Hudson & Another (2007) 28 ILJ 1237 (LC); Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC); Makoti v Jesuit Refugee Service SA (2012) 33 ILJ 1706 (LC); Matsomai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC); and Potgieter 56 Provided that the remedial measures taken are consistent with v National Commissioner of the SAPS & another [2009] 2 BLLR 144 the requirements in Van Heerden, the Harksen v Lane NO analysis (LC). will not need to be engaged in. 62 See for example Biggar v City of Johannesburg, Emergency 57 Coetzer v Minister of Safety & Security [2003] 2 BLLR 173 (LC). Management Services [2011] 6 BLLR 577 (LC); SATAWU obo Finca v Old Mutual Life Assurance Company (SA) Ltd & another [2006] 8 58 University of South Africa v Reynardt (2010) 31 ILJ 2368 (LAC). BLLR 737 (LC); and Crown Chickens (Pty) Ltd t/a Rocklands Poultry 59 See South African Airways (Pty) Ltd v GJJVV & others (2014) 8 v Kapp & others (2002) 6 BLLR 493 (LAC). BLLR (LAC). 63 See for example the Ntsabo case in which the employer failed 60 The ‘arbitrary ground’ was introduced when the EEA was to take necessary steps after an employee sexually harassed the amended in 2013. complainant.

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III - Affirmative action in the workplace A question that has arisen in the courts, in view of the affirmative action provisions in the EEA, is whether an individual employee or an applicant has a right to benefit from A - Chapter III of the EEA affirmative action? Chapter III of the EEA requires designated employers64 B - Is there a right to affirmative action in to implement affirmative action measures for suitably quali- South Africa? fied65 people from designated groups to ensure that the designated groups are equitably represented in all occupational In Harmse v City of Cape Town71 the Labour Court levels in the workforce. The designated groups are South concluded that affirmative action is clearly a defence against African citizens who are black people, women and people an unfair discrimination claim, but that it can also form the 66 with disabilities. Black people means Africans, Coloureds basis of a cause of action. The court maintained that the EEA 67 and Chinese. provides a right to affirmative action and that ‘[t]he exact scope or boundaries of such a right are a matter that will Chapter III requires an employer to consult with em- have to be developed out of the facts of each case.’72 Howe- ployees regarding employment equity; to draft an employ- ver, this position was soon reversed by the court, and confir- ment equity plan; and to report to the Director-General of the med on appeal, in Dudley v City of Cape Town and another73 Department of Labour. If an employer does not comply with where the Labour Appeal Court concluded that ‘the conduct these provisions, an employee or trade union may approach of a designated employer in failure (sic) to give a member a labour inspector or the director-general and a labour ins- of the designated group who has applied for employment pector may request and obtain a written undertaking to com- preference to those candidates who are not members of the ply from the employer,68 or may to issue a compliance order69 designated group in the filling of a post does not on its own and may approach the Labour Court for an order in this constitute unfair discrimination.’74 The principle that there regard. The Director-General has powers to review an em- is no right to affirmative action was confirmed in the context ployers’ compliance with the EEA and to approach the Labour of retrenchments in Thekiso v IBM South Africa (Pty) Ltd75 Court to impose a fine on the employer for non-compliance.70 where the Labour Court concluded that the EEA does not impose an obligation on an employer to retain black employees in preference to white employees. 64 ‘Designated employers’ are defined in s 1 of the EEA and includes organs of states and private employers with 50 or more employees or with a large turnover. Conclusion 65 A person may be suitably qualified as a result of any one or a combination of that person’s (a) formal qualifications; (b) prior learning; or (c) capacity to acquire, within a reasonable time, the Workplace equality and discrimination law is a critical, ability to do the job. S 20 of the EEA. but limited, tool in the struggle to overcome the prejudice 66 Employers must reasonably accommodate persons with disa- and systemic disadvantage experienced by black people that bilities in the workplace unless such accommodation amounts to was exacerbated by apartheid law and policy, and the regula- unjustifiable hardship in that it requires significant or considerable tory regime in this regard is well-developed in South Africa. difficulty or expense. See the Code of Good Practice on Key Aspects The substantive notion of equality requires the law to be par- of Disability. 67 S 1 of the EEA, Chinese people were added to the designated group by the High Court in Chinese Association of South Africa 28 ILJ 880 (LC); and Director-General, Department of Labour v Win- & others v The Minister of Labour & others Case No. 59251/2007 Cool Industrial Enterprise (Pty) Ltd (2007) 28 ILJ 1774 (LC). (unreported). 71 [2003] 6 BLLR (LC). 68 S 36 of the EEA. 72 At para [49]. 69 S 37 of the EEA. 73 (2008) 29 ILJ 2685 (LAC). 70 See for example Director-General, Department of Labour & 74 another v Comair Ltd [2009] 11 BLLR 1063 (LC); Director-General At para [54]. of the Department of Labour v Jinghua Garments (Pty) Ltd (2007) 75 (2007) 28 ILJ 177 (LC).

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ticularly sensitive and responsive to the plight of vulnerable and marginalised communities, whether on the basis of sex, gender, race, disability, sexual orientation or any of the other grounds or on a combination of grounds.

There are many systemic barriers to achieving equality of outcome in South Africa and there is much scope in law and in policy to improve access to employment and the workplace experience of vulnerable employees.76 Recent statistics from the Commission of Employment Equity Annual Report77 show a gradual increase in the representation of black people and women and suggest that there is room for cautious optimism in this regard, however gender and race parity in all aspects of the labour market still remains only a distant possibility.

76 In the context of employment law, see Emma Fergus and Debbie Collier ‘Race and gender equality at work: the role of the judiciary in promoting workplace transformation’ South African Journal on Human Rights Vol. 30 2014 (3) p. 484 – 507. 77 Commission for Employment Equity Annual Report 2014-2015.

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Assistant Professor, Faculty of Law, University of Victoria (Canada). Research themes: Unionism, Informal workers, Labour law, Human Rights. Publications: ~ “Informal Workers’ Aggregation & Law”, 16: 2 Theoretical Inquiries in Law (2016). ~“Les bases juridiques de la responsabilité sociale des entreprises en Inde”, in Mireille Delmas- Marty and Alain Supiot (Dir.), Prendre la responsabilité au sérieux (Paris: Presses Universi- taires de France, 2016).

The Constitution’s Step Children: Workers & Equality before Law

abstract The Indian Constitution is based on the ideals of justice, liberty, equality, and fraternity. In this article, I analyse the contours of the idea of equality in the Constitution of India from the point of view of the marginalised informal workers. In spite of the constitutional guarantee of “equality before the law [and] equal protection of the laws”, as a class (group), they are treated unequally from that of the formal workers. I argue that this unequal treatment results from a narrow and technical understanding of the equality principle in the Consti- tution. key words: Equality, Constitution of India, Informal workers.

résumé La Constitution indienne est fondée sur les idéaux de justice, de liberté, d'égalité et de fraternité. Cet article analyse les contours du concept d'égalité dans la Constitution indienne en se positionnant du point de vue marginalisé des travailleurs informels. Malgré la garantie constitutionnelle d'«égalité devant la loi [et] de protection égale par la loi », les travailleurs informels sont, en tant que classe (groupe), traités de façon iné- gale avec les travailleurs formels en Inde. Ce traitement inégal ne serait, selon l'auteur, que le résultat d'une interprétation étroite et bureaucrate du principe d'égalité présent dans la Constitution indienne.

mots clés : Égalité, Constitution indienne, Travailleurs informels.

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n this article I will engage with the idea of equa- I - Conceptualising Informal from a Legal lity as conceptualised under the Indian Constitu- Point of View tion. I will contextualise the Constitutional idea of equality in the backdrop of the unequal treatment Some legal scholars think that the idea of informal is of formal and informal workers in India so far as useless.1 They conflate the idea of informal with illegal.2 Istatutory labour rights are concerned. The Constitution of They go so far as to say that if exclusion from legislative India guarantees right to equality as a fundamental right to safeguard creates informal, the offence of theft should be all persons within the territory of India. However, the Indian considered an “informal property arrangement.”3 This ana- judiciary has interpreted this right to equality in a narrow logy makes a caricature of the experiences of the workers technical sense in order to secure equality of treatment who are deprived of legally protected rights. While it is true amongst individuals when these individuals are entitled to that several employers intentionally avoid legal obligations certain specified legislative rights. Understood in such a and therefore their conduct is vitiated with illegality, the way, the right to equality becomes a technical considera- concept of informal pertains more to the activities of the tion of equal implementation of statutory rights, rather than workers and the social context in which they work, rather a socio-political ideal that promotes a socialist polity gua- than the illegal evasion of law by employers. Non coverage ranteed under the Constitution of India. by law does not make an act per se illegal: for example, law does not recognise the work of the home-based care wor- The problem with this narrow technical understanding kers across the globe (except in few jurisdictions); that does of constitutional equality could be aptly articulated through not make home-based care work illegal for sure. the unequal legislative treatment between the formal and informal workers. As I will argue in this article, such a nar- The exclusion of workers from legislative coverage, row juridical understanding of the right to equality stands according to these scholars, is a choice of the legislature, in way of promoting equal treatment of informal workers and the legislature can justifiably exclude certain catego- – who are systematically excluded from specified legisla- ries of workers from certain legislative coverage.4 It would tive rights – vis-à-vis the more privileged industrial formal not be proper to term these excluded workers informal just workers. In the next section, I engage in a brief debate over because some laws are not applicable to them.5 What is the idea of informal workers and how it might be concep- missing from this articulation is the fact that an enormous tualised from a legal point of view. In section 2, elaborating number of workers – mainly in the global South – are sys- the concept of informal through a legal lens, I describe how tematically excluded from all beneficial labour and social informal workers are systematically excluded from legisla- security legislation. And at the same time, whatever work tive purview in India. Such exclusion develops a hierarchy these excluded workers undertake, those have not per se between workers – formal and informal – one receiving le- been determined illegal (by the respective legislatures). gislative coverage and the other do not. I take this inequality between formal and informal workers as a jump off point to discuss the idea of equality under the Indian Constitution as 1 Guy Davidov, “Enforcement Problems in “Informal” Labor Mar- interpreted by the Supreme Court of India (section 3). The kets: A View from Israel”, 27 Comp. Lab. L. & Pol’y. J. (2005-2006) 3; also see Claire La Hovary, “A New International Labour Standard article finishes with a small conclusion section. for Formalising the Informal Economy? A discussion of its desira- bility” in Supriya Routh and Vando Borghi eds., Workers and the Global Informal Economy: Interdisciplinary Perspectives (London: Routledge) [Forthcoming, in file with author]. 2 Davidov, ibid at 5. 3 Ibid. 4 Ibid at 4-5. 5 Ibid.

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They also fail to recognize that there are a range of wor- frameworks, the varieties of economic activities undertaken kers who are not employees in the traditional sense of the in Ghana were novel to Hart. When he termed the activities term.6 There are several ways in which workers engage with of the street vendors, manual workers, and odd jobbers in their work, which falls anywhere between a neat employ- urban Ghana as informal, he had the industry in the UK and ment relationship and an independent self-employment, other industrial capitalist countries as his frame of refe- and oftentimes, defy the orthodox conceptual boundaries rence. According to him, since the Ghanaian economic acti- that lawyers use to understand work-related social pheno- vities did not have a specific form akin to that of the industry menon. I have indicated these varieties of working arrange- model in the industrialised countries, the economic activi- ments elsewhere.7 Failing to account for these conceptual ties were informal.10 subtleties make these scholars err in judging the usefulness of the conceptual domain of informal. Thus, the idea of informal germinates from the concept of form, albeit one specific form. The specific form, on the Even though the idea of informal requires further basis of which the idea of informal developed, is just that – a specifications in order to clarify the several categories of form, or a model. Economic arrangement on the basis of workers covered by the term – particularly for policy for- clearly identifiable employer-employee relationship, based mulation – the idea does serve many useful purposes, on a definite workplace, regulated through determinate particularly in furtherance of policy-making, as I mention rights and duties, and government supervision is a model below. The concept and terminology of informal economic that developed at a specific point of time in the context of activity and consequently informal workers, now popular a specific society. A significant number of economic acti- across the social science literature, was not a legal concept vities then, as well as now, did not and do not conform to in origin. The concept originated through an anthropologi- that model of organisation of work. That model (did not cal study of non-industrial workers in Ghana undertaken and) does not resonate with the experiences of the majo- 8 by Keith Hart. Since the International Labour Organization rity of workers globally today.11 Should we then conclude, (ILO) accepted the concept and used the term in its policy that the idea of informal does not serve any conceptual and reports, it became incumbent to define the term informal consequently, policy purpose? from a legal point of view, if only to analyse whether or not the ILO standards appropriately address such workers.9 But, In spite of the preconceived bias and negativity (i.e., not we need to be mindful that the term had its origin in prima- formal) loaded in the concept, it would be unwise to dis- rily non-legal context. card the idea of informal from academic or policy circles. The idea of informal serves useful purposes. One of the Coming from an industrialised capitalist country, where foremost useful purposes that the concept serves, in fact, the industry was bureaucratically controlled and monitored, relates to its negativity. Rhetorically, when something is and was subject to well-developed legal and institutional determined as not formal or unusual, it carries tremen- dous power of mobilisation. The statement that more than ninety percent of the working population in India is informal 6 Ibid. sounds an alarm. Such rhetoric prompts urgent responses. 7 See Supriya Routh and Vando Borghi, “An Introduction: The Idea The concept of informal is extremely useful in this respect. of Form, Informality, and Aspirations of Workers”, in Routh and Borghi eds., supra note 1 [Forthcoming, in file with author]; also Second, the idea of informal also indicates the gap between see generally Supriya Routh, Enhancing Capabilities through La- the privileged and the precarious workers, an issue we en- bour Law: Informal Workers in India (New York: Routledge, 2014). gage with in this article. Third, the concept projects an ideal 8 Keith Hart, “Informal Income Opportunities and Urban Employ- – a form – to aim for (even though that form itself might ment in Ghana” (1973) 11: 1 The Journal of Modern African Studies 61. 10 9 ILO, Employment, Incomes and Equality – a strategy for increa- Keith Hart, “Bureaucratic form and the informal economy” in sing productive employment in Kenya, Report of an Inter-Agency Basudeb Guha-Khasnobis, Ravi Kanbur & Elinor Ostrom eds, Lin- Team Financed by the United Nations Development Programme king the Formal and Informal Economy Concepts and Policies (New and Organised by the International Labour Office (Geneva: ILO, York: Oxford University Press, 2006) 21 at 22-23. 1972); Guillermo E. Perry et al, eds, Informality: Exit and Exclusion 11 ILO, Women and Men in the Informal Economy: A Statistical Pic- (Washington DC: The World Bank, 2007). ture, 2nd Ed. (Geneva: ILO, 2013).

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need rethinking). Fourth, it offers a language to a move- II - Coverage of Informal Economic Activi- ment, both in its academic and its activist senses. Finally, ties (Informal Workers) under Statutory Le- the concept of informal helps frame broad policy agendas. gal Rights15 In spite of the advantages, the problem with accepting the idea of informal as determinative of public policy is that The Government of India appointed National Commis- the concept hides as much as it reveals. Informal activities sion for Enterprises in the Unorganised Sector (NCEUS) are as diverse as one could think. For example, for a country surveyed the range of labour and social security laws that of India’s span, the heterogeneity of informal activities is are applicable to informal workers in India. The Commis- endless.12 The problem of capturing the varieties of these sion ascertained that the numerous labour laws – enacted activities through the concept of informal is further com- mainly for the formal industrial workers – largely exclude plicated by the fact that even formal undertakings engage informal workers from their purview. The exclusion of in- in informal transactions and relations. For policy purposes, formal workers from legislative protection happens at two then, it is necessary that the veil of informal is lifted and the stages. First, informal workers are largely excluded from heterogeneity of the range of activities is recognised. The beneficial legislation, and second, even when they are cove- idea of informal per se (i.e., without further specification) is red by legislative safeguard, such safeguard does not mate- 16 not appropriately suited for the recognition of this heteroge- rialize because of non-enforcement. neity.13 Additionally, there are other complications with the 14 In its report titled The Challenge of Employment in idea of informal, as I indicated elsewhere. India – An Informal Economy Perspective, the Commission In the following section, I discuss how the idea of in- discusses three of the major labour laws that regulate in- 17 formal could be understood from a legal point of view. In dustrial relations and labour welfare in India. Those are the context of India, informal workers are systematically the Industrial Disputes Act, 1947, Industrial Employment excluded from the purview of the comprehensive beneficial (Standing Orders) Act, 1946, and the Factories Act, 1948. 18 statutes that cover (formal) industrial workers. This dispa- These statutes are meant to protect conditions of service, 19 rity between the formal and the informal – on a legal basis – employment security for formal workers, promote ami- 20 sets the stage for the discussion on the idea of equality un- cable industrial relations in the formal sector, and they der the Constitution of India. In section 3, I will engage with are concerned with factories or industries where employers the discussion on how the idea of equality has developed are mandated to secure workers’ benefits. These Acts are in India and whether it can possibly address the disparity between the formal and informal workers in the country. 15 A different version of this part (i.e., part 2) and part 3 of this article were published earlier in Routh, Enhancing Capabilities, supra note 7. 16 NCEUS, The Challenge of Employment in India – An Informal Economy Perspective, Volume 1 Main Report (New Delhi: NCEUS, 2009) at 180; also see Rohini Hensman, “Labour and Globalization:

12 Union Responses in India” in Paul Bowles & John Harriss eds, Glo- For example, grazing someone’s goats constitutes wage employ- balization and Labour in China and India – Impacts and Responses ment for some informal workers. It is an activity that is generally (New York: Palgrave Macmillan, 2010) 189 at 193-196. outside the policy reference with respect to informality and is club- 17 bed with agricultural activities. See, “70-year-old does three jobs to See generally NCEUS, Challenge of Employment, ibid at 169- support his family”, 17 August 2014, The Hindu, available at http:// 170. www.thehindu.com/news/national/andhra-pradesh/70yearold- 18 See The Factories Act, 1948; also see The Industrial Disputes from-lakshmipuram-village-of-ramannapet-mandal-does-three- Act, 1947. jobs-to-support-his-family/article6324637.ece?homepage=true 19 See The Industrial Disputes Act, 1947, Chapter VA (Lay-off and (site visited 3 October 2015). Retrenchment) and Chapter VB (Special Provisions Relating to Lay- 13 Supriya Routh, “Building Informal Workers Agenda: Imagining off, Retrenchment and Closure in Certain Establishments). ‘Informal Employment’ in Conceptual Resolution of ‘Informality’”, 20 See The Industrial Disputes Act, 1947, Chapter IIB (Grievance 2: 3 Global Labour Journal (2011) 208. Redressal Machinery) and Chapter III (Reference of Disputes to 14 Routh and Borghi, “An Introduction”, supra note 7. Boards, Courts or Tribunals).

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based on the juridical concept of an employment rela- ployers cannot discriminate between men and women wor- tionship between workers and the employer and, as such, kers in hiring or payment, irrespective of the fact that such self-employed own-account workers are excluded from workers are engaged formally or informally.26 Likewise, the the scope of these statutes. Similarly, statutes such as the Commission notes that the bonded labour system, whether Equal Remuneration Act, Contract Labour Act etc. are also employed formally or informally, is abolished under the based on an employment relationship between workers and Bonded Labour System (Abolition) Act, 1976.27 employer.21 With respect to the second group of laws, the Commis- Apart from these major labour laws, the Commission sion observes that the Minimum Wages Act, 1948 specifies divides Central legislation (i.e., the ones enacted by the In- the categories of employment in its Schedule, and deter- dian Parliament) into three groups, based on their applicabi- mines wages for workers engaged in specific activities.28 lity to informal workers.22 The first of these groups contains The categories of employment listed in the Act’s Schedule laws that “apply to all sections of the [informal] sector la- could be modified at any time by the government.29 Since bour” such as the Equal Remuneration Act, 1976, and the the Act lists certain informal economic activities in its Sche- Bonded Labour System (Abolition) Act, 1976.23 The second dule, the Commission groups it under laws that are appli- of these groups consists of “laws which apply to some sec- cable to some sections of informal sector workers. Simi- tions of the [informal] sector labour” such as the Minimum larly, the Commission shows that other legislation grouped Wages Act, 1948, Child Labour (Prohibition and Regulation) under the second category address some sections of infor- Act, 1986, Dangerous Machines (Regulation) Act, 1983, The mal workers.30 However, it is surprising that the Commis- Employment of Manual Scavengers and Construction of Dry sion places the Trade Unions Act, 1926 in this second group Latrines (Prohibition) Act, 1993, Inter-State Migrant Work- of laws instead of the first group because the Trade Unions men (Regulation of Employment and Conditions of Service) Act is one of the very few pieces of legislation that is appli- Act, 1979, Motor Transport Workers Act, 1961, Sales Pro- cable to all formal as well as informal workers. I will specify motion Employees (Conditions of Service) Act, 1976, and the the scope of the Trade Unions Act later in this section. Trade Unions Act, 1926.24 The third of these groups consists of legislation “which can be extended to the [informal] Finally, the Commission lists legislation that could sector” such as the Beedi and Cigar Workers (Conditions be extended to informal workers, even if the laws do not of Employment) Act, 1966, Payment of Wages Act, 1936, specifically address informal workers.31 In this category, The Building and Other Construction Workers (Regulation the Commission lists laws such as the Contract Labour of Employment and Conditions of Service) Act, 1996, the (Regulation and Abolition) Act, 1970, Maternity Benefit Act, Contract Labour (Regulation and Abolition) Act, 1970, The 1961, etc. Under the Contract Labour Act, both the principal Maternity Benefit Act, 1961, Workmen’s Compensation Act, employer (i.e., enterprise or corporation) and the contrac- 1923, and the Weekly Holidays Act, 1942.25 tor employing contract workers for the principal employer (i.e., the middleperson) are responsible to ensure appro- The significance of these three groups of statutes lies priate conditions at work and payment of wages to workers in the nature and extent of their coverage – or exclusion – who they employ.32 Such protection is available to all wor- of informal workers from the statutory scope. For example, with respect to the first of the three groups, the Commission notes that under the Equal Remuneration Act, 1976, em- 26 Ibid at 158. 27 Ibid at 158. 28 Ibid at 158. 21 See generally NCEUS, Report on Conditions of Work and Pro- 29 Minimum Wages Act, 1948, section 27 (Power of State Govern- motion of Livelihoods in the Unorganised Sector, August 2007 (New ment to add to Schedule). Delhi: NCEUS, 2007). 30 NCEUS, Conditions of Work, supra note 21 at 158-160. 22 See generally ibid. 31 Ibid at 161-163. 23 Ibid at 155. 32 Section 20 of the Contract Labour (Regulation and Abolition) Act, 24 Ibid at 155. 1970, mandates that in case of failure of a contractor to provide le- 25 Ibid at 155, 157. gally mandated benefits to contract workers it is the responsibility

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kers, formal or informal.33 Likewise, the Maternity Benefit What follows from the Commission’s review of Indian Act mandates that employers ensure maternity benefits to labour laws is that labour laws in India are biased towards women workers formally or informally employed.34 Even formal workers employed in an industry. Even though it is though these statutes are applicable to establishments possible to argue that some of these laws address some employing a specified minimum number of workers (ten or informal workers, the majority of the statutes are not de- twenty), the government, by order, can extend these statu- signed for them. Many of the Acts mentioned earlier have tory requirements to any group of formal or informal wor- a numerical threshold for their applicability; they apply to kers.35 an industry where at least twenty workers are employed (ten workers if electricity is used, and five workers for the Most of the legislation surveyed in that NCEUS Report applicability of the Migrant Workmen Act, and the Motor excludes self-employed own-account informal workers. By Transport Workers Act).39 Therefore, even though it is pos- contrast, laws such as the Trade Unions Act, 1926, apply to sible to argue that some of the labour laws are applicable both formal and informal workers (including self-employed to informal workers who are in an employment relationship informal workers), even though there are indications that (or disguised employment relationship), once the legisla- this legislation is also biased towards formal workers.36 tive threshold is set for industries employing at least ten or Additionally, the NCEUS also documents the “abysmally twenty workers, approximately ninety percent of the total poor” implementation of labour laws in India.37 The small workforce remains outside such legislative protection.40 size of labour administration personnel, the exclusive focus on the formal sector, the inadequacy of infrastructure, and In view of this enormous exclusion of informal workers the lack of representative voices for informal workers are from statutory coverage, the Supreme Court of India did factors responsible for poor enforcement of labour law.38 make some piecemeal efforts in narrowing the legislative gap between formal and informal workers. In Bangalore Water Supply & Sewerage Board, v. A. Rajappa and Others,41 the Supreme Court broadened the scope of the Industrial of the principal employer to provide those benefits to such workers. Disputes Act, so that the statute could cover even very 33 According to section 1 (4) of the Contract Labour (Regulation and small establishments engaging small number of workers. Abolition) Act, 1970, the statue is applicable to all establishments This interpretation, in effect, covers some workers who are where twenty or more workers are employed, and all employers otherwise left outside the scope of other statutory rights. (contractors) who employs twenty or more workers. Following the Court’s interpretation, it could, perhaps, be 34 According to section 2 of the Maternity Benefit Act, 1961, the argued that informal waged workers – working in all esta- statute is applicable to every factory, mine or plantation, and to any blishments (i.e., irrespective of the size of the establish- other establishment employing at least ten workers. ment) – should be covered under the Industrial Disputes 35 See section 31 (Power to exempt in special cases) of the Contract Act. Likewise, the Supreme Court and some of the High Labour (Regulation and Abolition) Act, 1970, and section 2(1) Pro- 42 viso (Application of Act) of the Maternity Benefit Act, 1961. Courts have held that the expression “employees” in the 36 See the Trade Unions Act, 1926. It defines a trade union as “any combination ... formed ... for the purpose of regulating the relations 39 between workmen and employers or between workmen and work- See NCEUS, Challenge of Employment, supra note 16 at 178- men, or between employers and employers…” See section 2 (h). 180. The Act defines a trade dispute as “any dispute between employers 40 Ibid at 180. However, in 2008, the Indian Parliament enacted and workmen or between workmen and workmen, or between em- the Unorganised Sector Social Security Act, 2008, in order to offer ployers and employers which is connected with the employment or social security to informal workers. While it is too early to ana- non-employment, or the terms of employment or the conditions of lyse the effectiveness of the 2008 law, some scholars have already labour, of any person … .” See section 2 (g). Both of these defini- expressed their concerns about the success of the law. See gene- tions are centred on employment relationship and waged workers. rally Kamala Sankaran, “Informal Employment and the Challenges However, there is scope to argue that the Act is applicable to self- for Labour Law” in Guy Davidov & Brian Langille eds, The Idea of employed informal workers as well. Labour Law (Oxford & New York: Oxford University press, 2011) 223; 37 NCEUS, Conditions of Work, supra note 21 at 164-171; also see also see Hensman, supra note 16. NCEUS, Challenge of Employment, supra note 16 at 186-187. 41 (1978) MANU 0257 (SC). 38 NCEUS, Conditions of Work, ibid at 166-167. 42 See Section 2(9) of the Employee’s State Insurance Act, 1948.

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Employee’s State Insurance Act, 1948 is wide enough to in- laws in India have largely failed to protect informal workers’ clude casual and temporary workers such as canteen wor- interests, and promote their dignified life, which is a consti- kers or bicycle-stand operators, even if such workers are tutional goal.48 This failure creates a hierarchy between employed for only a day.43 However, the Employee’s State informal and formal workers – one group excluded from all Insurance Act is applicable to establishments employing at effective means of legislative safeguard and the other group least ten workers.44 enjoys a broad range of legally secured rights. Thus, even though it is possible to argue that informal This unequal treatment is inimical to the express goals waged workers45 could be brought within the purview of of the Indian Constitution. The Indian Constitution is based some of the major labour welfare legislation in India, the on the ideal of equality, secured as a fundamental right to NCEUS demonstrates that enforcement of these Acts effec- all persons. However, the Constitutional idea of equality has tively excludes the majority of informal workers. Moreover, traditionally been understood in a narrow sense by the judi- these laws ignore self-employed informal workers, who ciary. This narrower understanding of equality, as I will dis- are significant in number.46 Under these circumstances, the cuss in the next section, is an obstacle in promoting equal Indian labour law scholar Kamala Sankaran concludes that treatment of formal and informal workers. Indian labour laws exclude informal workers on the basis of numerical thresholds, functional criteria, and wage ceiling criteria.47 Thus, the existing labour and social protection 3 - The Juridical Notion of Equality in India and Informal Workers

43 See Royal Talkies, Hyderabad v. Employees State Insurance Cor- Informal workers suffer from systematic deprivations poration, (1978) MANU 0282 (SC); Siddheswar, Hubli v. ESI, 1998 in part because of the juridical nature of constitutional la- Lab. I.C. 212 (Orissa); Regional Director, Employees State Insu- bour welfare guarantees. Even though the Supreme Court rance Corporation v. Suvarna Saw Mills, 1979 Lab. I.C. 1335 (Kar- has taken progressive steps, such as upholding informal nataka). street vendors’ fundamental right to carry on their econo- 44 See section 1 (Short title, extent, commencement and applica- mic activity, judicial remedies remain far too inadequate in tion) and section 2 (12) (Definitions) of the Employee’s State Insu- addressing the overall human dignity concerns of informal rance Act, 1948. Prior to the Employees’ State Insurance (Amend- workers in India. Apart from upholding informal workers’ ment) Act, 2010, the statute was applicable to establishments right to livelihood and freedom of trade in certain parts employing ten or more workers if electricity was used, or twenty or more workers if electricity was not used (in the particular esta- of the country, the judiciary has been unable to promote blishment). constitutional welfare guarantees for informal workers as 49 45 A clarification is in order here. Waged workers are sure em- a class. ployees; but they are informal employees in the sense that these The Supreme Court of India noted that equality in mat- workers are not formally monitored or legislatively safeguarded. ters of an adequate means of livelihood is still a distant For example, tiny roadside eating places and street vendors in dream for an alarming percentage of population in India, many countries in the Global South employ workers by words of 50 mouth (without any documentation or any records, or acknowled- who live below the poverty line. It is mainly informal wor- gement of an employment contract); these workers are oftentimes paid much less than minimum wages and are generally excluded from legally secured welfare guarantees. In this “exclusion” sense nomy: The Role of Labour law” in Guy Davidov & Brian Langille these workers are “informal”, but they are really employees em- eds, Boundaries and Frontiers of Labour Law (Portland: Hart Pu- ployed by someone else. blishing, 2006) 205 at 206-207. 48 46 See Barbara Harriss-White, “Globalization, the Financial Cri- Francis Coralie v. Union Territory of Delhi, (1981) MANU 0517 sis and Petty Commodity Production in India’s Socially Regulated (SC). Informal Economy” in Bowles & Harriss eds, supra note 16, 131 at 49 I use “class” as synonymous with “group”, rather than to sug- 134; also see Kalyan Sanyal & Rajesh Bhattacharya, “Beyond the gest a distinction from an employer class. My choice of the expres- Factory: Globalization, Informalization of Production and the Chan- sion “class” is based on the Equality Clause of the Constitution of ging Locations of Labour” in Bowles & Harriss eds, supra note 16, India (Article 14), which permits justifiable classification and class 151 at 152, 158, 160. legislation (discussed presently). 47 Kamala Sankaran, “Protecting the Worker in the Informal Eco- 50 See Sodan Singh v. New Delhi Municipal Committee, (1989)

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kers who live below the poverty line in India. Informal wor- from people differently situated. Any such classifications kers have failed to receive equal treatment to that of their must have a nexus to the purpose sought to be achieved formal counterparts from the government(s) in India so far through legislation.55 as protection and promotion of their means of livelihood are concerned. As a class, informal workers suffer from The Supreme Court laid down conditions for reasonable multiple deprivations compared to formal workers in India. classification in State of West Bengal v. Anwar Ali Sarkar:56 There are more than one hundred pieces of (Central, and • such classification “must be founded on an intel- State) labour welfare legislations in force in the country, ligible differentia which distinguishes” persons or mostly targeted towards formal workers. Formal workers things “that are grouped together from others” left receive comprehensive benefits ranging from employees’ out of the group, and state insurance to maternity benefits under a plethora of labour welfare statutes. Informal workers, on the other hand, • the “differentia must have a rational relation to mostly remain excluded from the scope of these laws. Such the object sought to be achieved” by the statute in inequality between informal and formal workers exists in question.57 spite of the fact that the right to equality is a fundamental What should ideally follow from these conditions is that right under Article 14 of the Constitution. all persons under similar circumstances should receive equal protection from laws.58 Which, in the context of our Article 14 of the Constitution of India states: “The State study, ought to signify that both classes of workers – formal shall not deny to any person equality before the law or the and informal – since they altogether constitute the working equal protection of the laws within the territory of India.” class contributing to the societal development and suste- Thus, the fundamental right to equality, available to any nance, receive similar level of legislative safeguard. Howe- person living in India, is expressed in two ways forming a ver, Courts in India determine the concept of reasonable corollary to each other.51 The first part of the provision reads classification within a very narrow range that is based on that the state shall not deny to any person equality before technical considerations pertaining to an impugned legisla- the law, suggesting a negative burden of non-interference, tion.59 The principle of reasonable classification is relevant while the second part of the Article reads that the state only to judge the constitutionality of an existing legislation. shall not deny to any person equal protection of the laws, The classification is, then, subject to a legislative scheme imposing a positive responsibility on the state to protect already existing – it is not instrumental in envisaging a new all persons equally.52 The positive responsibility imposed legal order. on the state is reinforced by Articles 15 and 16, which call upon the state to make “special provision for the advance- Therefore, even if informal workers are unequally trea- ment of any socially and educationally backward classes of ted in comparison to formal workers as far as employment, 53 citizens”. Further, Article 14 envisages a “classless ega- working conditions, and social protection are concerned, litarian socio-economic order”.54 For the promotion of the right to equality, the state may undertake reasonable classification systems distinguishing people similarly situated 55 St. Stephen’s College v. The University of Delhi, (1991) MANU 0319 (SC) at para 103. 56 (1952) MANU 0033 (SC) at para 58. MANU 0521 (SC). 57 Also see Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar, 51 State of West Bengal v. Anwar Ali Sarkar, (1952) MANU 0033 (1958) MANU 0024 (SC) at paras 13, 16. (SC) at para 8. 58 State of West Bengal, (1952) MANU 0033 at paras 25, 38, 45, 47, 52 th See M P Singh, V.N. Shukla Constitution of India, 10 Edition 58. (Lucknow: Eastern Book Company, 2001) at 37; also see O. Chin- 59 nappa Reddy, The Court and the Constitution of India – Summits See K. Kunhikoman v. State of Kerala, (1961) MANU 0095 (SC), and Shallows (New Delhi: Oxford University Press, 2010) at 85-86. for a debate on classification between rubber, tea, and coffee plantation owners on one hand, and pepper and areca plantation 53 See Article 15(4) of the Constitution of India; also see Reddy, owners on the other; also see (1959) S.C.R. 629, for a classification ibid. between butchers who slaughter cattle on one hand, and butchers 54 See M. Chhaganlal v. Greater Bombay Municipality, (1974) MANU who slaughter sheep or goats (on usefulness of different animals 0052 (SC) at para 32. to society).

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it would be very difficult to enforce their right to equality tive of the technical details or designation of employees, through the judiciary in absence of a (beneficial) legislative flows from Article 14. Further, inthe State of Utter Pradesh scheme. The principle of reasonable classification, deve- v. J.P. Chaurasia64 the Supreme Court noted: loped to facilitate the fundamental right to equality, would In matters of employment the government of socialist be of no help in dealing with such unequal treatment. The State must protect the weaker sections. It must be ensured approach of the judiciary in India indicates that they might that there is no exploitation of poor and ignorant. It is the be able to judge inequality between one group of informal duty of the State to see that the underprivileged or weaker workers and another when they already possess legally sections get their due. Even if they have voluntarily accep- guaranteed rights, but when they do not possess such legal ted the employment on unequal terms, the State should not rights, the judiciary is unwilling to promote constitutional deny their basic rights of equal treatment. labour guarantees for informal workers.60 In this context, Justice Chinnappa Reddy, a former judge of the Supreme Thus, even though the judiciary has been concerned Court, argues that the Indian Supreme Court wrongly per- with the exploitation of workers who are compelled to work ceived that by merely laying down the principle of reaso- on unequal terms, the judiciary can play only a very limited nable classification the Court is able to secure the funda- role in improving the lot of vulnerable workers. This is be- 61 mental right to equality of Indian masses. Justice Reddy cause the judiciary has developed the idea of reasonable asserts that real equality “requires and provides for the classification in order to realise constitutional equality establishment of a just society in which no one is hungry or through a narrow frame of reference. In Anwar Ali Sarkar, despised or deprived of the decencies and amenities of life, the Supreme Court essentially said that the idea of right and all men are free from insecurity and oppression and are to equality is legislation-specific. Which means that when 62 allowed to enjoy the plenitude of life.” Such a fundamental a statute seeks to achieve a specific objective, the equality understanding of equality is missing from the Indian judi- principle would act as a watchdog and prohibit discrimina- ciary’s approach towards informal workers, even though the tory treatment amongst groups of people, so far as (only) judiciary has promoted equality amongst formal workers, that specific objective is concerned. albeit within the narrow juridical framework of reasonable classification, that is, only when the formal workers’ rights Thus, the test of reasonable classification is of limited are secured under a legislative scheme. application so far as substantive equality is concerned. While the Supreme Court devised this as a uniform test – to For example, in striking down a law on unequal pay, the be applied across all statutory initiatives – in judging statu- Supreme Court in the State of Madhya Pradesh v. Pramod tory compliance to constitutional equality, its narrow scope Bhartiya63 declared that equal pay for equal work, irrespec- ties the test to individual statutes. By so doing the judiciary unduly limits the scope of the constitutional equality as only 60 It should be noted here that the judiciary may be unwilling, but, requiring that there shall not be any discrimination amongst is not unable to develop beneficial guarantees for people/workers. the addressees of a statute. This narrow lens to conceptua- The case of Vishaka v. State of Rajastan, (1997) MANU 0786 (SC), lise equality bypasses the concerns pertaining to unequal is a case on the point (discussed presently). The Constitution of treatment of informal workers just because they are largely India delineates labour rights for all workers. Some of the pro- not addressees of statutory enactments. minent constitutional labour rights are: rights to assembly, union formation, movement, vocation (Article 19); protection from forced One way of seeing this development of the equality labour (Article 23); prohibition on employment of children (Article principle under the Indian constitution is that the principle 24); right to work (Article 41); adequate means of livelihood (Article 39); equality of wages (Article 38, 39); adequate protection of wor- is extremely narrow in its conceptualisation. However, from kers (Article 39); provision for living wage (Article 42); appropriate another point of view, one could imagine that the judiciary is conditions of work (Article 42); maternity relief (Article 42); assis- hesitant in interfering in policy-issues in spite of its concern tance during old age and unemployment (Article 41); and workers for the stark inequality characterising the Indian society participation in management (Article 43-A). generally (as manifested in the observation in the J.P. Chau- 61 See Reddy, supra note 52 at 89-95. 62 See ibid at 90. 63 See generally (1993) MANU 0060 (SC). 64 (1988) MANU 0502 (SC) at para 29.

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rasia case mentioned above).What follows from this second point of view is that the judiciary understands the inequality between formal and informal as public policy issues, and therefore exercises self-restrain in developing equal legal rights for informal workers, thereby deeming it fit to leave it to the parliament to address the issue. This way of understanding the judicial interpretation of the equality principle, however, faces challenge in view of the decisions such as Vishaka v. State of Rajastan, where in absence of legislative safeguard the Supreme Court developed a comprehensive sexual harassment principle, thereby, essentially making laws for working women. It might be difficult to determine with certainty as towhy the judiciary developed such a narrow understanding of the equality principle. A probable explanation seems to be that the judiciary comprehends the equality principle as a political goal, and therefore, to be politically pursued either through the government or the legislature. However, the real problem, particularly in the context of informal workers, is that such judicial concern has not percolated through the government or to the legislature. The abovementioned observation of the Supreme Court (in the State of Utter Pradesh v. J.P. Chaurasia) urges the government and the state to improve conditions of workers who are at a disadvantageous bargaining position.

Conclusion

In spite of the fact that informal workers suffer from vulnerability and marginalization when their formal counterparts enjoy comprehensive labour welfare guarantees, informal workers who are in dire need of legislative protection have not received equal treatment with their formal counterparts for the matter of legislative protection. By analysing labour laws in India, I show that informal workers are mostly left out of the country’s legislative framework. It is only very recently that the government and the legislature have become active in order to promote social protection for informal workers. In absence of legal rights guaranteed through legislative initiatives, the equality principle in the Constitution of India – as understood by the judiciary – is per se unable to address the unequal treatment of informal workers vis-à-vis the formal workers. The judiciary, seemingly, seeks to leave political ideals of equality to the political process itself, whereby specific inequalities could be debated and addressed. But, so far, the political process has been disappointing for informal workers.

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85 DOMINIQUE MEURS Professor, University of Paris Ouest - Nanterre La Défense, Researcher at EconomiX (CNRS UMR 7235) and Associate researcher at INED. Research themes: Labour market, Gender inequalities, Discrimination, Econometrics. Publications: ~ « Estimating Gender Differences in Access to Jobs », Journal of Labor Economics, vol 33 (2), 2015, pp 317-363 (with Laurent Gobillon and Sébastien Roux). ~ « Gender inequality », chapter in « Handbook of Income Distribution » (ed. F. Bourgui- gnon and A. Atkinson), Elsevier, Vol. 2. p. 981-1146, 2015, (with Sophie Ponthieux).

Measuring discriminations: economists’ approaches

abstract Measuring discrimination has been an economic issue since the seventies. Basically the methodology requires to define the group “at risk” (women, immigrants), then to measure the extent of the inequality (unemployment, wage) between this group and the reference group. A part of this inequality may be explained by the individual characteristics. The “unexplained” part is considered as a proxy of the extent of the discrimination..

key words : Inequalities, Discrimination, Methods, Statistical Measures, Categories.

résumé La mesure de la discrimination est un thème développé depuis les années 70 en économie. Les techniques employées reposent sur l'identification de groupes à risque (femmes, immigrés), puis la mesure des iné- galités entre ce groupe et un groupe de référence, enfin le partage entre ce qui peut être expliqué par les caractéristiques individuelles et ce qui reste inexpliqué. Cette dernière partie est un indicateur de l’ampleur de la discrimination. mots clés : Inégalites, Discrimination, Méthodes, Mesures, Catégories.

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alled to the bar in a court in the United hin that difference, what is explicable and what is not.2 The States during the trial of a company accused unexplained part then corresponds to an indicator of the of wage discrimination towards women, scale of the discrimination when all the other explanations Professor Ronald Oaxaca1 was told by the have been dismissed. judge: “The problem with you, Professor, Cis that you do not understand anything about the law”. To In this article we present a summary of these two steps which he replied, “and the problem with you, Mr Judge, is in the reasoning. We start first of all by showing how the that you do not understand anything about econometrics”. construction of the “at risk” and “reference” groups can This - true - anecdote reflects the difficulty jurists have in turn out to be difficult depending on the criterion used (I). appropriating the way the statistician-economist will dia- Then we will review the different methods, which are more gnose a discriminatory situation and, conversely, the diffi- complementary than competing, used by economist statisti- culty the economist has in grasping legal reasoning. This is cians to test the existence or not of a form of discrimination less to do with mathematical complexity than the way the (II). Our examples will be drawn from the labour market; we analysis is constructed. will leave aside possible discrimination in access to housing, healthcare or credit, in education, consumption, etc. For the economist, discrimination is suspected when statistically there is a discrepancy in a situation (pay level, likelihood of employment, likelihood of obtaining a loan, I - Defining the at-risk groups housing…) between two groups that differ only in one characteristic (sex, origin, religion…). The economist’s pres- To diagnose the scale of the discrimination, it is not upposition is that individuals are all different, more or less enough to record complaints and determine whether a given effective, more or less talented at one activity or another, individual has been refused a job, housing, etc. due to his or and that explains that remuneration and employment are her physical appearance, sex, etc., but to establish whether not the same from one person to another, but there is no it is an isolated case or if the group the person belongs to is reason for the distribution of innate talents to differ from more exposed on average than another to these situations. one group to the other. In other words, the problem is not In other words, it is necessary to be able to link the number that one woman in particular receives a lower salary than a of cases recorded to a denominator (the number of “at risk” man, nor that one black person taken at random is unem- cases) to get an idea of the frequency of these events. ployed: there is only a problem if the results obtained by a The first phase in the economist’s job therefore consists group (the average salary, the unemployment rate, access of constructing the groups that are going to be compared. to housing…) are systematically lower in one group. To go The basis of the reasoning will draw on a long list of dis- from an observation of average inequalities to the measure- crimination criteria to determine the “at-risk” populations ment of discrimination, it is therefore necessary to be able (here as formulated for France): sex, origin, pregnancy, empirically to constitute two groups that are comparable family situation, physical appearance, name, place of resi- from the point of view of the subject in question (access to dence, state of health, disability, genetic characteristics, employment, remuneration, promotion…) and whose diffe- lifestyle, sexual orientation, age, political opinion, trade rences (sex, origin, religion…) cannot have a direct influence union activity, belonging or not belonging, actual or sup- on the observed situations. posed, to an ethnic group, race, religion, belonging or not The methods for measuring discrimination therefore belonging, actual or supposed, to a nation. all fundamentally rest on a two-step process: defining the at-risk groups and the comparison group: calculating an average difference in a situation and distinguishing, wit-

2 E. Delattre, N. Leandri, D. Meurs, R. Rathelot, «Trois approches de la discrimination : évaluations indirectes, expérimentation, dis- 1 The reference on the measurement of discrimination for econo- criminations ressenties», Économie et Statistique, 2014, N° 464- mists. 465-466.

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For some criteria, the statistical construction of the der 5% of the population of working age. If we want to find group and its identification in the data is simple. Practically a sample of 2,000 people to carry out quite a detailed statis- all files enable people to be distinguished according to sex tical analysis, we need to obtain data for 40,000 people all and place of residence. Other criteria such as origin, sexual over France. For a postal or internet survey, the response orientation, political opinion, physical appearance, etc. are rate is 20% at the very most, which means that 200,000 much more complicated to observe statistically, and recor- letters or e-mails need to be sent out to get an exploitable ding practices may vary from one country to another. statistical sample.

Let us take, for example, the question of ethnic origin It is sometimes possible to rely on a combination of (actual or supposed), which in France is often reduced to a variables available in a public database to identify a group confused debate on ethnic statistics. In the United States, potentially at risk. For example, for the risk of pay discrimi- 6 due to the country’s specific history, it is standard practice nation concerning homosexuals, T. Laurent and F. Mihoubi to record this individual characteristic in censuses, with started with the INSEE (national statistics office) employ- questions that have evolved over time, but which enable ment survey (some 70,000 households questioned) and sophisticated statistical tables to be drawn up that can sur- identified the homosexual couples based on the household prise French readers. For example, the census website3 composition table (information on the sex of cohabitants provides data with cross-referencing according to origin defining each other as “friends” and it is possible to make (Hispanic or not) and “race”,4 with the following nomen- a reasonable distinction between flatmates and couples clature: white, black, Asian, American Indian and Alaska by means of filter questions). A dual limit on their study is native, Hawaiian and Pacific island native, or two races or that by construction it concerns couples (and not all homo- more (using the same categories as above). In the case of sexuals) and that it is impossible to know whether or not France, the subject remains largely taboo, although resear- their sexual orientation is known at their place of work. chers can conduct surveys on these themes as long as they They find that male homosexuals are penalised, earning respect the individuals’ anonymity and obtain the authori- about 6% less than other men, but that homosexual women sation of the CNIL on the sensitive questions. As a result, are not (compared to other women). the statistical approach to discrimination according to ori- Finally, certain criteria are relatively easy to observe, gin most often involves questions concerning the individual but raise the question of the choice of the comparison and his or her parents, with questions concentrating on the group, for example age or disability. In fact, age and disabi- place of birth and nationality of the person and both of his lity modify people’s competence, positively (experience for or her parents.5 Place of birth and nationality, it should be age, development of other abilities for disability) or negati- remembered, are not sensitive questions. vely, compared to younger or non-disabled people. For other criteria such as sexual orientation, religion, etc., the simplest way is to conduct specific surveys. The II - Presentation of different methods problem is the cost of collecting the information: the more restricted the number of people concerned by a criterion, A - Use of testing by correspondence the larger the population survey needs to be to reach an at- risk subgroup big enough to carry out a serious statistical To resolve the issue of comparing the situations of “two analysis. To give an idea of the problem with some concrete persons identical in all respects but one”, one possibility is figures, let us start with the example of descendants of testing by correspondence. For example, when companies North African immigrants. Approximately, these form un- are suspected of discrimination in their recruitment and of preferring men to women or nationals to foreign candi- 3 http://www.consus.gov dates, this consists of putting together pairs of fictional CVs, with identical professional characteristics (education, expe- 4 The term is in common usage in the English-speaking world, without any pejorative connotations. 5 P. Simon, «The Choice of Ignorance: The Debate on Ethnic and 6 T. Laurent, F. Mihoubi, «Orientation sexuelle et écart de salaire Racial Statistics in France”, in Social Statistics and Ethnic Diversity, sur le marché du travail français : une identification indirecte», Springer International Publishing, 2015, p. 65-87. Économie et Statistique, 2013, N°464-465-466.

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rience), but differing on just one criterion: sex, nationality, In France, testing has begun to be widely used, in par- place of residence, etc. A large number of CVs are sent in ticular since Petit’s work on the recruitment of women in response to the job offers in a city, sector, etc., and the dif- banks.8 We can therefore cite some recent work on discri- ference is measured in the number of people called to inter- mination in the hiring of young people in the suburban area view according to the characteristic observed. To be precise, of Paris, which was also original in that it combined two we look at what happened to each “pair”: either both were dimensions: the gender effect and the origin effect (French, selected, both were rejected or one was taken and the other North African, Sub-Saharan African and Asian). The scope not. The results are then added up and we obtain the res- was a qualified, in-demand profession, IT specialists with 5 pective proportion of candidates selected according to the years of higher education. The researchers sent out 2,424 criterion chosen. If the test is well constructed, the simple job applications in response to 303 job offers in 2009, using difference in the average (if it is statistically different to 8 different profiles. They observed high levels of hiring dis- zero) indicates that the companies have preferred one type crimination according to both gender and origin.9 of candidate to another. B - Using controlled and natural experiments The difficulty in conducting testing essentially lies in the quality of the procedure and the construction of pairs One of the limits of testing by correspondence lies in of CVs that are similar but different enough for the recruiter the method itself: the CVs used are by construction arti- not to be able to detect the test being carried. To differen- ficial and cannot reflect the characteristics of the studied tiate between CVs whilst guaranteeing their equivalence, population. For example, if we want to look at the risk of a researchers work on the fonts, variations in hobbies (fin- woman being recruited as a bus driver compared to a man, ding activities that are different, but that reveal the same we will produce as many CVs of women with the right dri- character traits), the layout of the sections, etc., always with ving licence as we do men’s CVs. In actual fact though, there the risk that these small personalisations will affect the im- are substantially fewer women with this skill, and if the test pression made on the recruiter and distort the final result. does enable the employer’s attitude to similar applications One famous example of testing was conducted by Bertrand to be identified, it does not reflect the real situation of the 7 and Mulhainatan on the recruitment of blacks compared job market. And yet, the latter may influence the employer’s to whites in Chicago and Boston. A first difficulty for them attitude: for example, knowing that there are few female was to construct a database of false CVs whose fictitious candidates generally, the employer may have a tendency to surnames and first names unambiguously indicated skin interview more of them, even if they had had a preference colour to the recruiter. To do this, they used the civil sta- for male applicants, in a situation where there were as many tus registers to get the declared race associated with the female applicants as men. surnames/first names (using the nomenclature described above), kept the most common ones, then tested the cor- Controlled experiments have the advantage over tes- respondence between this identity and skin colour with a ting of using real situations. The principle is inspired by panel of individuals. For the test they used only the names double blind experiments in science. The same group will for which there was no error of attribution. In this complex pass through two different procedures, one of which is sup- procedure we see “ethnic” nomenclatures being used for posed to avoid discrimination. If the success rates of two the purpose of identifying racial discrimination. Then, the groups differ (women vs men, descendants of immigrants responses to the CVs sent in pairs were recorded individual- vs descendants of parents born in France), discriminatory ly. They found that the “white” CVs sent out gave rise to 50% behaviour will be suspected. A natural experiment is like more invitations to interview than the “black” CVs. As the CVs were alike in every way, the test led to the conclusion that companies in the two cities were discriminating. 8 P. Petit, “The effects of age and family constraints on gender hiring discrimination: A field experiment in the French financial sector”, Labour Economics, vol. 14, n° 3, 2007, p. 371-391. 7 M. Bertrand, S. Mullainathan, «Are Emily and Greg more em- 9 P. Petit, E. Duguet, Y. L’Horty, L. du Parquet, F. Sari F., «Discri- ployable than Lakisha and Jamal? A field experiment on labor mar- mination à l’embauche : les effets du genre et de l’origine se cu- ket discrimination», The American Economic Review, vol. 94, n° 4 , mulent-t-ils systématiquement ? «, Économie et Statistique, 2013, 2004, p. 991-1013. N°464-465-466, .

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a controlled experiment, except that the variation in proce- result concerned applicants with immigrant parents, as the dure is not artificial, but the result of a change in the rules anonymous CV reduced their chances of being selected. A or the law. possible interpretation of this paradoxical result would be that the negative signals in these CVs (periods of unemploy- The example of the recruitment of musicians to Ame- ment) were interpreted less negatively when the recruiters rican symphony orchestras is one of the most famous ex- were able to connect them with the known difficulties of the ploitations of a variation in recruitment procedure.10 In the second generation on the job market.11 nineteen fifties and sixties, women represented only a very limited proportion (about 10%) of the musicians in the most C - Comparing situations “all other things famous symphony orchestras and recruitment was mainly being equal” in the economy by co-optation. Gradually, orchestras began to feel the need to move on from this practice and open recruitment Testing, auditing or experiments all have their limits up more widely to have a wider choice of talents. To do this, when it comes to measuring discrimination. Although they introduced the practice of blind auditions (behind a they can give a precise and direct diagnosis of employers’ screen in the first rounds at least) to select the candidates; attitudes, they apply only to the scope of the case studied. in this way, no information on the musician’s individual Furthermore, they cannot be applied to all discriminatory characteristics, including sex, was known to the panel and situations: it is impossible to test wage discrimination or only musical performance made the difference between the inequalities in promotion using these techniques. The ap- applicants. Goldin and Rouse used this change over time proach most generally adopted by economists is by nature in the same orchestras to identify the specific effect of this indirect, and is closest to a “devil’s advocate” type of ap- procedure. They showed that this method significantly in- proach: once all the potential causes that could generate creased the proportion of women present in the last stage inequality between two groups have been removed, what of the selection process. According to their estimates, a remains unexplained is considered as probably being dis- quarter of the increase in the number of female orchestra crimination. This enormous body of literature starts with players, which is now in the order of 30 to 40% of these for- databases of raw individual data (on the entire population, mations, resulted from this change in practice. for one sector or one company…), then estimates whether there is on average a salary disadvantage or lower chance of An experiment performed in France in 2010 on ano- being promoted for an individual belonging to a given group. nymous CVs by a group of researchers working with Pôle Emploi (the state job centre) is similar to the method used The difficulty lies in constructing an “all other things for orchestras. The experiment consisted of sending ge- being equal” indicator, that is to say a comparison between nuine CVs in response to a homogeneous set of job adver- two magnitudes that neutralises the structural effects. For tisements handled by the ANPE (state employment agen- example, let us imagine a very simple situation where for cy), with the responses to the job offers being divided into the same job, there are 10 women and 10 men, of the same two groups equivalent in terms of quality: the anonymous age, with the same length of service, and that the women’s CVs and the conventional ones with the surname and first average pay is €700 and that of the men is €1,400. If we add name. The companies were warned that they might receive in the fact that men work 35 hours a week and women 17.5 some anonymous CVs. In all cases (anonymous or not), the hours a week, we can say that the hourly rate of men and ANPE acted as the compulsory intermediary between the women is strictly the same and that there is therefore no company and the applicant. Concerning women, the ano- wage discrimination. But now let us suppose that the com- nymous CV compared to the complete CV had the effect pany does not offer full-time work to women and that they of significantly increasing the number of interviews offe- therefore only have the possibility of working part time, red to women when the recruiter was a man, but the op- whereas some of them would like to work full time. Strictly posite occurred when it was a woman. The most striking speaking there is no pay gap, and yet there is discrimination.

10 C. Goldin, C. Rouse, «Orchestrating Impartiality: The Impact of 11 L. Behaghel, B. Crépon, T. Le Barbanchon, «Impact evaluation «Blind» Auditions on Female Musicians», The American Economic of Anonymous CVs», PSE Working Papers, halshs-00754921, HAL Review, vol. 90, n° 4, 2000, p. 715-741. (2011).

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If, on the contrary, only women wishing to work part time for economy), the structural characteristics used in the analy- family reasons apply for the jobs, then we can no longer say sis, the way pay is measured (hourly, monthly or annual), the that there is discrimination, even though the inequality in inclusion or otherwise of part-time workers or unworked remuneration is the same. This artificial example highlights periods when the comparison concerns annual pay, the ta- the need to clearly distinguish what separates the observa- king into account or not of selection bias. It is therefore not tion of an inequality from a diagnosis of discrimination. This surprising that there is no “one” single figure, but a range also shows that the analysis of an inequality, whatever its of measurements of pay discrimination. nature, cannot be done without thinking about what is “fair” and what is not. In other words, measuring discrimination The second risk is that of "putting too much in". Indeed, requires an analysis grid on what is a justified inequality and the more factors taken into consideration, the more capable what is not “normal”. we are of explaining a large part of the differential. But it is quite possible that, in doing so, we are adding in variables In this simplified example, the only factor taken into that result partly or wholly from discrimination. An example consideration was the number of hours worked. In real taken from a real case illustrates this point: Walmart, a situations, many other structural differences can explain supermarket chain in the United States, faced a lawsuit the observed differences in pay or promotion. And so, to remain 1980s in a class action for a lack of equality in promotion: with the example of the pay gap between men and women, women made up 47% of the bottom two levels in the hie- the two populations differ in their level of qualification, type rarchy (paid at the union rate), but 0% at the sixth and last of qualification, professional experience, etc. They do not level (and 5% at the next to the last level). There was no dif- work in the same sectors or the same companies, don't ference in pay between equal positions: the jobs were unio- have the same jobs and do not have the same responsibi- nised, there was a single hourly rate attached to each job, lities. An econometric method that has become standard whatever the employee’s sex. The union checked that the for estimating the scale of the unexplained part of the pay wages paid were in fact those fixed by the agreement, but gap is the one developed the same year, but separately, by was not involved in job assignment and promotion policy. R. Oaxaca12 and A. Blinder.13 It consists of breaking down When the pay gap was measured taking account of the dif- the average pay gap observed between two groups into two ferences in the structure of the jobs occupied, the pay dif- components: an “explained” part, that is to say a part attri- ferential between men and women was entirely explained. butable to structural effects (education, experience…) and a The company therefore believed it could not be accused part not attributable to structural effects, equal to the dif- of pay discrimination. But, at the trial, it did not manage ference between the total gap and the explained part. This to convince the judges that the scarcity of women in the latter component indicates potential discrimination, subject highest echelons of the company was due to their refusal to all relevant factors having been taken into account. to take these positions because of the heavier workload and more demanding working hours, and not the company’s po- This method, widely used in the economic literature, licies. The lawyers were able to produce proof that women includes two symmetrical risks. The first is the risk of omit- who were absolutely eligible had applied for promotion and ting variables that would explain these differences without had not been selected. Walmart therefore lost its case in constituting wage discrimination in the strict sense. For 1984, its method of assigning staff to different hierarchical example, in the example above, it would mean comparing levels having been considered illegal. the men’s and the women’s pay without taking account of the differences in the worked hours. Yet, when we try to The econometric approach to the measurement of dis- measure the origins of pay gaps as accurately as possible, crimination is applicable in a company if it is big enough, the result obtained depends on a large number of factors: and large companies are using it more and more to identify the database used, the scope (private sector or the entire the main levers of professional equality. It can also serve, as in the Walmart case, as an aid to lawyers to highlight dys- functions. But it should not be forgotten that these methods 12 R. Oaxaca, «Male-female wage differentials in urban labor mar- require a certain technical skill both in the construction of kets», International economic review , 1973, p. 693-709. databases and econometric specifications and in results' 13 A.S. Blinder, «Wage discrimination: reduced form and structural interpretation. This also raises the question of the data col- estimates», Journal of Human resources, 1973, p. 436-455.

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lected. If for sex, age, etc. the information is not sensitive, it is for virtually all the other criteria. This therefore brings us back to the initial issue of the collection of individual data to analyse a situation. The challenge here is to give ourselves the means to highlight discrimination we suspect the existence whilst protecting the confidentiality of the characteristics of the employees in an establishment.

Conclusion

In conclusion, the economists’ approach to discrimination appears to be complementary to that of the jurist. The economist provides measurements of inequality and of what can be linked to identifiable factors. Whatever the approach chosen, direct with the testing method or experiments, indirect with the exploitation of existing statistical data, a great deal of care must be taken by the economist in constructing the demonstration of the existence of an inex- plicable inequality. He or she must be transparent in the method adopted and not leave in the shadows any aspect of the collection of the data, the construction of the variables and the statistical techniques used. But the economist cannot replace the jurist when it comes to interpreting the facts in terms of discrimination within the meaning of the law.

In some cases, it is worth adding that implementing policies on identified factors not falling withing the category of “discrimination” may have a significant impact on the general reduction in inequalities. Thus, the main factor in pay inequality between men and women is the difference in the number of hours worked. Policies on work-life balance, incitement for parents to share domestic duties, etc... would enable women to work full time and have a powerful effect on reducing inequalities, on a larger scale than the (otherwise highly desirable) elimination of discriminatory practices.

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92 Comparativeétudesé tudelabours case law - 1

Coordonated by Allison Fiorentino ferComparativenando labour case law

The strike and the judge: between distrust and protection

EDITORIAL

he right to strike is not always appreciated by the employers who try to dry up the sources of inspiration of the judge when he protects this right. One of these sources is incontestably the international law, in particular the International organization of Work (ILO) law and the European Convention on human rights. In this respect it is interesting to examine, through the article of Mrs. Fiorentino, the position of the international authorities of the ILO and the Council Tof Europe concerning the right to strike. (I) The judge's work with regard to the right to strike is not limited to the definition of this right. Other related issues may arise. Thus, in 2013 and 2014, various South African courts handed down decisions on the extent of the right to strike of minority unions. Professor Rochelle Le Roux has made an analysis of that case law (II)

Finally the judge’s reluctance toward the right to strike as evidenced by the recent criminal conviction handed down by a Chinese court in the district of Guangzhou and presented by Professor Zheng Aiqing should not be swept under the carpet (III). Similarly, the German judge, despite the position of the European Court of Human Rights, does not seem in favor of the civil servants right to strike as evidenced by the article by Professor Achim Seifert (IV)

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A l l i s o n Fiorentino, Lecturer at the University of Clermont-Ferrand Center of research Michel de L'Hospital (EA 4232)

R i g h t t o s t r i k e a n d international a u t h o r i t i e s : B e t w e e n w i l l o f r e c o g n i t i o n , p o l i t i c a l p r e ss u r e s a n d l e g a l o bs t a c l e s

he right to strike is essentially stripped of consensualism. Because of the threat which it makes weigh on the companies, the national Parliaments were not always favorable to this collective right. Nonetheless both the official authorities and the highest Courts have admitted that the strike is the corollary necessary to the exercise of certain rights. Thus the right to collective bargaining is nothing more than a right “to collective begging” if there Tis not this sword of Damocles which the strike represents.1 Several supreme courts, of various legal horizons, recognized the inextricable bond between these two rights: the German Federal labour court,2 the British House of Lords,3 the Constitutional court of South Africa,4 the Supreme court of Canada...5 It is consequently deeply logical that this reasoning is also adopted by the international authorities when they are seized by the question of the interpretation of a collective right. Thus the Committee on Freedom of Association of the International Labour does not adopt of a revolutionary reasoning when, seized of recourse in connection with an infringement of Convention n°87, declares the right to strike a corollary to the freedom of association.6 In the same way the European Court of the human rights, after some excuses, admitted that the right to strike is a legitimate mode of action for a trade union and, for this reason is protected by the article 11 of the European Convention of the human rights.7 However it should not be believed that the international authorities or Courts developed a case law which goes in a direction increasingly more favorable to the exercise of the right to strike. The European Court of the human rights has a sometimes hesitant case law. The Court of justice of the European Union, in its Viking judgment, recalls that the right of collective action cannot be detrimental to the freedom of establishment.8

1 E.Tucker, « Can Worker Voice Strike Back? Law and the Decline and Uncertain Future of Strikes », Comparative Research in Law & Political Economy, Research Paper n° 58/2013, note 6. http://digitalcommons.osgoode.yorku.ca/clpe/300. Also published in Alan Bogg and Tonia Novitz (eds), Voices at Work: Continuity and Change in the Common Law World, Oxford University Press, 2014, pp. 455-474. 2 Decision of 10th june 1980 (Aff. 1 AZR 822/79). Cited by International Trade Union Confederation (ITUC), The right to strike and the ILO: the legal foundations, march 2014, p.15, note 53. http://www.ituc-csi.org/IMG/pdf/ituc_final_brief_on_the_right_to_strike.pdf. 3 Crofter Hand Woven Harris Tweed v Veitch [1942] AC 43 4 NUMWSA v Bader POP (pty) Ltd and Minister of Labour 2003 (2) BCLR 182. 5 SEIU, Local 204 and Broadway Manor Nursing Home (1983) 44 O.R. (2d) 392. 6 J. R. Bellace, «The ILO and the right to strike», International Labour Review, Vol. 153, 2014, pp. 29-70; J. M. Servais, «ILO standards on freedom of association and their implementation», International Labour Review, Vol. 123, 1984, pp. 765-781; «The ILO law and the freedom to strike», The Canadian Labour and Employment Law Journal, Vol. 15, 2010, pp. 147-163. 7 Enerji Yapi-Yol Sen vs. Turkey (ECHR, 3e Sect. 21 april 2009, req. n° 68959/01). 8 CJCE, 11/12/2007, aff. C-438/05, § 40 to 47.

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Moreover, there exist a certain number of obstacles with the power of international authorities to impose the respect of the right to strike. The recent diplomatic-legal incident implying the Tripartite committee of the General Conference of the International Labour Organization testifies of it. From 2012 to 2014, the employers’ representatives, disputing the position of the Committee on Freedom of Association relating to the right to strike, paralyzed the operation of the Tripar- tite committee preventing the normal process of control of the application of conventions.

Another obstacle resides in the lack of power of the structures which jurisdictional nature can be disputed. It is the case of the Committee of independent experts charged to examine the claims in the event of non-observance of the revised European Social charter. For several years, this Committee has drawn the attention of France to the fact that its law infringes the article 6§4 which acknowledges the right to strike.9

This article has the aim of examining the attitude of the international authorities with regard to the right to strike. Only the authorities of the ILO (I) and those of the Council of Europe will be examined (II).

I - The International Labour Organization

There are several authorities which work within the ILO and two of them played a key role in the recognition of the right to strike.10 First of all it is the Committee on Freedom of Association. Created in 1951, it is charged to examine the complaints mentioning violations of two conventions considered to be fundamental: convention n° 87 on the trade-union freedom and the protection of the trade union rights and convention n° 98 on the right to organize and collective bargaining.11 There is also the Committee of experts, created in 1926, in order to examine the reports of the Member States on ratified conventions.

The Committee on Freedom of Association very early decided in favor of a recognition of the right to strike. In a decision of 1952, this Committee had affirmed that: “The right to strike and that to arrange union meetings are essential components of the trade union rights”.12 At that time this decision had not caused any controversy.13 Emboldening itself, the Committee had declared in the case n° 163 relating to Myanmar that: “the allegations concerning the right to strike do not escape its competence (of the Committee) when they involve trade-union freedom”.14

The Committee did not discover a right to strike ex nihilo. Seized by claims on possible failures to conventions n°87 and 98, it interpreted these texts like including a right to strike. More precisely it was based on article 3 of the convention n°87 which lays out: “Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programs.”

9 That conclusion has been reiterated in 2001, 2002, 2004, 2006, 2010 and 2015. 10 No convention or recommendation acknowledges the right to strike. There is an allusion in a text: the recommendation n° 92 on conciliation and arbitration of 1951 which states in its article 7 “No disposition of the present recommendation can be interpreted as limiting in whatever manner the right to strike“. 11 These texts were considered so fundamental that they were included in the ILO Declaration on Fundamental Principles and Rights at Work adopted in 1998. 12 Case n°28 (United Kingdom), 1952, § 68. 13 International Trade Union Confederation (ITUC), The right to strike and the ILO: the legal foundations, op. cit., p. 24. 14 Case n° 163 (Myanmar), 1958, § 51.

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No doubt can remain about the constant reiteration of this recognition by Committee on Freedom of Association. To be convinced one must read the publications produced on this subject15 or of the extracts of the collection of the decisions of the Committee.16

The Committee of experts followed this position from 1959. In a document published in this date, the Committee consi- ders17 that there exists a possibility that the prohibition of the right to strike goes against article 8, paragraph 2, of convention n°87.18 In the publication of an overall study of 1994 on the application of conventions n°87 and 98, it clearly states that: “the right to strike is an indissociable corollary of the right of trade union association protected by convention n°87”.19

The employers’ representatives present at the International Labour Conference and at Conference Committee on the Application of Standards never disputed the existence itself of the right to strike only its definition.20 In the beginning of the year 2012, an unexpected incident revealed a new position of the employers on this subject. The spokesman of the employers ‘representatives announced to the International Labour Conference that there would be no discussion concerning the right to strike. In other words, and contrary to the habit, the representatives of the employers refused to examine the question of a possible ignorance of the right to strike by the Member States.21

Explaining their position by the facts that the right to strike was never acknowledged by a convention of the ILO and that the Committee on Freedom of Association had exceeded its functions by creating a right, the representative of the employers obstinately refused any dialog. Persisting in their attitude of many months, the employers even refused, in November 2014, that the question is submitted before the International Court of Justice for an advisory opinion.22

15 R. Ben Israel, International Labour Standards: The Case of Freedom to Strike, Kluwer Law and Taxation, 1988, pp. 64-66; B. Creighton, «Chapter 11. Freedom of association», in Roger Blanpain, Jim Baker (eds.) Comparative Labour Law and Industrial Relations in Industria- lized Market Economies, Kluwer Law International, 2010, pp. 331-338; E. Gravel, I. Duplessis, B. Gernigon, Le Comité de la liberté syndicale : quel impact depuis sa création ?, Genève, Bureau international du Travail, 2ème éd., 2002; http://www.ilo.org/wcmsp5/groups/public/- --ed_norm/---normes/documents/publication/wcms_087815.pdf; B. Gernigon, A. Odero, H. Guido, ILO principles concerning the right to strike, Geneva, ILO, 2000, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_087987.pdf; T. Novitz, International and European Protection of the Right to Strike, Oxford University Press, 2003, p. 192. 16 ILO, Freedom of association - Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO. 5th ed., 2006, § 520-676; http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_090632. pdf. 17 Cited by L. Swepston, «Human rights law and freedom of association: Development through ILO supervision, Development of freedom of association through ILO», International Labour Review, Vol. 137, n° 2, 1998, pp. 170-194, spéc. p. 187. See also B. Gernigon, A. Odero, H. Guido, ILO principles concerning the right to strike, op. cit., p. 8. 18 According to this text: «The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention». 19 ILO, Freedom of association and collective bargaining. General Survey of the Reports on the Freedom of Association and the Right to Organize Convention (No. 87), 1948 and the Right to Organize and Collective Bargaining Convention (No. 98), 1949, §179, p. 79. http://www. ilo.org/public/libdoc/ilo/P/09661/09661(1994-81-4B).pdf. 20 A. Wisskirchen, C. Hess, Employer’s Handbook on ILO Standards-Related Activities, International Labour Office, Geneva, 2001, pp. 35–36, http://www.ilo.org/public/english/dialogue/actemp/downloads/projects/employers_handbook_en.pdf; J.-M. Verdier, « Débat sur le droit de grève à la Conférence internationale du Travail », Dr. soc., déc. 1994, pp. 968–971. 21 K. D. Ewing, « Myth and Reality of the Right to Strike as a ‘Fundamental Labour Right’ », International Journal of Comparative Labour Law and Industrial Relations, 2013, Vol. 29, n° 2, pp. 145–165; International Trade Union Confederation (ITUC), The right to strike and the ILO: the legal foundations, op. cit., p. 5; C. La Hovary, « Showdown at the ILO? A Historical Perspective on the Employers’ Group’s 2012 Challenge to the Right to Strike », Industrial Law Journal, 2013, Vol. 42, n°4, pp.338-368; L. Swepston, «Crisis in the ILO supervisory system: Dispute over the right to strike», International Journal of Comparative Labour Law and Industrial Relations, 2013, vol. 29, n° 2, pp. 199–218. 22 http://www.europaforum.public.lu/fr/actualites/2015/02/pe-droit-greve-oit/index.html.

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To get out of this situation, a tripartite meeting was arranged in Geneva and led on February 23rd, 2015 to a victory in favor of the right to strike. Indeed a joint statement of the Group of the workers and Group of the employers adopted at the conclusion of this meeting lay out: “The right to take industrial action by workers and employers in support of their legitimate industrial interests is recognized by the constituents of the International Labour Organization".23 This declaration favorable to the right to strike does not make it possible to predict a future stripped of any conflict or any change. The right to strike knows sometimes a bright victory before being repudiated, or at least attenuated, as shown by a recent decision handed down by the European Court of the human rights.

II - Authorities of the Council of Europe

The Council of Europe is based on two treaties, one protecting the civil laws and policies (the European Convention of the human rights) and the other the social rights (the European Social charter). This presentation does not show the fundamental inequality which opposes these two texts. Whereas the European Convention of the human rights is equipped with a frightening control mechanism which ensures the effectivity of it, the infringements to the Social charter are condemned only by one non-jurisdictional institution24 and whose decisions are deprived of pecuniary consequences.

Contrary to conventions of the ILO which explicitly do not acknowledge the right to strike, the European Social charter solemnly proclaims it in its article 6§4.25 Unfortunately the competent authority to hand down decisions about failures (the European Committee of Social rights) renders decisions deprived of the strength attached to the judgments delivered by the European Court of the human rights. At most the Committee of the Ministers can adopt a recommendation intended for the State which ignores the Charter.26

This situation is particularly regrettable because many signatory countries of the Charter infringe his article 6§4 with impunity. For example: France. In its conclusions of January 2015,27 the European Committee of Social rights reproached once again at the French State the ignorance of the article 6§4. On the one hand the Committee concludes that the situation of France is not in conformity with the Charter because only the representative trade unions have the right to start a strike in the public sector. In addition it stresses that the French legislator maintains a reserve on monthly salary of 1/30e wages of the civil servants of the State and agents of other national public services for strikes of less than one day, whatever their duration. He does not conclude to the violation of the Charter but expects explanations of the French State on this point to reach a decision.28

23 Tripartite Meeting on the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), in relation to the right to strike and the modalities and practices of strike action at national level, Geneva, 23–25 February 2015, TMFAPROC/2015/2, p. 2 http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms_346764.pdf. 24 There is an ongoing debate concerning the nature of this authority. R. Brillat, « La mise en oeuvre des droits sociaux fondamentaux: remarques générales », in La protection des droits sociaux fondamentaux en Europe par la Charte sociale européenne: actes du colloque de Sofia, juillet 2000, Conseil de l’Europe, 2001, p. 90; J-M. Belorgey, « La Charte sociale du Conseil de l’Europe et son organe de régula- tion : le Comité européen des droits sociaux », RDSS, 2007, p. 226; J-P. Marguenaud, J. Mouly, « Le Comité européen des Droits sociaux, un laboratoire d’idées sociales méconnu », RDP, 2011, n°3, p. 685. 25 «With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: (…) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.» 26 Article 9 of the additional protocol providing for a system of collective complaints, STCE n° 158. 27 The European Committee of Social Rights, Conclusions, january 2015; http://www.coe.int/t/dghl/monitoring/socialcharter/Conclu- sions/Prep/France2014_fr.pdf. 28 Ibid p. 38.

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France is not the only State to be recalled to the order for ignorance of the article 6§4. Thus on December 8th, 2014,29 Armenia attracted himself the same reproach because:

• the necessary majority of workers to start a strike is too high;

• it is not established that the employees strikers are protected from the dismissal after a strike.

In the same way on December 5th, 2014,30 the Committee concludes that the Bulgarian law is not in conformity with the article 6§4 of the Charter for the following reasons:

• the strike is prohibited to the ministry for Defense employees ;

• the restriction of the right to strike of staffs of the railroads does not respect the Charter;

• the civil servants are only authorized to resort to symbolic actions and do not have the right to strike;

• the obligation to notify to the employer or to his representatives the duration of the strikes before the beginning of those does not respect the Charter.

Very different is the situation which prevails before the European Court of the human rights. Its decisions are compulsory and impose pecuniary penalties. That being the Court is not charged to ensure the respect of the European Social charter but of the European Convention of the human rights. This text is stripped of reference express to the labor law except for article 4 which prohibits the forced labor and of article 11 which specifies that the right to freedom of association understands also the right to form and to join trade unions for the protection of his interests. A priori, the Convention is not a source of protection of the right to strike. However one should not occult the extensive interpretation of Convention by the European Court.

The European Court was not always favorable to the use of Convention in situations concerned with the labor law. Thus in a judgment of 1975, she had refused to establish a right of the trade unions to the consultation (that the applicants considered founded on article 11 of Convention) because of the existence of the Social charter which had vocation to apply in labor law.31 This position was not to last since today the European Court hands down judgments which have an incidence in labor law, so much so that professor Marguénaud came from there to wonder whether the moment had not come for the Court to assert itself as a true European jurisdiction of labor law, which nobody never asked it to become.32

Concerning the right to strike, the Court had a fluctuating position. In 1976, it had expressly affirmed that article 11 did not ensure the right to strike33. In 2002, it had declared inadmissible a request of strikers sanctioned but, curious thing, it had lengthily analyzed their request.34 In 2007, a new step had been taken when the Court had considered that an employee

29 Conclusions 2014 - Arménie, 2014/def/ARM/6/4/FR. 30 Conclusions 2014 – Bulgarie, 2014/def/BGR/6/4/FR. 31 Moreover, issues relating to unions have been dealt with in a detailed manner by another Convention, also developed within the framework of the Council of Europe, the Social Charter of October 18th 1961. Its article 6§1 compels the contracting States to “to promote joint consultation between workers and employers”, Syndicat national de la police belge v. Belgium, ECHR 27 oct. 1975, req. 4464/70, § 38. 32 J-P. Marguénaud, « Convention Européenne des Droits de l’Homme et droit du travail », Association française de Droit du travail et de la Sécurité sociale, Séance du 21 mars 2008, http://www.afdt-asso.fr/fichiers/publications/cedh.pdf. 33 Schmidt and Dahlström v. Sweden, ECHR 6 feb. 1976, req.5589/72, § 36. 34 Wilson, National union of journalists v. United Kingdom, ECHR. 2nd july 2002, req. 30668/96, 30671/96 and 30678/96. Professors Mouly and Marguénaud interpreted this in a positive sense for the recognition of the right to strike by the European Court. J-P. Marguénaud,J. Mouly, « La Cour européenne des droits de l’homme à la conquête du droit de grève », RDT, Dalloz, 2009, p. 499.

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sanctioned to have taken part in one day national action, had been victim of a violation of the rights guaranteed by article 11.35 The recognition of a right to strike attached to article 11 of Convention seemed imminent when, a few weeks later, the Court destroyed this hope at the time of another judgment.36

A few months later the hope reappeared thanks to a decision of 2009 in which it indirectly established the right to strike while referring in particular to convention n°87 of the ILO and the European Social charter.37 It was pressed on these texts to declare the right to strike like an essential corollary of freedom of association.

On April 8th, 2014, the Court of Strasbourg seems again being wary with regard to this right while handing down a judgment which, against all odds, expresses a form of severity towards the collective actions.38 The question asked to the Court was: does the prohibition of the solidarity strikes complies or not with article 11. The solidarity strike is the movement organized in a company to support the professional claims of other strikers. In the United Kingdom such a movement is prohibited.39 The Court rejected the request of the trade unions petitioning to the action by considering that the British law was in perfect conformity with European Convention.

Not only the conservative position of the Court surprises but its argumentation was widely subjected to criticism. Indeed, among the reasons explaining its decision, some seem particularly contestable, in particular the fourth one.40 According to the Court the total ban of the actions of solidarity goes back to 20 years and was never amended since. There is thus a democratic consensus on this subject and the Court does not recognize to itself the legitimacy necessary to call into question such a measurement. This argument could make one smile especially when it is compared with the daring solutions of the Court in certain areas like procreation medically assisted.

Moreover the doctrine was not mistaken. If the decision caused relatively little reactions in France, he was violently criticized in particular by British professors Bogg and Ewing who did not hesitate to state that the reasoning of this decision was deeply defective and that it was the result of political pressures.41

35 Karaçay v. Turkey, ECHR 27 march 2007, req.6615/03. 36 Satilmis v. Turkey, ECHR 17 Jul. 2007, req.74611/01, 26876/02 and 27628/02. J-P. Marguénaud, J. Mouly, « Les incursions de la Cour européenne des droits de l’homme en droit du travail : une œuvre encore en demi-teinte », RDT, Dalloz, 2008, p. 16. 37 Enerji Yapi-Yol Sen v. Turkey, ECHR 21 apr. 2009, req. 68959/01, (§ 34). J-P. Marguénaud, J. Mouly, « La Cour européenne des droits de l’homme à la conquête du droit de grève », op. cit ; A. Veldman, «The Protection of the Fundamental Right to Strike within the Context ofthe European Internal Market: Implications of the Forthcoming Accession of the EU to the ECHR», Utrecht Law Review, 2013, Vol. 9, n°1, pp. 104-117. 38 R.M.T. v. United Kingdom, ECHR 8 apr. 2014, req. 31045/10. 39 Only three other States in Europe completely ban it : Austria, Netherlands and Luxembourg. W. Warneck, La réglementation des grèves dans l’Union des 27 et au-delà. Synthèse comparative, Institut syndical européen pour la Recherche, la Formation et la Santé et Sécurité, 2008, Bruxelles, https://www.etui.org/Publications2/Reports/Strike-rules-in-the-EU27-and-beyond. 40 §99. 41 A. Bogg, K. D. Ewing, «The implications of the RMT case», Industrial Law Journal 2014, vol. 43, pp. 221-252, sp. p. 221.

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R o ch e l l e l e R o u x University of Cape Town Institute of Development and Labour Law

D o e s majoritariani s m s t i l l r u l e i n S o u t h A f r i c a ?

South African strike law has often been hailed as a model strike law. However, in recent years strikes have not only become extremely violent, but official statistics suggest that trade unions1 regularly disregard the legal requirements for a protected strike. For instance, in 2013 52% of strikes were unprotected.2 It is widely suggested that union rivalry and the marginalised position of smaller unions are partly to blame for this. The most influential federation of trade unions in South Africa is the Congress of South African Trade Unions (COSATU). It has always observed the principle of one union per industry. However, in the wake of its current fragmentation, union rivalry and the multiplicity of unions at a workplace may now become even more contentious. It is against this background that South African judgments addressing the following two themes are highlighted below:

- The extent to which minority unions can strike for improved conditions of employment as well as organisational rights – this relates to the application of what is generally referred to as ‘majoritarianism’. (Section B)

- The extent to which non-union members and members of minority unions can join a strike called by a majority union without further notice, and the application of this principle in the case of a (secondary) lock-out. (Section B)

Section A provides a brief overview of the legislative landscape in respect of the right to strike as well as a brief overview of the limitations to the right to strike. Final reflections are summarised in a concluding paragraph (Section D).

Section A - Legislative landscape and general limitations to the right to strike

The South African Constitution provides that everyone has the right to fair labour practices and that a worker has the right to form and join trade unions and to strike. It also provides that unions have the right to organise and to bargain collectively.3 The right to freedom of association and the right to peaceful demonstration and picketing are also guaranteed by the Constitution. Typical of most constitutions, these rights may be limited in terms of section 36(1) of the Constitution (the ‘limitation clause’).

1 The terms ‘trade union’ and ‘union’ are used interchangeably in this note. 2 http://www.labour.gov.za/DOL/downloads/documents/annual-reports/industrial-action-annual-report/2013/industrialactionre- port2013.pdf 3 Section 23 of the Constitution.

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The Constitution, both when considering the application of the limitation clause, or when interpreting legislation, places a very high value on international law. Both Conventions of the International Labour Organisation (ILO) and reports of its supervisory bodies have been identified as competent sources of international law in this regard.

The Constitutional right to strike and limitations to the right are given content by the Labour Relations Act 66 of 1995 (LRA). The LRA imposes a number of procedural requirements before strike action can commence such as notice and conciliation.4 However, a procedural requirement common in other jurisdictions, namely a ballot, is not required. The substantive limitations relate to peace clauses, arbitration agreements or issues that are subject to arbitration or adjudication in terms of employment legislation.5 Strikes within these restrictions are protected.6 Unprotected strikes can be interdicted by the Labour Court and strikers can be dismissed for misconduct.

Section B - Minority unions and limitations to their right to strike

In order to understand the capacity of minority trade unions to strike, generally, and more specifically for organisational rights, it is first necessary to briefly explain the scheme of the LRA in respect of collective agreements and organisational rights.

Collective agreements are defined as written agreements about terms of conditions of employment or any matter of mutual interest between registered trade unions and an employer. Section 23(1)(d) of the LRA provides that collective agreements may be extended to employees who are not members of the union or unions party to that collective agreement. One important requirement for such extension is that that the union or unions who are party to the collective agreement must have as their members the majority of employees employed by the employer in the workplace. Collective agreements in terms of section 23 of the LRA are usually associated with wages and terms and conditions of employment. In practice this means that a majority union (or two or more unions representing the majority) at a workplace may agree on wages with the employer and extend that agreement to non-unionised employees or employees whose union is not a party to the collective agreement (mostly this suggests a minority union). Furthermore, if the collective agreement contains a peace clause, by virtue of the application of section 65 of the LRA, the minority union may not strike for better wages for the duration of the peace clause.

The LRA provides for certain statutory organisational rights such as access to the workplace for unions,7 deduc- tions of union subscriptions,8 leave for union office bearers to attend to union activities,9 the election of union representatives (shop stewards),10 and the right to the disclosure of certain information.11 The LRA grants (as of right) organisational rights to sufficiently representative unions only and allows them, if there is a dispute about their repre-

4 Section 64 of the LRA. 5 Section 65 of the LRA. It is often said that strikes are permitted in respect of ‘interest disputes’ (disputes about the creation of new rights), but not in respect of ‘rights disputes’ (disputes about the interpretation and application of existing rights). However, this distinction is not formally expressed in the LRA. 6 Section 67 of the LRA. 7 Section 12 of the LRA. 8 Section 13 of the LRA. 9 Section 15 of the LRA. 10 Section 14 of the LRA. 11 Section 16 of the LRA.

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sentativeness and bargaining fails, to establish these rights via either arbitration or by striking.12 ‘Sufficiently representative’ in the case of the first three mentioned organisational rights means a union or two or more unions acting jointly which represents a substantial portion of the employees employed by an employer at the workplace, but it need not be the majority of employees. However, in the case of the last two mentioned organisational rights, ‘sufficiently representative’ means a union, or two or more unions acting jointly, that represents the majority of employees at the workplace of the employer. In the context of organisational rights, section 18 of the LRA further provides that an employer and a majority union (in this case the LRA does not provide for two or more unions to jointly form the majority) may conclude a collective agreement establishing a threshold of representativeness required in respect of the right to access to the workplace, union subscriptions and leave for union activities. In other words this mechanism can be used to marginalise minority unions even more. For instance, the employer and the majority union may agree that trade union subscriptions may only be deducted from members of another trade union once that other union achieves a 25% representativeness in that workplace.

Both section 23(1)(d) and section 18 of the LRA (as well those sections providing organisational rights to only majority unions) are clear expressions of majoritarianism. Since a union is precluded from striking if it is bound by a collective agreement (even if it became subject to that agreement via extension and not by direct agreement),13 it appears that both these sections may limit the right of minority unions to strike. Or does the LRA in fact make a distinction between collective agreements in terms of section 23(1)(d) and those collective agreements in terms of section 18 of the LRA regulating organisational rights?

The Constitutional Court in 2003 in Bader Bop14 considered whether a minority union that conceded that it was not representative, may bargain and thus strike in order to have their shop stewards recognised? In this case the union was not subject to a collective agreement extended to it in terms of section 23(1)(d) of the LRA and neither was there a collective agreement in terms of section 18 of the LRA that regulated organisational rights. The Constitutional Court proceeded from the general proposition that if a union is entitled to bargain collectively on a specific matter, it is also entitled, subject to certain recognised limitations, to strike on that matter.15 Since none of the limitations recognised by the LRA was present in this case,16 the court concluded that the recognition of shop-stewards is a legitimate subject matter for bargaining and strike action by a minority union.17 The Constitutional Court mentioned that this would be consistent with the view of the ILO that freedom of association can be maintained in a system giving preferential treatment to representative unions provided that the ‘minority unions are allowed to exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions from time to time.’18

This begs the question whether a collective agreement, either in terms of section 23(1)(d) or section 18 of the LRA, may limit the right to strike of a minority union which is not party to that agreement? 19

12 Section 21 read with section 65(2)(a) of the LRA. 13 See section 65(1)(a) of the LRA. 14 National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another 2003 (3) SA 513 (CC). 15 Ibid par 43. 16 Transnet Soc Ltd v National Transport Movement and others [2014] 1 BLLR 98 (LC). 17 Ibid par 45. 18 Ibid par 32. 19 See T Cohen ‘Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)’, 2014 (17)5, Potchefs- troom Electronic Law Journal.

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Section 23(1)(d) of the LRA

Chamber of Mines20 was handed down by the Labour Court in 2014. The employer parties to the litigation has various gold mining operations. The Association of Mineworkers & Construction Union (AMCU) represented the majority of employees at certain individual mines, but not at all the mining operations collectively. The employers entered into a collective agreement about wages and conditions of employment with three unions (not AMCU) who together represented the majority of employees at all the mining operations collectively. The collective agreement was then extended to AMCU, using section 23(1)(d) of the LRA. AMCU, however, argued that the individual mines were all separate workplaces and that since they held the majority at some of the individual mines, the collective agreement could not be extended to these mines. They commenced strike action for better wages at the individual mines where they held the majority, but the employers argued that they were subject to the collective agreement and thus prohibited from striking. In considering a final interdict against the strike, the court held that the individual mines in fact shared a number of central services (for example, human resources, financial management and production planning) and that each mine was not an independent operation and thus not a separate workplace.

During the course of argument before the Labour Court, AMCU questioned the constitutionality of the majoritarianism that is embedded in section 23(1)(d) of the LRA since it limits the constitutional right of minority unions to strike in certain circumstance. The Labour Court held that it was consistent with international law and not unconstitutional. In doing so the court emphasised that the purpose of majoritarianism is to promote orderly collective bargaining and advancing labour peace.21 Applying the limitation clause in the Constitution, the Labour Court held that section 23(1)(d) of the LRA served a legitimate purpose and was proportional since there is no lesser means of achieving that purpose. It concluded that ‘if an employer and unions party to a collective agreement were denied the right to the extent their agreement to non-party employees, collective bargaining would be characterised by opportunism and the attendant threat to the formation of stable relationships. To the extent that this involves some limitation of the right to strike . . . this is entirely justifiable.’22

It should be stressed that this finding only relates to a collective agreement in terms of section 23(1)(d) of the LRA which normally concerns the regulation of terms and conditions of employment. But can this sentiment legitimately be applied to organisational rights and a collective agreement contemplated in section 18 of the LRA?

Section 18 of the LRA

In this regard there are two conflicting 2014 Labour Court judgments. In POPCRU23 the court had to decide whether it was possible for an employer to conclude a collective agreement on organisational rights with a minority trade union which did not meet the thresholds of representativeness identified in a collective agreement in terms of section 18 of the LRA. (In other words, unlike the case in Bader Bop, the matter was regulated by a collective agreement in terms of section 18 of the LRA.) The court, clearly wary of the complications presented by the proliferation of unions,24 held that a collective agreement is no different from any other collective agreement simply because it regulates organisational rights.25 A collective agreement, including a collective agreement contemplated by section 18 that meets the requirements of section 23(1)(d) is

20 Chamber of Mines of South Africa obo Harmony Gold Mining Company Ltd and Others v Association of Mineworkers of SA and Others; In Re: Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa obo Harmony Gold Mining Company Ltd and Others [2014] 9 BLLR 895 (LC). 21 Ibid pars 69, 71 and 73. 22 Ibid par 69. 23 Police & Prisons Civil Rights Union v Ledwaba NO & others (2014) 35 ILJ 1037 (LC). 24 Ibid par 46. 25 Ibid par 44.

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binding on non-parties to the agreement.26 Read with section 65 of the LRA, they are thus prevented from striking on that issue (in this case organisational rights).27

Assuming that this is a correct interpretation of the LRA, it raises the question whether it does not limit the ability of minority unions to organise and represent their members and whether it is consistent with the ILO’s understanding of majoritarianism and thus whether it is constitutionally sustainable. While majoritarianism may well be justified, as indeed endorsed in Chamber of Mines, in the context of collective bargaining concerning terms conditions of employment, different interests and practicalities are at stake when considering organisational rights and it might simply be too blunt not to make the distinction.28

Perhaps this is the reason why the Labour Court in another judgment handed down in 2014, followed a slightly more conservative approach.29 In Transnet the court had to decide whether a minority union not meeting the threshold of representativeness for organisational rights identified in a collective agreement in terms of section 18 of the LRA (between the employer and four unions who together formed a majority), could strike in pursuance of recognition? The minority union was not a party to this collective agreement; neither was the collective agreement extended to non-parties in terms of section 23(1)(d) of the LRA. Did the limitation to strike in section 65 of the LRA nonetheless apply? Applying the ratio in POP- CRU that an agreement about organisational rights would have the same effect as an extension in terms of section 23(1)(d), the minority union would not be able to strike for organisational rights The court held that section 18 of the LRA does not permit several unions to act jointly when concluding a collective agreement in terms of this section and the section therefor did not apply in this matter. The minority union was thus not prevented from striking for organisational rights. However, the court, ostensibly unaware of the judgment in POPCRU, contradicted the sentiments expressed in that judgment and indicated (obiter) that even if the requirements of section 18 of the LRA were met, there is no express limitation in the LRA which prevents a minority union in these circumstances to bargain collectively, and if necessary, to strike for organisational rights. It therefore seems as if the court in Transnet was determined to maintain a distinction between collective bargaining about organisational rights on the one hand, and collective bargaining about substantive conditions of employment on the other hand.

The latter judgment (Transnet) appears to be more consistent with international law, but some doubt will remain until a definitive judgment on the matter is handed down by a higher court. Similar to the approach in Bader Bop, such a court is likely to favour an interpretation of the LRA that is more consistent with international law. If, however, such a court finds that the LRA is not capable of being interpreted in this way, it is likely that it will, similar to the court’s approach in Chamber of Mines, consider whether the limitation is justifiable in terms of the limitation clause in sections 36 of the Constitution.

It is also doubtful whether the latest amendment to the LRA30 will change the position of minority unions in this regard. It provides an opportunity for minority unions that do not meet the threshold contemplated by a collective agreement concluded in terms of section 18 of the LRA, to acquire certain organisational rights (union access to workplace; union subscriptions and leave for union activities) through arbitration if all the parties to that agreement have been given an opportunity to participate in the arbitration proceedings and the minority union represents a significant interest or a substantial number of employees.31 Ordinarily, strike action is not permissible if a party to a dispute has a right to refer the

26 Ibid par 48. 27 See Cohen above. 28 M Brassey, ‘Labour Law After Marikana: Is Institutionalized Collective Bargaining in SA Wilting? If So, Should We Be Glad or Sad?’, (2013) 34 ILJ 823 at 834. 29 Transnet Soc Ltd v National Transport Movement and others [2014] 1 BLLR 98 (LC). 30 Labour Relations Amendment Act 6 of 2014. 31 See section 22 (8C) of the LRA as amended.

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issue to arbitration or to the Labour Court, but this prohibition does not apply when the issue in dispute concerns organisational rights.32 This amendment, although introducing the possibility of minority unions acquiring certain organisational rights through arbitration despite not meeting the threshold envisaged in a collective agreement in terms of section 18 of the LRA, does not per se prevent a minority union from striking for those rights. In other words, the question that the judgments in POPCRU and Transnet answered in opposite ways, is not resolved by the amendment.

Although it appears that minority unions can be short-changed when it comes to the negotiation and application of collective agreements, they do have an opportunity to ride on the coattails of majority unions when it comes to participation in strike action. One of the procedural requirements for protected strike action is that at least 48 hours’ written notice (seven days if the employer is the State) of the commencement of the strike must be given to the employer.33 In 2012 the Consti- tutional Court in Moloto,34 in circumstances where it was clear, due to the presence of an agency shop agreement, that the majority union was in any event acting on behalf of employees who were not its members, held that the notice given by a majority union also entitled employees who are not members of that union to strike without any further notice. The dismissal of these employees for striking was thus held to be automatically unfair. The Constitutional Court, guarding against any unnecessary limitation of the right to strike, refused to read a requirement into the LRA which was not expressly provided for and commented that ‘to hold otherwise would place a greater restriction on the right to strike of non-unionized employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionized or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.’35

However, in 2014, the implications of this judgment, was tested in the context of lock-outs. In Autopax36 a majority trade union and a smaller union were parties to a collective agreement with the employer. The majority union commenced strike action for improved conditions of employment, but the members of the minority union continued to tender their services. The employer countered with certain demands and then proceeded to give notice of lock-out to both unions although the employer was not directly in conflict with the minority union. Even after the lock-out, the members of the minority union continued to tender their service, but their lock-out continued and the employer did not remunerate them for the period covering the lock-out. After the dispute was settled, the members of the minority union wanted to recover the unpaid remuneration from the employer on the basis that they continued to tender their services. The Labour Court rejected this claim. Transplanting the Constitutional Court judgment in Moloto to the lock-out situation, it held that since the settlement of the issue at stake would also have benefitted the members of the minority union, the employer was also entitled to lock them out although they were not in direct dispute with the employer. The members of the minority union should therefore have addressed their predicament, not by tendering their services, but by acceding to the demands of employer.

However, this judgment is in conflict with a judgment of the Labour Court handed down in 2013 in which the facts were very similar. In Algoa Bus,37 the court held that the lock-out in respect of the minority union was unlawful because the employer was not in dispute with the minority union. However, the judge in Autopax reasoned that he was not bound by this earlier judgment of the Labour Court since it was clearly wrong.38

32 Section 65(1)(c) read with s 65(2)(a) of the LRA. 33 Section 64 of the LRA. 34 SA Transport & Allied Workers Union v Moloto NO (2012) 33 ILJ 2549 (CC). 35 Ibid par 92. 36 United Transport & Allied Trade Union/SA Railways & Harbours Union & others v Autopax Passenger Services (SOC) Ltd & another (2014) 35 ILJ 1425 (LC). 37 Transport & Allied Workers Union of SA obo Members v Algoa Bus Co & another (Pty) Ltd (2013) 34 ILJ 2949 (LC). 38 The principle of stare decisis applies in the Labour Court. This implies that a judge need not observe a judgment that he ordinarily bound to follow if that judgment in his view is ‘clearly wrong’.

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Conclusion

The above judgments suggest that minority unions are generally in a very subservient position in respect of collective agreements concerning terms and conditions of employment (ie not involving organisational rights) and that majoritarianism is settled in this regard. There is doubt whether majoritarianism applies to the same extent to the right of minority unions to strike for organisational rights and the labour courts have send mixed signals in this regard. The same uncertainty prevails in respect of an employer’s right to lock-out a minority union when it is not in dispute with that union. The uncertainty in both these circumstances will only be settled once it is pronounced upon by a higher court. In the meantime minority unions will continue to function with uncertainty in these areas.39

39 Postscript : Subsequent to the publication of the original article, the judgment of the Labour Court in Algoa Bus was overruled on appeal and the Labour Appeal Court specifically endorsed the judgment in Moloto. The judgment of the Labour Appeal Court is reported as Putco (Pty) Limited v Transport and Allied Workers Union of South Africa and another [2015] 8 BLLR 783 (LAC). The union appealed this judgment to the Constitutional Court and on 8 March 2016 it handed down judgment in Transport and Allied Workers Union of South Africa v PUTCO Limited [2016] ZACC 7. In a unanimous judgment, the Constitutional Court overruled the judgment of the LAC. At pars 61-66 the court again confirmed the importance of majoritarianism, but stressed that it finds application only after a collective agreement has been concluded and that it does not apply in the case of strikes and lock-outs.

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A i q i n g Z H e n g Associate Professor of Law at Renmin University of China (China). Doctor of Law at Panthéon-Sorbonne University (France).

r e f l e c t i o n s o n a c r i m i n a l c a s e l i n k e d t o l a b o u r a c t i v i s m i n C h i n a

On 14 April 2014, Baiyun district court in Guangzhou handed down criminal convictions on 12 workers who had demanded improvements in their working conditions by means of abnormal collective action,1 specifically for the crime of “gathering a crowd to disturb social order”. Three workers were sentenced to nine months in prison, six others to eight months’ prison, and the three others were found guilty of this crime, but were exempted from criminal penalties.

This judgment merits discussion on two fronts: both on the definition of the crime of “gathering a crowd to disturb social order” provided for by Article 298 of Chinese Criminal Law and the wrongful labour protest actions (I), and on the need for a collective bargaining mechanism in China to determine working conditions and resolve collective conflicts (II).

I - Crime and wrongful labour protest actions: what is the connection?

In the legal subordinate relationship of labour relations, it is normal that workers demand their rights and interests when they are not satisfied with their working conditions. How can they react and what form can their demands take? All these questions are indeed crucial to the fate of workers. The methods of workers expressing their grievances and taking action in the West are protected and governed by a clear legal framework, which is the result of the historical development of labour laws in these countries. Treating labour activism as criminal, as was the case in the first half of the 19th century, is outdated. But this continues to be the reality in a country like China where the labour movement is growing along with the process of accelerated industrialisation and where there is still little legal protection for collective labour activism.

In the case at hand, the workers, after the refusal or the failure of their complaint, felt that they had to resort to wrongful actions to achieve a dialogue with the employer in order to find a joint solution.2 The fact that they climbed onto and

1 On 19 August 2013, for having demanded compensation and the payment of social contributions owing to them as a result of their being made redundant without notice by Hospital No. 1 attached to the Guangzhou University of Chinese Medicine, about ten guards from this hospital, after three months of attempting in vain to initiate a dialogue with the hospital, and three months after complaining to the local government, felt the need, early one morning, to climb onto a low courtyard roof on a building just opposite the hospital, displaying their claims on large banners and handing out a flyer. With no response from the hospital, their action continued throughout the day. In the morning the police came and set up a cordon near the building and about ten policemen tried to expel the workers. This led to a crowd gathering in front of the hospital gates, and the local television channel came out to film a report. By 18.37 pm, all 13 people involved had been detained by the police. 2 At the beginning of the conflict, there were more than two hundred workers involved, including a hundred and twenty guards and nursing auxiliaries. Throughout the process, the employer divided the workers by making individual promises. Eventually, about ten guards, who refused this resolution, had obtained absolutely nothing in spite of their demands.

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sat on a roof, handed out flyers, set up banners with their grievances, called for negotiations with the employer, spoke to the television channel and the police, refused to leave the roof when asked to do so by the police – does that constitute an offence that can be characterised as «gathering a crowd to disturb social order»?

Under the terms of Article 290 of the Criminal Law, this crime refers to actions that disturb social order by gathering a crowd, with aggravating circumstances, which render impossible the operation of production, business, healthcare, education or research, having caused serious damage. The main culprit in such a crime risks a prison sentence of between three and seven years and the other participants may receive either prison sentences, or detention, or house arrest, for a period that must be less than three years. It is therefore crucial to decide whether the wrongful protest actions of these workers can be judged as actions «with aggravating circumstances» and which «render impossible healthcare operations». The workers’ lawyer pleaded that their actions, although wrongful, did not disrupt the operation of the transfusion department in the hospital building concerned as the workers were on the courtyard roof. This could not prevent the operation of the transfusion department below.

The moving of the transfusions to a different place in the afternoon was a decision taken by the hospital and could not be seen as proof of impossibility of operation. Similarly, the presence of the police and the security measures adopted on the site by the police itself were not proof of serious damage or serious disturbance of the social order. In addition, to meet the conditions for this crime, the deliberate intention of the people involved to cause serious damage or render the operation of the company impossible must be demonstrated. Given the absence of these three essential elements to characterise this crime – the occurrence of disruptions to operations, serious damage and the intention to cause them – the actions of these workers cannot be judged as constituting this crime.3 In the eyes of this lawyer, the workers’ wrongful actions should nevertheless be subject to the administrative sanctions provided for by the regulations on social security control and sanctions. Paragraph 1 of Article 19 of these regulations provides that actions disrupting the normal order of businesses, establishments or organisations, causing disruptions to production, business, healthcare, education or research, but without having caused serious damage, are punishable by a period of administrative detention of less than 15 days and an administrative fine of less than 200 yuans (about ten Euros).

In our opinion, it is clear that the workers’ wrongful actions did not cause a serious enough disturbance of the social order, and that they did not cause any serious damage to the hospital either. The criminal rather than administrative sanctions reflect the extremely repressive attitude of the local government towards labour activism. Nonetheless this criminal judgment is a rare case in the last decade.

It is highly likely that the criminal repression of workers in the event of a similar conflict would have been one of the solutions chosen in the 1990s. But in the absence of public reporting, we cannot exclude or confirm it. At the end of the 1990s or the beginning of the 21st century, it was revealed verbally that the leaders of spontaneous strikes or organisers of demonstrations were charged with the crime of provoking disorder under Article 293 of the Criminal Law. However, in the last decade, there have not been any criminal judgments inflicted on workers involved in a collective dispute. For example, in the few conflicts where workers’ actions have disrupted local public transport, no criminal action was taken against them. In another case in Guangzhou in 2014, when worker WU Guiju risked a criminal sentence, following the above-mentioned judgment, in the end the local prosecutor withdrew the criminal charge of «gathering a crowd and disturbance of public transport» under Article 291 of the Criminal Law.4

3 Focus on the condemnation of 12 workers: Research on The System of Collective Bargaining (an internal journal available on the website www.jttp.cn), No. 10, p. 7. 4 WU Guijun mobilised workers to claim salaries owing, and for a time the crowd disrupted public transport.

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And yet, sentencing workers to administrative detention in the event of collective conflicts is not a rare occurrence5. The police is the main force used to crack down on demonstrations or collective actions in the name of «maintaining stability» and the primacy of the central government.

Through these facts, we can see that the court and the prosecutor have shown a wavering attitude to collective conflicts. Basically, they are not adopting a clear position on this use of criminal repression for workers claiming that their interests be protected. They therefore seem to us to be rather ambiguous with regard to the attitude of the local government.

But the case we are concerned with here constitutes a case apart because the social impact is actually less serious than the disruption of public transport.

II - Strikes and collective bargaining: what does the future hold?

This criminal conviction in essence reveals two legal problems in Chinese labour law: on the one hand, the failure to recognise and guarantee the right to strike or workers’ right to take collective action (A), and on the other hand the absence of a collective bargaining mechanism (B). A - Concerning strikes

Given the silence of the current Constitution on the right to strike and the absence of a trade union right to call strikes, the way the government reacts when spontaneous strikes occur still remains a tricky subject. The question of workers’ behaviour also remains equivocal.

Indeed, this constitutional silence can potentially give rise to two types of government reactions in the event of a strike, possibly accompanied by wrongful or illegal actions: either a criminal penalty, in the event of illegal actions it can prove, or non-intervention or orientation towards a dialogue between the company and the strikers. The precise choices in practice tend to be made on a case-by-case basis, which reveals a randomness in the government’s strategy.

In practice the possibility of criminal repression in China is obviously reminiscent of the criminal penalties applied to trade union actions in Western history. These criminal penalties against strikers in China are genuinely absurd in the modern context where the concept of Human Rights has developed.

As for the employees, they are not very well informed on the matter: what can they do to claim their rights or defend their interests? This ignorance among workers can lead them to commit offences: they have no idea of where the limit lies. In addition, we have observed reprisals by companies following spontaneous strikes, in particular the dismissal of the strikers on the grounds of non-compliance of the workers’ behaviour with company rules. The result is that the situation concerning strikes is rather confused. Without a reasonable framework, taking strike action can lead to dangerous consequences for workers.

The unrelenting growth in the number of collective conflicts has put the spotlight on these issues. But we observe that central government is far from ready to legislate on either the right to strike or collective bargaining.

It is difficult to change the ideological thinking that was attached to the idea of the strike at the time the Constitution was adopted in 1982. There are four ideas involved. First of all, the strike, qualified as the final resort for workers to put

5 For example, according to the lawyer of the DUAN Yi workers, in 2014, at least 1,000 workers were detained by the police. A report on the website (www.jttp.com.cn) revealed that on 5 January 2015, six workers demanding their pay and social contributions were detained by the police.

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across their demands, was considered as a capitalist phenomenon, pertaining to antagonisms specific to capitalist society. On the contrary, the socialisation of the means of production and trade naturally leads to the disappearance of labour conflicts, since their cause, class antagonism, has disappeared. What is the point of stopping work since the workers have become the “masters of the country and the factory”? They do not need to strike as it would be detrimental to the interests of the people and their own interests. Secondly, workers can use other means to express their grievances against bureau- cracy, rather than starting strikes. Thirdly, the strike, as a harmful action, can cause economic and social disruption by undermining the stability of society. Finally, if the citizen were given the right to strike, it would be exploited or manipula- tedby dissidents to the detriment of social stability or the maintenance of the political regime.6

If the first two of the ideological considerations above are no longer in line with the current reality concerning businesses or Chinese economic circumstances, the latter two have not been abandoned by the Chinese government.

We note that this situation of non-permission, and also the non-prohibition of strikes, naturally leads to an extension of the discretionary powers of the employer, insofar as the latter can ban strikes via discipline at work or company rules that require that employees do not leave their workstation, or do not leave it without a reasonable excuse, or without first obtaining the employer’s permission. Employees who are on strike are considered as having left their workstation without permission, which therefore means they have infringed the company rules, which then leads to their dismissal.7 According to information from lawyers who have defended people dismissed in this way before the labour arbitration committee or the courts, such dismissals have always been confirmed by the arbitrators or judges.

Consequently, the constitutional silence on strikes opens the door not only to criminal proceedings being taken by the local government, but also the reinforcement of the employer’s powers over the conduct of the employees in companies. B - Concerning collective bargaining

Many labour conflicts have shown that there is a lack of a legal mechanism for resolving collective conflicts: these are due to multiple causes, such as the change in the legal status of the companies, the infringement of regulations on salaries, social contributions, etc.

Collective bargaining in China has remained in the experimental phase for about a decade, and there are still no plans to make it compulsory in companies. The official model of encouraging collective consultation - the term sounds more har- monious than that of collective bargaining - is a top-down model, operating via administrative tasks entrusted to the union federation of each grade in companies where there is a union committee. Although some 80% of companies have a union committee,8 this official model has proved to be very superficial, as it does not serve to improve working conditions, even when a collective labour agreement is signed. At the same time, a spontaneous model can be observed, established by labour protest actions: workers are calling for dialogue with the managements of companies to negotiate salaries, social conditions or redundancy compensation, etc. But there are still few examples of this model, as these calls by workers to have their claims heard are often refused by companies. It has been observed that companies’ refusals have led to numerous strikes and collective conflicts over the last two years.9

In the absence of any obligation for companies to engage in collective bargaining, calls to do so from employees or their representatives are rejected by the company. The same applies to certain official union committees, in the case of

6 A. Zheng, Libertés et droits fondamentaux des travailleurs en Chine, l’Harmattan, 2007, p. 164-165. 7 Many cases of dismissal following strikes have been reported on the website www.jttp.com. 8 Report by the All-China Federation of Trade Unions at the end of 2014. www.acftu.org. 9 The reports are permanently accessible on the website www.jttp.cn.

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private companies. This situation actually reflects the precise spirit of the legislation. Workers’ collective bargaining rights are not confirmed anywhere, neither in the labour law of 1994 nor in the 2004 regulations on collective labour agreement, nor even in the special chapter of the 2007 law on employment contracts.

At national level, there are still no plans for legislation on these rights. But it is likely that there will be attempts or exceptions in the provinces. This is precisely what happened recently with the regulations in the province of Guangdong, in the south of the country. The Guangdong Regulations on Collective Contracts, adopted in September 2014 after a compromise was reached, came into force on 1st January 2015 and provide that companies must respond within thirteen days of receiving a written call by the union committee for consultation on various subjects, and that both parties must start the consultation within three months of receiving one party’s written request. This right to issue a written call for collective consultation is also granted to the employer. When one party issues a call in writing, the other party cannot refuse the consultation.

Although the recognition of the right to collective consultation by these provisional regulations constitutes a measure of progress, it has to be noted that the other clauses in these regulations remain very sober when it comes to the exercising of that right. For example, it does not provide for any consequences for a company that refuses to dialogue with the union or the employees’ representatives. The consultation must take place in accordance with the principles of peaceful and reasonable dialogue. For any conflicts arising out of the collective consultation, both sides must accept the conciliation of the higher union federation or companies’ association, or even the local labour administration. Employees are prohibited from infringing the labour discipline rules, from persuading others to leave their workstation, from interfering with public transport, from undermining the normal order of production or the operation of the company or social order. It is clear that neither employees nor the trade unions have a right to strike during the collective consultation.

Conclusion

The legislation lags behind developments in collective labour relations, a situation that currently coexists with the more and more frequent occurrence of collective conflicts, or cases of workers expressing their grievances, particularly in the south of the country. Perhaps these events are not yet sufficient to close this gap? How much more blood, sweat and tears must workers shed before achieving that?

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Employer's implied duties and judicial creation: Contrasting examples in comparative law*

A l l i s o n Fiorentino Lecturer at the University of Clermont-Ferrand Center of research Michel de L'Hospital (EA 4232)

T h e i m p l i e d d u t y o f m u t u a l t r u s t a n d c o n f i d e n c e i n B r i t i sh l a w : A n e x a m p l e o f j u d i c i a l c r e a t i o n

he British doctrine is in liveliness when it evokes the duty of mutual trust. It was described as “assuming a central position in the law of the contract of employment »"1, “undoubtedly the most powerful engine of movement in the modern law of employment contracts"2 or “the cornerstone of the legal construction of the contract of employment"3. Many famous academics devoted even articles to him4 mimicking the judicial interest for this duty Tof mutual trust.

* Please notice that the entire "Comparative Labour Law case" Section entitled "Employer's implied duties and judicial creation: Contras- ting examples in comparative law" is not fully reproduced below in this English Electronic Edition but can be found in the French print issue: see Jurisprudence sociale comparée "Obligations implicites de l'employeur et création prétorienne : des exemples contrastés en droit comparé", Revue de droit comparé du travail et de la sécurité sociale, 2015/2, pp. 99-125.

1 D. Brodie, «Mutual Trust and the Values of the Employment Contract», Industrial Law Journal, 2001, vol. 30, n°1, pp. 84-100, spéc. p. 86. 2 M. Freedland, The Personal Employment Contract, Oxford University Press, 2003, p. 166. 3 H. Collins, Employment Law, Oxford University Press, 2003, p 104. 4 L. Barmes, «The Continuing Conceptual Crisis in the Common Law of the Contract of Employment», Modern Law Review, 2004, Vol. 67, n° 3, pp. 435-464; D. Brodie, «The Heart of the Matter: Mutual Trust and Confidence»,Industrial Law Journal, 1996, vol. 25, n°2, pp. 121- 136; «Beyond Exchange: The New Contract of Employment», Industrial Law Journal, 1998, vol. 27, n°2, pp. 79-102; «A Fair Deal at Work», Oxford Journal of Legal Studies, 1999, vol. 19, n°1, pp. 83-98; «Mutual Trust and Confidence: Catalysts, Constraints and Commonality», Industrial Law Journal, 2008, vol. 37, n°4, pp. 329-346; A. Brooks, «The Good and Considerate Employer: Developments in the Implied Duty of Mutual Trust and Confidence»,University of Tasmania Law Review, 2001, vol. 20, n°1, pp. 29-69; D. Cabrelli, «The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?», Industrial Law Journal, 2005, vol. 34, n°4, pp. 284-307; M. Freedland, «Constructing Fairness in Employment Contracts», Industrial Law Journal, 2007, vol. 36, n°1, pp. 136-140; J. Lindsay, «The Implied Term of Trust and Confidence»,Industrial Law Journal, 2001, vol. 30, n° 1, pp. 1-16.

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“Discovered” by the case law for the first time in 1978, the duty of mutual trust imposes on the employer honesty in the execution of the employment contract. During a trial opposing the parties of the contract, the British judge scans all the circumstances of the case to deduce from it if the employer disrespects this duty. The case law‘s analysis highlights the will of the judge to sanction an employer who makes impossible the peaceful execution of the contract. “Discovering” an implicit obligation is not recent because by 1938 a British court decided that any employment contract implies the duty to take reasonable care of the employee’s health and safety.5

The British judge intends to remedy a deficiency of the legislator who omitted to impose a necessary mutual respect during the execution of the employment contract. The relation in an undertaking is not comparable to the relationship that exists between two contractual partners of equal importance who do not see each other every day. The daily execution of a work requires a minimum of serenity. Without the help of a textual base,6 the British magistrates had to resort to the technique of “discovering” implied duty when they were confronted with situations in which the employer, by his actions or omissions, prevented the peaceful continuation of the employment contract.

We will first examine the circumstances of this duty’s creation by the case law (I), then give some examples (II) and finish by recalling that this duty is reciprocal and that sometimes the employee himself can be reproached its non-observance (III).

I - Progressive judicial consecration of the mutual trust and confidence duty

Professors Freedland and Kountouris noted in 2011 that the English employment law tends to be perceived like an increasingly specific right.7 This specialization, started by the case law more than thirty years ago, has various implications, the brightest being the “discovery” by the British judge of a mutual trust and confidence duty in every employment contract.8

The first decision which mentions such an implicit duty goes back to 1978.9 The applicant had been an employee of the company for 18 years. His sensitive and irritable nature was manifestly known. He had one day an argument with his manager who told him publicly that he was unable to do his work correctly. Offended by this charge, the employee gave immediately his resignation which was well quickly accepted. Soon after, he claimed damages for unfair dismissal.

That was possible for him insofar as the definition of the dismissal given by the British legislator includes the situations in which the employee had the initiative of the termination because of the employer’s attitude. This category of termination is not called resignation but “constructive dismissal".10 The British legislator by acknowledging the “constructive dismissal’s concept”, prevented the judge from creating the “prise d’acte de la rupture”, which had to be made by the French judge.

In this case, the magistrates could accept the employee’s request only on the assumption that the employer had seriously ignored one of the contractual stipulations. However no express stipulation had been infringed. The second part

5 Wilsons & Clyde Coal Co. Ltd v English [1938] AC 57. In doing so the House of Lords decided to overturn a case law on the employer’s liability (“common employment doctrine”) which allowed the latter to clear himself when he had delegated to another company’s employee with the task of looking after the health of other employees. By that departure from precedent, the House of Lords now imposes on the employer to assume the financial consequences of the damage caused by his negligence when employees suffered an accident. D. Cabrelli, Employment law in context, Oxford University Press, 2014, pp. 174-177. 6 Such as the good faith duty provided for at the article L 1222-1 of the Labor code. 7 M. Freedland, N. Kountouris, The Legal Construction of Personal Work Relations, Oxford University Press, 2011, p. 185. 8 D. Brodie, «Fair dealing and the world of work», Industrial Law Journal, 2014, vol. 43, n°1, pp. 29-51, spéc. pp. 31-33. 9 Courtaulds Northern Textiles Ltd v Andrew, [1979] IRLR 84. 10 This definition is given at the article 95(1)(c)Employment Rights Act 1996.

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of the judicial reasoning was to question itself on the existence of a possible implicit duty. According to the decision such a duty could be recognized only insofar as it was necessary to the validity of the contract. Thus, in the judges’ mind, it was not an incidental duty but of a fundamental one without which no employment contract could exist. In this case, the Court11 concludes that such a duty, which he baptized “mutual trust and confidence”, was infringed. The definition of this duty was the following: “The employers would not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties”.

The employer being aware of the employee’s temper, he could not reasonably believe that his resignation given following the argument was really sincere. To accept such a resignation was a non-observance of the implied duty of mutual trust and confidence. This decision implies a somewhat subjective analysis of the business relation because the judge must take into account several parameters among which the employee’s temper. The 1978 case was the starting point of a flourishing case law.12 Later on, in 1982, it was confirmed by a Court of Appeal’s decision.13 Although the judge did not acknowledge in this case the infringement of the mutual trust and confidence duty, the theoretical existence of this duty was not called into question. The judicial consecration of the mutual trust and confidence did not stop here since judges were confronted with other questions arising from its recognition. Thus, in a decision of April 1985,14 a court had to solve the problem of the compensation which was to be versed in case this duty’s infringement. Hitherto the only decisions which have evoked it related to situations in which the employees claimed constructive dismissal because of this duty’s non-observance. Thus the judge was to determine if this obligation was autonomous or if its violation generated an obligation of compensate. The applicant, an orthopedic surgeon, had been suspended by his employer (a hospital), because of his refusal to undergo a psychiatric examination. It was imposed to him because of a mere letter which it had sent to one of his colleagues criticizing the quality of the research articles published by another surgeon of the hospital.

Hurt by this psychiatric test which called into question his mental equilibrium and which had had repercussions in terms of professional reputation, the applicant resigned and asked damages for violation of the mutual trust and confidence duty. The Court of Appeal granted him a compensation considering that this employer’s requirement and the consecutive suspension following the refusal were insulting and that the defendant had ignored the above-mentioned duty. The British highest court15 expressly recognized the existence of such a duty, conferring this duty an indisputable judicial acknowledgment. In the 1997 case Mahmud and Malik v BCCI 16 the former bank’s executives asked compensation because of the damages inflicted by the bank’s fraudulent acts. The defendant went through a bankruptcy process after serious financial embezzlements which had met a certain echo in the press and had dismissed the applicants. The latter put forward their difficulties in finding an employment because of the opprobrium attached to their quality of this bank’s former employees. The House of Lords accommodated their request and granted them damages to compensate the professional injure resulting from the scandal which had splashed their reputation and ruined their credibility.

11 In this case the Employment Appeal Tribunal. 12 This duty of mutual trust is gone down in history as the great creation of the court which handed down the judgment. In fact, the judge who presided over the Employment Appeal Tribunal had long officiated in a chamber especially competent on family law matters (Mr Justice Arnold). The idea of creating this implied duty was suggested to the judge by the plaintiff’s lawyer, Ian Hunter, nowadays known arbitrator in commercial matters. F. Reynold, «Bad behaviour and the implied term of mutual trust and confidence: is there a problem?»Industrial Law Journal, 2015, vol. 44, n°2, pp. 262-269, spéc. p. 264. 13 Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693. That court is not comparable to a French “ cour d’appel ”. This is a higher court which rules on appeals of decisions handed down by the Employment Appeal Tribunal. There is only one Court of Appeal for England and Wales. 14 Bliss v S. E. Thames Regional Health Authority, [1985] IRLR 308, [1987] ICR 700. 15 Until the reform operated by the law Constitutional Act 2005 it was the House of Lord. It is now the Supreme Court. 16 Mahmud and Malik v BCCI [1997] ICR 606.

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II - The multiple illustrations of this duty

This mutual trust and confidence duty should not be interpreted in a broad sense. It is neither an English equivalent of the good faith duty, nor a general obligation to act in a reasonable way.17 The judge takes into account the employer’s beha- vior and determines if this attitude resulted in a breach of the mutual trust and confidence duty between the partners of the employment contract. Many decisions reached the conclusion of the mutual trust and confidence duty’s infringement. Some illustrations can be given in example:18

- The unjustified suspension.

To suspend a wage-earner, employed in a reception center for people in difficulties, by calling upon a charge of sexual assaults on the accusation of the victim can characterize such a failure. Thus in the decision Gogay v Herts,19 the judge accused the employer to have taken into account only the complaint of the victim without even listening to the employee’s version of facts. The latter had been deeply wounded to be suspended (without pay) for such a charge which appeared false thereafter.

- To put pressure on employee in order to force him to resign.

The decision Billington v Michael Hunter & Sons Ltd 20 is only one of the multiple illustrations on this situation. The employer had convened an employee by threatening him with disciplinary dismissal if he did not resign. The employer spoke about vague charges and incited him to choose the “consensual way” of resignation. Such an attitude is likely to destroy the trust relationship between the employment contract’s parties.

- To use an offensive language.

One of the illustrations most frequently found in case law is the employer’s use of wounding or humiliating words particularly in public. The employer ignores this duty not only when he employs a foul language but also when he denies an essential employee‘s quality. Thus in the case Hilton v Shiner Builders Merchants 21 an employee with more than 20 years of seniority was bitterly reproached for forgetting to establish invoices for the sold objects. Obsessed with the sale, he endeavored to seduce the customers, boxed the money but often forgot to establish the invoice.

Irritated, his employers notified him a change in his work’s position for the following reason “you are unable to hold a position of trust”. Wounded by this assertion, the employee asked compensation, granted by the judges. Indeed the employee had never been dishonest and to deny him a position of trust is an insult to his probity.

- Not sufficiently taking into account the employees’ psychological equilibrium.

Introducing this example this way could result in thinking that the employer is debtor of a very broad form of obligation to take care of the good atmosphere in the company. It is completely wrong. This expression relates only to some very particular situations in which an employee is confronted with an oppressive atmosphere of work without being able to put forward the existence of harassment. By way of example one can quote the 2010 decision Nixon v Coates.22 A pregnant

17 D. CABRELLI, «The hierarchy of differing behavioural standards of review in labour law», Industrial Law Journal, 2011, vol. 40, n°2, pp. 146-180, spéc. p. 152. 18 This list is by no means exhaustive. 19 [2000] I.R.L.R. 703. 20 [2003] UKEAT 0578 03 1610. 21 Hilton v Shiner Builders Merchants [2001] IRLR 727. 22 Nixon v Coates [2010] (UKEAT/0108/10/ZT).

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employee had been forced by her employer, after an absence, to return working in an office occupied by employees who spread defamatory rumors as to the paternity of the expected child. The employee exhausted by this noxious environment and her painful pregnancy left her employment and requested damages for unfair dismissal. The grounds of her claim were the harassment and the fact that the employer’s failure to his mutual trust and confidence duty. If the first ground of the request was rejected by the judge, he agreed with the second one.

Another example can be found in the 2011 decision Bailey v Alexander House Agencies Ltd.23 A female wage-earner had an argument with a male colleague. The latter threatened her verbally and physically. Without being violent he was extremely intimidating for the employee who burst into tears and was so much disturbed that she obtained a sick leave by her doctor the very same day. She immediately informed the employer of this incident. He did not pay any attention to the employee’s complaint and constrained her to work again with her violent colleague. Her fear was however so strong that she refused to get back to work and left the company. In this situation the judge criticized the employer for not having taken into account the psychological equilibrium of the wage-earner who was really terrorized.

The judge takes into account all the facts of the cases. Consequently, he will be prompter to blame an employer for the failure of this duty when the employee is in a state of psychological vulnerability. Thus in a 2013 24 decision, the Employment Appeal Tribunal came to the conclusion of the mutual trust duty’s infringement when an employer refused to grant to an employee the right to be accompanied during a meeting with her manager. It was by no means a disciplinary hearing for which the assistance by another employee or a union representative is mandatory.25

Thus the employer was not legally bound to accommodate her request. However the employee was extremely anxious with the idea of this meeting. She returned from a long sick leave and had put forward to her employer her anguishes by requesting this accompaniment. She had requested that on several occasions and had even produced a certificate of her attending physician attesting that the mere idea of going to the hearing on her own distressed her. The employer refused to grant her this simple right and the judge decided that this managerial attitude broke the trust bound between the contractual parties. The employer should have accepted this request which was not a simple whim.

III - Reciprocity of the duty

The name of the duty indicates that it falls on the two parties. Consequently even if the debtor most frequently sued in court is the employer that can also be the employee. If the latter ignores this obligation he can be dismissed. Case law admits in certain cases the redundancy without notice when the employee’s failure seriously damaged the company’s brand image.

In october 2010 26 an employment tribunal decided in favor of the employer because of the employee’s grotesque attitude who, by his poor taste jokes, had blacken the company’s reputation. The director of a prestigious pub was hitherto an estimated employee. One day he was filmed by cameras of national television, on his workplace. He we carried in a large dustbin that one of his female colleagues pushed and from which she made him fall. Slightly wounded, the employee was immediately comforted by his colleague who employed in front of the camera (and a hilarious public) “affectionate” ges- tures on certain intimate parts of his anatomy. The employee complained by no means. This misdemeanor was severely judged by his employer who had to undergo sarcastic remarks from several of its customers who happened to be social networks’ followers.

23 Bailey v Alexander House Agencies Ltd [2011] (UKEAT/0181/10/DM). 24 Saint Francis Hospice v Burn [2013] (UKEAT/0486/12/BA). 25 Employment Rights Act 1999, art. 10. 26 Adamson v Mitchells & Butlers Retail Ltd ET/1502919/09.

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The employee was dismissed without notice and this sanction was considered justified by the tribunal which considered that the incident had strongly harmed the trust relationship which must exist between the contractual parties. The employee being the only guilty party of this degradation his immediate dismissal was an appropriate measure.

The consequence of this duty’s infringement by the employee is not necessarily a dismissal. That can also result in other measures. A more recent example is given in an October 23rd 2014 27 decision. A derivatives broker had very high wages but, because of his very significant position in the company, his employer had required from him a 12 months’ notice in case of resignation. Disgruntled of his job, the employee notified to his employer the immediate termination of his employment contract and in spite of the employer’s repeated injunctions summoning him to return to work; he signed another employment contract and exerted the same employment in a concurrent company. The former employer took this case to a court in order to obtain an injunction preventing the employee to work for a competitor during the notice’s length.

The employer on the one hand did not pay any more the employee but on another hand he also wished his employee not to be able to work for a competitor. The employee lost any source of income. However the British judge agreed to the employer’s conclusions by recognizing that the employee’ attitude translated an obvious ignorance of his mutual trust duty. The Court paid attention to the circumstances of the case. The employee had a high social position and an important estate which put him safe from misery in spite of the prohibition to work for a competitor. Moreover, it was illusory, considering the infringement of the duty, to hope that the employee peacefully returns to work for his former employer.

Conclusion

The mutual trust and confidence duty is one of the most remarkable judicial creations of the British labor law. Fol- lowing the example of the French judge who “discovered” an obligation of safety of result in the famous “asbestos” decisions of February 28th, 2002,28 the British magistrates used of the concept “of implicit obligation” to force the employer to act in a more honest way. Although there is no article 1135 of the Civil code29 equivalent in the United Kingdom, the judge wisely decided, within the framework of his power, that it belongs to him to repair both the lapses of the legislator and the contractual parties. An impartial third part is sometimes necessary to rebalance the conventional relation so that the contractual bond does not change into chain to the detriment of the most vulnerable party.

27 Sunrise Brokers LLP v Rodgers [2014] EWCA Civ 1373; D. CABRELLI, « The mutuality and enforceability of the employment contract: Sunrise Brokers LLP v Rodgers », Edinburgh Law Review, 2015, vol. 19, n°2, pp. 280-284. 28 Cass. soc., 28 févr. 2002, no 99-17.201, no 00-13.181, no 00-13.174, no 00-13.175, no 00-13.176, etc. 29 « Agreements bind not only as to what is therein expressed, but also as to all the consequences that equity, usage, or law impose upon the obligation according to its nature».

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119 international legal news ARGENTINa

JUAN PABLO MUGNOLO University of Buenos Aires

The Supreme Court intervention over collective labour issues was very important in the last decade when the legal unions system received a strong objection from the highest tribunal. That objection concerning on violation over the freedom of association was based on the denounces of the supervisory bodies of the International Labor Organization (ILO) which for decades now point out the incompatibility of the Argentine union regime with the Constitutional mandate and the ILO Convention 87, and request its reform.

The Argentine regime appears to allow the creation of all the unions that the workers consider to be suitable, but only one of them -the one with the largest number of affiliated and therefore contributor members in its field - can carry out the main functions of union representation (“most representative union”, status reached by the trade union that can exhibit at less a 20% of affiliated workers in the category). That particularly of the system its call into question: the excessive empowerment of the union considered as the “most representative”, since it limits any possibility of real pluralism. It happens, in fact, that when the “more representative” union monopolizes the powers given by the trade union status, the interest of the workers to constitute minority unions or to affiliate to them becomes illusory; deprived of powers that give them sense, the potential existence of such unions turns to be very unlikely1.

That incompatibly between Argentine union regime with the Convention 87 was marked by the Supreme Court in different decisions in the last decade: against the exclusive protection for unions leaders only who belong to the most representative union, and in the same line, against the reserves the exclusive representation of workers for the most representative union.

In the last months, the Supreme Court has realized two public audiences’ about labor collective issues. The first one, was concerning about the right for association for policeman unions. The second audience regarded on the ownership of the right to strike. In spite of the irresolution - until today – of those particular both cases, the audiences were important because the attending of different persons and their positions over each matter (amicus curiae) before the final decision of the Tribunal.

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The Supreme Court treatment over this subject is very important in 1 Cfr. Adrián Goldin, “La centrali- Argentine because by the very first time since the legal union system sation imposée de la représentation was established (in mid-XXth century) it was never objected despite of par les syndicats en Argentine et au its clear incompatibilities with freedom of association. Brésil”, in La représentation collective des travailleurs, Marie-Ange Moreau, Dalloz, Jully 2012. I - Social Protection

The Parliament passed a bill which stablished the mobility of Univer- sal child allowance, allocation pregnancy and families’ allowances. This decision tries to protect those social allowances from the inflation effects fixing an automatically readjustment every six months. In the particular situation of Universal Child Allowances, was important the legal reinforcement through legislation because before conversely it was regulated by a simple decree.

II - Wage bargaining and labour conflicts

Most wage bargaining finished in April. It was - as the last years - carried through an increasing inflation in the first quarter. Because of that, the collective bargaining made focus in the salarial issues and no so much over other works conditions.

Another important fact which contributes to the labour conflictive situation in the last years is the unions´ claim for the diminution or directly the abolition of taxes on salaries. In a lot of cases, the increase of salaries is nullified because of this tax. Most unions agreed on another general strike in 9 June to ask the government for a solution. The workers´ support to the general strike was high but the government has not come up with any proposal regarding this topic so far.

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123 AUSTRALIA

SHAE Mc CRYSTAL Faculty of Law, University of Sydney

1 See Joellen Riley, ‘Mutual Trust The High Court of Australia has recently made two decisions of great and Confidence on Trial: At Last’ importance in Australian labour law. Both cases are retrograde steps, (2014) 36 Sydney Law Review 151. denying Australian workers essential protections in contract and in Sta-

2 [2014] HCA 32. tute.

3 Ibid [18]. In England, the courts have recognised an implied right of ‘mutual trust

4 Ibid [40]. and confidence’ in employment contracts, a right which has provided En- glish employees with a measure of protection against arbitrary treatment from their employers during the course of their employment. In Australia, it had been accepted in a number of lower court determinations that the implied right was also a part of the common law of Australia.1

In Commonwealth Bank of Australia v Barker,2 this proposition was una- nimously rejected by the High Court, which found that the implied right was not a part of Australian law and should not be accepted as such. Referring to the development of the right within the statutory context of the English laws of constructive dismissal, the High Court noted the differential development of Australian labour laws, observing that ‘Australian judges must “subject [foreign rules] to inspection at the border to determine their adaptability to native soil”.3 In the course of this ‘inspection’, the High Court found that the implied duty of mutual trust and confidence did not pass the test of ‘necessity’ for its implication within an employment contract. Furthermore, the court noted that the implied term raised ‘complex policy considerations’ that meant it was a matter more appropriate for Parliament.4

While the High Court did leave open the possibility of an implied duty of good faith in employment contracts, and confirmed a duty of ‘co-operation’ in contract performance, the decision is disappointing. In deference to Parliament, the court has refused to recognise an implied term that, in England, has operated to strengthen the position of employees in the face of a number of implied contractual terms that favour employers (including the duty of fidelity).

In the course of the judgment, the High Court noted that Parliament could choose to enact a statutory obligation of mutual trust and confidence, which would be given content through decisions of Australian courts. However, the next decision under discussion does not inspire confidence in terms of how any such statutory enactment would be interpreted.

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5 In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, the 5 [2014] HCA 41. High Court by majority found that a worker who had been dismissed for holding a placard on a picket line referring to workers who crossed the picket line as ‘scabs’, was not dismissed by reason of the worker’s involvement in ‘industrial activities’ which were protected under the Fair Work Act 2009 (Cth) (FW Act). Even though the worker was engaged in lawful industrial action and taking part in an otherwise lawful protest as part of a picket line, the dismissal of the worker was lawful and could not be challenged through the laws designed to protect workers from anti-union discrimination.

The FW Act purports to protect workers (employees and independent contractors), employers, and their organisations from ‘adverse action’ on the basis of membership in an industrial association or participation in industrial activities. FW Act s 346 provides that a person must not take adverse action against another person because the other person is a member of an industrial association or engages in an industrial activity. An industrial activity includes participating in a lawful activity or advancing the views of an industrial association (FW Act s 347).

The FW Act explicitly protects workers from dismissal for participating in lawful industrial action, lawful union activities or advancing the views of an industrial association – all protections which appear to extend to participation in a picket line. However, the protections did not apply here because of a finding of fact that the decision maker who dismissed the worker took the ‘adverse action’ of dismissal because of the worker’s use of the word ‘scab’ which was ‘unacceptable behaviour’ for a company worker and contrary to company policies which required employees to be ‘polite and courteous’ to each other. The High Court, by majority, found that as the decision maker did not dismiss the worker due to participation in the picket line or for advancing the views of the union concerned, but for acting in a manner contrary to the company’s code of practice, the adverse action had not been taken for a prohibited reason.

This decision empties all content out of the protection of the principles of freedom of association. If otherwise lawful conduct on a picket line can be severed from protection of the right to protest, and employers themselves can characterise the workers conduct as ‘discourteous’ and therefore ‘sackable’, the protections are meaningless in the face of any employer with an ounce of legal advice and the ability to characterise their decision as motivated by anything other than the worker’s participation in lawful activities.

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125 AUSTRALIA

SHAE Mc CRYSTAL Faculty of Law, University of Sydney

1 Aurizon Operations Ltd [2015] Collective bargaining for most Australian employers and employees is re- FWCFB 540. gulated by the Fair Work Act 2009 (Cth) (the FW Act). Employers may make ‘enterprise agreements’ with their employees. Enterprise agreements are negotiated by bargaining representatives, but ultimately are voted on by the employees who will be covered by the agreement. If a majority of those voting are in favour of the agreement, the agreement is ‘made’.

Once made, agreements are lodged with the Fair Work Commission (FWC) for approval. Approval depends upon the agreement leaving the relevant workers ‘better off overall’ than they would be under the safety net terms and conditions set out within any relevant ‘modern award’. A modern award is a statutory instrument establishing a safety net of minimum terms and conditions for employees working in a particular occupation or industry. In industries with a history of low pay and weak collective bargaining, employees generally receive safety net wages and conditions. However, elsewhere, collectively negotiated wages and conditions provide substantially increased wages and conditions for workers.

Once approved, an enterprise agreement will continue in force until such time as it is replaced by a later agreement. While an agreement may ‘ex- pire’ in the sense that the ‘no strike’ period passes, an expired agreement continues in force. An agreement will only cease to operate if it is ‘terminated’ by the FWC on application by one or both of the parties. Where an application to terminate is consensual, this is not controversial. However a party to an enterprise agreement (an employer, employees or a relevant trade union) unilaterally may seek termination of that agreement once it has expired. Such termination will remove from the relevant employees the benefit of the collectively negotiated conditions, leaving them subject to their contractual conditions and safety net entitlements. The FWC must terminate an agreement if it is satisfied that it is not contrary to the public interest to do so, and it considers it appropriate to do so taking into account the views of the relevant parties and the likely effect of termination of the agreement (FW Act s 226).

Termination of an existing agreement during collective bargaining potentially can have a significant effect on the power dynamics within negotiations. Employees negotiating against the terms of an existing agreement are in a stronger position to retain previously won gains than if an existing

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agreement was terminated. Termination would leave them reliant on their 2 CEPU v Aurizon Operations Ltd contractual conditions and safety net entitlements during the bargaining pro- [2015] FCAFC 126. cess. Further, as new agreements can only be made through a vote of affected employees, the context of the vote would be radically changed. Instead of a ‘no’ vote meaning continuation of the terms of the preceding collective agreement, a ‘no’ vote would mean continuation of the reduced employment conditions, a situation which enhances the position of the employer at the expense of employees.

Given such considerations, the federal tribunal and its predecessors historically have approached unilateral applications to terminate collective agreements cautiously, and decisions have taken into account the objects of the FW Act, including the legislative emphasis on facilitating and encouraging enterprise level bargaining, and the making of collective agreements. This had been interpreted as suggesting that the public interest lay in the preservation of existing agreements to promote continued collective bargaining.

However, in a recent Full Bench decision, the FWC abandoned this approach, finding that the preservation of an existing agreement in the face of an application to terminate was not encouraged by the objects of the Act, and therefore it could not be presumed that the public interest weighed in favour of the preservation of agreements. It then proceeded to terminate 12 enterprise agreements that were being renegotiated.1 This decision was upheld on appeal by a Full Federal Court which found that ‘there is no indication in the FW Act that the existence of a previously-negotiated enterprise agreement should, a priori, be regarded as providing particular encouragement to collective bargaining’.2

The impact of these decisions remains to be seen. The FW Act requires the FWC to be satisfied that it is appropriate to terminate an agreement on the unilateral application of one of the parties to the agreement, and this provision may assume some prominence in protecting the bargaining position of employees. However, there is also a very real chance that the power of employers at the bargaining table in Australia has been enhanced considerably and that the FWC may see many more applications to terminate agreements brought by employers seeking leverage at the bargaining table.

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127 BULGARIA

Yaroslava genova « University of Plovdiv Paissii Hilendarski »

After the early parliamentary elections in result of the resignation of the Socialist prime minister, the National Assembly was summoned in the end of October 2014. The newly-elected Cabinet, which was supported by wide but not stable parliamentary coalition of right-wing democratic parties, ever since the beginning of its term of office continues to encourage the trilateral social dialogue on the issues of the pension reform. Unlike the 2011 reform this time it included not only issues about the increase of the retirement age and about the period of insurance, but also more than 30 complex measures in different areas of the Bulgarian pension system, including the general pension insurance and supplementary pension insurance.

The Socialist partners agreed to finish the consultations on these measures in the beginning of March 2015 but this didn’t happen. Even though the government introduced an amending bill in the Social Insurance Code and the Minister of Labour expressed his optimism that the Act may be voted in the end of May.

Before the great reform to take place, another amendment was introduced in the Social Insurance Code, which entered into force on 1st January 2015. It contained some very bold novelties which were about to make way to future more radical measures.

First, employees, working not more than 5 days or 40 hours in a month, who traditionally were insured only for professional risks and for pension, were included in the category for the insured for all risks in the State social insurance. Maternity benefit is estimated on the base of the income from the last 24 months instead 18 months. Pension for disability due to a general disease is granted upon a period of participation in the insurance but on condition that two thirds of this period is connected with an actual labour. The social pension for disability shall not be accumulated with none of the other kinds of pensions.

Social pension for age in 2015 was the same as in 2014 – 60 years and 8 months for women and 63 years and 8 months for men, but with 8 more months is increased the period due of insurance - 35 years of payments for women and 38 years of payments for men. This is the way how the application of rules for granting pension introduced in 2011 was continued, which were ‘frozen’ in 2013 and 2014.

Professional pensions for early retirement will continue to be paid by the National Insurance Institute in 2015, because the Professional pension funds, which are the second pillar in the pension system haven’t accumulated the financial resources in order to pay pensions.

Finally two very contradictive novelties:

First, for the second time an attempt was made to criminalize the non-payment of insurance payments, although such a provision, introduced in the Criminal Code in

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2000 was announced as unconstitutional. Now every non-payment of insurance payment which amounts more than 3000 leva (1500 euro) is punished with a fine (minimum 2000 leva), or with imprisonment of up to 5 years. The punishment is higher if the debt is over 12 000 leva. The payment of insurance payments due along with the interests until the end of the trail may lead to the sanction being decreased. The insured persons themselves are not criminally responsible.

The second pillar of the pension system is based on a capital principle and it was mandatory to all insured persons, born after 31st December 1959. Now this pillar becomes optional. Those, who for the first time start to insure themselves in 2015, have one year to decide whether they want to join in this form of insurance. If they don’t express they will in the given period and don’t choose Insurance fund and Pension insurance company, they remain obligatory insured only in National Social Security Institute. And those who are already included in the Supplemen- tary social insurance are entitled to choose to suspend that insurance and to continue to insure themselves only in the first pension pillar.

Exactly this opportunity raises one big question, which must be solved within the future pension reform. The two pillars are financed differently- solidarity principle for the first pillar and capital principle for the second pillar. If one person who is insured in the two pillars up to now decides to remain only in the first pillar, it must be decided what will happen with the sum, accumulated from his insurance payments in the private insurance fund. The legislator decided that these sums will be transferred automatically into fund ‘Pensions’ of the National Social Security Institute, which manages the first pension pillar. This means that the insured person loses the ownership of the sum and finances the solidarity pillar whose budget will be increased for the respective year. This is an act of expropriation even though it happens with the will of the insured person. Where is the logic in all this?

In the beginning of 2015 some changes have been made in the Social Insurance Code which concern the activity of the supplementary social insurance company which are companies dealing with finance investments. They are obliged to develop investment policy for each pension fund, which they manage. Their policy is controlled by the Commission for financial supervision. The companies shall take measures for the management of the investment risk. These changes aim to correspond to Directive 2013/14/EU of the European Parliament and of the Council of 21 May 2013 amending Directive 2003/41/EC on the activities and supervision of institutions for occupational retirement provision, Directive 2009/65/ EC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) and Directive 2011/61/EU on Alternative Investment Funds Managers in respect of over-reliance on credit ratings.

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129 Czech Republic

Martin Stefko Charles University In Pragve

* The article has been written The aim of this short article report is to describe and analyse two impor- and published thanks to the finan- tant adjustments of the Czech welfare state in second half of 2015 and at cial support of the grant project the beginning of 2016. From the Labour law perspective, weird changes in “Soukromé právo XXI. století“ [Civil occupational injuries, measured by Western European traditions, have to Law in XXI Century], identity code be mentioned on the first place. Legislature abolished the Act on occupa- PRVOUK5. tional accidents in 2015. Although it was passed in 2006, the envisioned occupational injury insurance scheme has never been launched because several amendments had continued to delay its effectiveness from year to year. Finally, the Czech legislature preferred to return to the previous regulations that solved remedies to occupational injuries within the realm of labour law. The Czech Labour Code regulates, thus, a civil tort: an employer´s liability for damage caused by occupational injury or disease. It is a no-fault liability inspired by former Soviet regulations and codified in 1960ies of the last Century. This solution was developed in 50ties of previous Century when Czechoslovakia was a Communistic totalitarian state.

Said legislative change could be anticipate from another crude amendment - the resurrection of old tabular method applied for pain and lesser employability compensation. The new Czech Civil Code wished to free courts from tables they had to apply when evaluating individual´s harm suffered on his/her health. The Civil Code established in Section 2958 that harm (pain and lesser employability) shall be compensated in full on the basis of equity (“as it is fair”). In addition, the Civil Code abolished the ministerial decree (Decree No. 440/2001 Collection) that defined the evaluation method based on tables. Despite years of preparation, the officials who prepared the Civil Code, forgot to annul Section 394 of the Labour Code. This provision sets forth that Decree No. 440/2001 Collection shall continue to apply until the Act on occupational accidents insurance comes into force.

The Ministry of Labour and Social Affairs in cooperation with the Ministry of Health issued a declaration that Decree No. 440/2001 Collection shall be applied even in 2014. This declaration was to a certain degree supported by the Supreme Court´s statement that the decree should be respected by courts in civil proceedings. Although the legal situation was not clear, the

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legislation found a solution almost two years later on 26 October 2015 1 In Czech language: nařízení vlády when a new Governmental Regulation on Workmen´s Compensation 276/2015 Sb. o odškodňování bolesti (No. 276/2015 Collection)1 was published. It should be not a surprise a ztížení společenského uplatnění that the old tabular method was upheld to large degree. způsobené pracovním úrazem nebo nemocí z povolání. In 2015, the Ministry of Health established a reform committee, which ambition is to adjust the system of long-term health and social care, strengthen the role of patients, enforcing data infrastructure of the system to measure the effectiveness of health care services and to provide other functions, improving the accessibility and quality of health care and harmonising and providing interoperability for health information sharing.

The most difficult aim seems to be the burning ambition to modify the system of the long-term health and social care to set up measures that ensure efficient and financially sustainable provision of long-term care within the combined area of social and health care. Two possible options are being discussed. The first is a draft of a comprehensive act on long- term care, the second option consists in a draft of an amending act on long-term care (only the purpose, definitions and references to legislative changes in other acts). These issues have been outlined in national strategic documents (e.g., National Action Plan Promoting Positive Ageing for the Period of 2013–2017).

Two spectacular criminal acts in 2014 that resulted in a bloodbath created a unique momentum for authorities to revise the system of psychiatric care. Although the reform had been prepared since 2013, killings committed by mentally disordered people and attention given by media to such acts speeded up preparatory works. In 2015, a strategy for the reform of the psychiatric care has been approved with its specific action plan. The notion is: the prevention is better than cure. Therefore, the psychiatric care shall be transformed from the institutional from into community services; the so-called Mental Health Centres. The approved strategy is being implemented, with funding a new type of psychiatric care and testing at the first pilot centres.

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131 HUNGARY

tamÁs gyulavÁri Catholic University of Pázmány Péter

1 Article 101(1) of Act 1 of In Hungary, the regulation of Sunday work and opening hours of shops 2012, in frorce from 1 July 2012. has been extremely liberal since 1990, when the political changes brought about a fundamental change in this respect compared to the 2 http://www.fbvszosz.hu/ javaslatok-a-vasarnapi-mun- former ’socialist’ rules. The only restriction affected 24 of December, kavegzes-kereskedelemben- when all shops had to be closed after midday. Consequently, the general torteno-korlatozasaval-kapc- practice was, that all shops could be and many were indeed open non- solatban.html (downloaded: 20 stop and/or open on all week-ends. March, 2015). In addition, the new Labour Code, in force from July 2012, contains also 3 http://www.vg.hu/valla- 1 latok/kereskedelem/vidam- a quite liberal provision on Sunday work. Accordingly, work on Sundays lett-a-szombat-446175 (down- may be scheduled within the framework of regular working time, if the loaded: 20 March, 2015). employer generally operates on Sundays by the nature of its business; in seasonal work; if working in continuous shifts; for workers working in shifts; in stand-by jobs; for part-time workers working Saturdays and Sundays only; in connection with the provision of basic public services or transfrontier services, where it is necessary on that day stemming from the nature of the service; in the case of work performed abroad.

Altogether one fourth of the entire Hungarian labour market, one out of the four million people work on Sundays, and about half a million employees work regularly on Sundays.2 Out of this number 226 thou- sand employees work in the affected commercial sector at workplaces employing more than 3 persons.3

The Christian-Democratic Party (part of the government) had submitted a Bill to the Parliament in 2011 on the general ban on openings on Sundays and at night, which was suddenly and unexpectedly passed by the coalition parties. Act 102 of 2014 on the prohibition to work on Sun- day in the commercial sector, fundamentally changes the entire practice of shop openings from 15 March 2015. Strangely, this issue could have been arranged in Act 164 of 2005 on commerce, however, the governmental parties wanted most probably to promote this issue by passing these provisions (only in 9 articles!) in an independant Act.

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The title of the act is quite misleading, since this law: 4 Article 1(1) of Act 102 of 2014. a) regulates only the opening of shops, and does not deal with the rules on working 5 See for example decision No. 41/2009. of the Consitutional Court on Sundays, as they remained in article 101 of the Labour Code (see above); on the equal treatment of employers in a similar case. b) does not affect all shops, but only the ones excluded from the exception, which are the bigger shops, and the big international commercial chains are hardly hit by this 6 http://nepszava.hu/cikk/416126- measure, unlike the small shops; kozvelemenykutatas--nem-ert- egyet-a-tobbseg-a-vasarnapi- c) the ban on opening on Sundays is only a part of the rules, as it also prohibits the nyitva-tartas-korlatozasaval opening of shops on all days between 22 and 06, which fundamentally changes the (downloaded: 20 March, 2015). entire system of non-stop shopping. 7 http://index.hu/gazda- sag/2015/03/13/az_emberek_ Evidently, the exceptions are the key issues of such a regulation and the act contains ketharmada_ellenzi_a_vasarna- three different kinds of exception: pi_zarva_tartast (downloaded: 20 March, 2015). First, there several exceptions based on the special function of the place of the shop, such as airports, railway stations, military bases, world heritage sites, Sunday markets etc.

Second, there are several services, which are allowed on Sundays and at nights, such as flower shops, bakeries, patrol stations, restaurants and bars etc.4

However, the third exception is rather problematic, and even raises doubts concerning its consitutionality5, as it may violate the principle of equal treatment. Thus, those shops are exempted from the prohibitions, which are under 200 sqm, and the person working in the shop on Sunday and at night is the owner of the shop as individual enterpreneur, member of an individual company, 1/5 owner of the operating company or their relative. Interestingly, the main aim of the act is to promote family life, however, this exception allows only family members to work on Sundays.

Beyond the regulatory problems, the public opinion is quite important regarding such an area of legislation, as it firmly affects the lives of all shoppers. According to one survey, 72,4% of the population used to go shopping on Sundays from time to time6 and another survay sais, that two-third of the population opposes this new law.7

English Electronic Edition - 2015/3

133 israel

guy davidov Hebrew University of Jerusalem

Union density in Israel experienced the most dramatic decline in OECD countries, 1 See e.g. Mif’aley Tachanot Ltd. from roughly 85% in the 1980s to 45% in 2000 to 25% in 2012. In response, in the last v. Israel Yaniv, 33 P.D.A. 389 (1996) few years the Histadrut (Israel’s major labour union) intensified its efforts to organize (National Labour Court); Collec- workers in new sectors. At the same time, a new union, Ko’ach La’ovdim (“Power to tive Agreements Act of 1957, as the Workers”), established in 2007, has managed to create grass-roots excitement to- amended in 2001, s. 33h and ff. ward unionism. It appeared that unions were bouncing back, to some extent. However, 2 Collective Agreements Act 1957, employers were not going to accept this without a fight. Many of them have strongly s. 3. resisted organizing attempts, including by using “union-busting” methods imported from the United States. Although the law made it clear, at least since the 1990s, that employers cannot actively interfere with freedom of association,1 in practice this proved very difficult to enforce.

The struggles of the Histadrut culminated in the summer of 2012 with the organizing campaign at Pelephone Communications Ltd., Israel’s first cellular company and still one of the largest companies in the sector, employing some 4000 workers. Being part of the “new economy” service sector, and employing mostly young and relatively edu- cated workers, the cellular sector was highly coveted by the union. The time was also ripe for organizing: wide-ranging reforms introduced by the Government significantly intensified competition in the sector, cutting profit margins and creating an expectation for mass redundancies. Workers were thus particularly in need of protection. The company on its part was fearful of losing managerial flexibility and especially of jeo- pardizing its competitive stance in the non-unionized sector. This led to a bitter fight.

Israeli labour law is based on exclusive union representation but does not set any certification procedures. There is only one simple rule in legislation: to become a representative union, with the power to represent the workers in collective bargaining and strikes, a union must have at least a third of the workers in the bargaining unit as members (and more than any other union).2 In Pelephone, the Histadrut and its supporters therefore had to sign up a third of the workforce, which was not an easy task given the dispersion of workers across the country. After an initial phase of signing some workers covertly, the organizing campaign became public, eliciting a prompt response from the company.

Some of Pelephone’s actions were clearly illegal. For example, some employees were not allowed to talk to union representatives; others were asked by direct supervisors to sign forms revoking union membership. There was no doubt that the law – as in many other countries – prohibits such practices of coercion, threats and intimidation. However, the Histadrut also raised before the courts a more fundamental legal question: are employers allowed to voice their views against unionization at all? Does the law allow an employer, for example, to send workers information about the damage that will happen, in its view, as a result of organizing? Pelephone did all that, extensively.

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In a dramatic judgment, the National Labour Court (NLC) decided that employers are 3 The Histadrut v. Pelephone prohibited from voicing views against unionization.3 Employers have no say whatsoe- Communications Ltd., judgment of ver on this matter; even the delivery of information which they think is relevant or Jan. 2, 2013. missing from the discussion is not allowed. The only (narrow) grounds for exception 4 Coordinating Chamber of Eco- are if an employer believes that the union is making factual misrepresentations; in nomic Organizations v. National such a case, it can petition a labour court and ask for permission to correct this misin- Labour Court, judgment of July 7, formation. But the employer is not allowed to do so without a specific judicial permit. 2014.

5 For a detailed discussion, see The judgment was received by employers’ associations with astonishment and even Pnina Alon-Shenker & Guy Davidov, rage. They filed a petition to the Supreme Court of Israel (SC) to review the decision. Organizing: Should the Employer Recently, the SC decided to affirm the NLC judgment.4 In the meantime, the results Have a Say?, Theoretical Inquiries in on the ground were transformative. Pelephone quickly had to accept the Histadrut and Law (forthcoming 2016). has signed a first collective agreement. The other two major cellular companies in Israel (Cellcom and Partner) soon followed suit. Quickly, successful organizing cam- paigns have spread to insurance companies, financial companies, fast-food chains, and even the information technology sector. Admittedly, the numbers are still not dramatic, but the judgment was nonetheless a noticeable turning point. Although many employers still oppose unionization, and some still fight it fiercely, other employers have internalized the fact that they have to accept the union and work with it. Organi- zing a new workplace is still a challenge, but it is much more realistic.

The judgments of the NLC and the SC are both based on an analysis of the conflict between the workers’ freedom of association and the employer’s freedom of speech. Despite claims by the employers’ associations that a flat ban on employer speech is unprecedented world-wide, the NLC preferred to focus on the normative questions. It realized (rightly in my view5) that as a matter of practice, the prohibition on threats and coercion was not sufficient to make organizing a realistic possibility. The inherent vulnerability of workers in the employment relationship means that views expressed by the employer are never just informative; they are also, at least implicitly, tanta- mount to a command/threat. In a sense, the judgment created an unrebuttable legal presumption that any expression by the employer in the context of organizing is coer- cive. The NLC emphasized the decline in union density and the growing difficulties faced by workers when attempting to organize. In light of the context of this new reality, it concluded that less weight should be given to employers’ freedom of speech.

The SC agreed, affirming the judgment, although it noted that a flat ban could be too extreme, and perhaps more room should be left for employers to responds to unfair statements by unions. Otherwise put, the SC hinted that the presumption should be more open to rebuttal in its view. However at the end of the day it deferred to the NLC, leaving such questions for future consideration. The strong statement of the law against anti-union speech by employers, as expressed by the NLC, still stands.

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135 italy

alberto mattei University of Verona sylvain nadalet University of Verona

In the first months of 2015 in Italy there has been a focus of attention on the Jobs Act, which is going to be adopted in the next few months. In addition, attention has been paid to measures on decontribution.

Firstly, law no. 183 of December 10, 2014 was finally approved at the end of last year. This law authorises the government led by Matteo Renzi to adopt legislative decrees on social safety net, employment services and active policies, to reorganise the rules of labor relations and of the inspection and protection and conciliation of care, life, and work needs.

These are several matters of labor law on which the Government is allowed to act within six months from the date of entry into force of the law of December 2014, i.e. by mid June 2015.

At the time of writing this update, two decrees were adopted definitively: decree no. 22 on the reorganization on social safety nets dated March 4, 2015; and decree no. 23 of the same day, on the ‘permanent contracts with increasing protections’.

In particular, decree no. 22 introduces some important measures: the NaSpI, the ASDI, the DIS-COL and the contract of relocation.

As to the individual instruments, the NaSpI (Italian acronym: Nuova Prestazione di Assicurazione sociale per l’Impiego), starting from May 1, 2015, is a monthly allowance of unemployment designed to provide protection support to employees who have lost involuntarily their jobs. It replaces two instruments introduced by Law no. 92 of 2012 (Fornero Reform), i.e. the ASPI (Italian acronym: Assicura- zione Sociale per l’Impiego) and the mini-ASPI (art. 1). The ASDI (Italian acronym: Assegno di Disoccupazione) is an allowance that is introduced on an experimental basis for the year 2015: it is a means of providing income support to those who have benefited from the NaSpI. The employee benefits from ASDI after NaSpI if he does not find an employment and he has a ‘particular need’ (Art. 16). The DIS-COL is a monthly unemployment benefit paid to temporary employees or independent contractors (art. 15). Finally, the contract of ‘relocation’ is a means entitling the dismissed employee to receive from the employment center a voucher that can present to a public agency or accredited private agency. It entitles the employee, among other things, to an appropriate assistance by the agency on seeking new employment. This agency can collect the vouchers only if the worker finds employment (art. 17).

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The second decree approved, no. 23 (i.e. the discussed text on the ‘permanent 1 See S. Scarponi, La dernière contracts with increasing protections’1) is applicable to employees hired in the réforme du droit du travail italien: le private sector after the entry into force of the text (March 7, 2015). It is the nouveau contrat du travail à durée review of the regulation on individual and collective dismissals for these new indéterminée « à protection crois- sante », Mélanges en l'honneur de employees. Pascale Bloch, forthcoming. In particular, apart from discriminatory dismissals, avoid dismissal, oral dismissal, mental or physical disability dismissal or disciplinary dismissal, when the disputed fact is materially non-existent, the reintegration into the workplace is substituted by compensation connected with the length of service (up to a maximum of twenty-four months) for the dismissals that do not use the extremes of objective justification, subjective justification or justified.

The decree also provides for voluntary conciliation allowing the employee and the employer to avoid going in front of the judge: the employer should grant the employee a sum of money in case he accepts to resolve the dispute outside tribunals. Such a sum is not subject to taxation or contribution. In addition, the new rules also apply to ‘organizations of tendency’ (for example: unions and parties).

The new regulation also applies to collective redundancies: if the procedure or the selection criteria are violated, it provides for the application of the compensation regime. As regards small entreprises (up to fifteen employees) for unfair dismissal it is established a growing allowance (up to six months) and there is reintegration only in cases of void dismissal, discriminatory dismissal or oral dismissal.

It should be mentioned a law that touched the labor cost, i.e. the decontribution in the 2015 Stability Law (Law no. 190 of 2014). It provides for a three-year contributory exemption in favor of private employers for permanent recruitment in 2015.

Finally, in the recent weeks, the final approval of the decree concerning the adoption of a comprehensive text on the types of contracts and review of job duties is under discussion. Furthermore, it is under discussion a decree regarding the measures for the reconciliation of the demands of care, living and working.

English Electronic Edition - 2015/3

137 italy

alberto mattei University of Verona sylvain nadalet University of Verona

Recent reform in Italian labor law legislation was led by the Renzi government. The last enactment of the Jobs Act was recently approved and it im- plements the Act no. 183/2014.

The most important changes were introduced by the Legislative Decree 81/2015 which refers to atypical employment. The legislation was redraf- ted into a single text and among the changes, emphasis was placed on the flexibility of fixed term contracts: the ceiling of 20% utilised by the company for the contract period can be waived by a local or company collective agreement. Part-time contract was also subject to reform and flexibility was enhanced, but for the overtime the employee can also reject such employment for specific reasons (example: family reasons). The reform also implemented more flexible rules in regards to elastic clauses in the part- time contract.

For flexible employment contracts accessory employment has been encouraged as the maximum amount has been increased (€ 7,000 a year, € 2,000 for professionals or entrepreneur). One of the most controversial aspects of the reform is the change made to short term contracts as well as and the provision of work “eterorganizzato”, which could give rise to doubts of interpretation in case law. Finally, the contract of apprenticeship was subject to changes especially with regard to its links with the training system.

Other changes were made regarding duties. Article 2103 of the Civil Code allowed the change of the employee’s duties to a position not necessarily corresponding to their professional skills. In particular, this means that with the concept of “equivalence” the employee can be assigned to any job in that specific level of classification, provided that they meet the same category and not just an equivalent duties.

With the Legislative Decree 80/2015 on care needs to reconcile life and work, there is an extension of the right to paternity leave (eg.: self-employed), and on the other side it promotes motherhood. In cases of premature delivery it can exceed the overall limit of 5 months compulsory leave.

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More recently another four decrees were adopted. With the Legislative Decree No. 148/2015 on social security benefits. In the case of suspension of employment for economic reasons, rules were reformulated to incorporate in a single text the regime of devices that allow the company to reduce working hours and for employees to be partially compensated: the “cassa integrazione ordinaria” (economic reasons) and the “cassa integrazione straordinaria” (structural motifs). There are more restrictive conditions, for a maximum of 24 months for a period of 5 years. Moreover, there’s the “contratto di solidarietà”: it is signed between the company and labor union to avoid collective redundancies reducing work hours, or the increase of corporate staff.

The Legislative Decree 149/2015 incorporates into one single agency the Natio- nal Labour Inspectorate. It plans to coordinate the activities of the inspectors with the other supervisory bodies of social security, health and environmental services, in order to avoid duplication of controls.

The Legislative Decree 150/2015 on employment services and active policies designed a new model of labor market to enhance the role of employment cen- ters, which will be specifically instructed to use the “service pact custom”, including training requirements. This will be a requisite in order to access unemployment benefits. In terms of organization, the National Agency for the Occupation (ANPAL), will coordinate active policies between public and private services on the cooperative model. We point out the important innovation represented by the introduction of the system of checks offered to jobseekers (“assegno di ricollo- cazione”) that can be used to get public or private support job seeking support.

Finally, the legislative decree 151/2015 streamlines and simplifies the various formalities for companies in the field of labor relations (eg.: hiring disabled workers, resignation, etc ...) and it introduces the transfer of holiday leave. This gives the employee the opportunity to transfer his permit to colleagues who are absent for particular serious family issues. Finally, regarding controls, Article 4 of the “Statuto dei lavoratori” is subject to amendment: there is no prohibition in the use of audiovisual equipment and other equipment for the purpose of remote monitoring of workers.

English Electronic Edition - 2014/3

139 LITHUANIA

Beata martiŠienÈ University of Vilnius

1 Resolution of Government of the Regulation of labour relations is in the limelight currently in Lithuania. Republic of Lithuania No. 931, 9th Lithuanian Government has declared that flexibility of labour relations is of October, 2013 . Official Gazette, one of the priorities of its actions in 2014.1 Therefore, Lithuanian Ministry 2013, Nr. 110-5442. of Social Security and Labour has decided to organize a group of scientists 2 Labour Code of the Republic of who have prepared Lithuanian social model which should enable accumu- Lithuania. Official Gazette, 2002, No. lation of employment, modernization of regulation of labour relations and 64-2569. sustainability of social insurance. This new legal model is already prepared

3 Explanatory legal act of the and it is considered to be very modern and very liberal. The discussions on addition of Lithuanian Labour it have already started and there are many skeptical and critical responses. Code. 2014-11-03. Access through It is decided to change Lithuanian Labour Law but the decision on how internet: http://www3.lrs.lt/pls/ to do that is not taken, yet. So, Lithuanian legislator must come up with inter3/dokpaieska.showdoc_l?p_ the decision on many crucial Labour Law issues in the nearest future. Al- id=1007075. The date of access is though the most significant changes are about to come, several changes of 28th of April, 2015. Labour Code2 were made from the 1st October 2014 until the 1st May 2015. 4 European Union, Directive 2009/52/EC of the European Par- liament and of the Council of 18 I - Illegal Work June 2009 providing for minimum standards on sanctions and mea- Legal rules on prohibition of illegal work were improved. First of all, liability sures against employers of illegally of the contractor and his subcontractor, who is the employer, for using ille- staying third-country nationals. Offi- gal work was established. This was done in order to implement3 Article 8 of cial Journal of the European Union, the Directive 2009/52/EC of the European Parliament and of the Council of L 168/32, 30 June 2009. 18 June 2009 providing for minimum standards on sanctions and measures 4 5 Law on Labour Inspection. Offi- against employers of illegally staying third-country nationals. cial Gazette, 2003, No. 102-4585. Secondly, Labour Code after the amendments states that the employer in the 6 Law on Unemployment Social case of illegal work must pay the employee his salary. The amount of money Insurance. Official Gazette, 2004, must be the one the parties have agreed but not less than minimum wage. No. 4-26. The duration must be not less than three months, unless proved differently. 7 Explanatory legal act of the Finally, the procedure of individual labour disputes is applicable in the dis- addition of Lithuanian Labour pute between the employer and the illegal employee on payment as well. Code. 2014-11-03. Access through Lithuanian Labour Code and other legal acts (Law on Labour Inspection,5 internet: http://www3.lrs.lt/pls/ Law on Unemployment Social Insurance6) were changed in order to reduce inter3/dokpaieska.showdoc_l?p_ id=486400. The date of access is 28th incentives for employers to use illegal labour without paying taxes, to proof April, 2015. mote fair competition and to ensure workers‘ rights to get fair pay for their work and social security benefits.7

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II - Safety and Health at Work 8 Explanatory legal act of the addition of Lithuanian Labour Code. 2014-11-03. Access Lithuanian Labour Code required the testing of knowledge of every through internet: http://www3.lrs.lt/pls/ employer or his authorised person in occupational safety and health inter3/dokpaieska.showdoc_l?p_id=486400. The date of access is 28th of April, 2015. prior to the commencement of operations of the enterprise or provision of services and at least every five years thereafter. After the recent 9 Explanatory legal act of the addition of changes, two new rules were established. Firstly, the responsible per- Lithuanian Labour Code. 2014-11-03. Access son is the manager of the employer. Secondly, the repeated testing was through internet: http://www3.lrs.lt/pls/ removed. These changes were dedicated to the reducement of admi- inter3/dokpaieska.showdoc_l?p_id=486400. The date of access is 28th of April, 2015. nistrative burden for employers.8 10 Explanatory legal act of the addition of Lithuanian Labour Code. 2014-11-03. Access III - Labour Disputes Commission through internet: http://www3.lrs.lt/pls/ inter3/dokpaieska.showdoc_l?p_id=486400. In order to facilitate the work of Labour Disputes Commission,9 Lithua- The date of access is 28th of April, 2015. nian Labour Code refused a requirement to have a record of the mee- 11 Explanatory legal act of the addition of ting of Labour Disputes Commission. It was replaced with an audio. Lithuanian Labour Code. 2014-11-03. Access The same novelty is introduced to Lithuanian civil procedure at courts. through internet: http://www3.lrs.lt/pls/ inter3/dokpaieska.showdoc_l?p_id=452051. IV - Other The date of access is 28th of April, 2015. 12 Explanatory legal act of the addition of There were some technical changes of Labour Code. Firstly, Lithuanian Lithuanian Labour Code. 2014-11-03. Access Government decided to reorganise Lithuanian Tripartite Council.10 So, through internet: http://www3.lrs.lt/pls/ Lithuanian Labour Code was changed according to the new structure inter3/dokpaieska.showdoc_l?p_id=486400. of Tripartite Council. Secondly, in order to unify the definitions in all The date of access is 28th of April, 2015. 11 legal acts in the sphere of education, Lithuanian Labour Code was 13 The ruling of the Constitutional Court of amended and the unified definitions of „school“ and „pupil“ were used. the Republic of Lithuania on the compliance Finally, some changes of Lithuanian Labour Code were determined of the Appendix (wording of 6 November by Lithuanian Constitutional Court,12 which has decided that the rule 2008) to the Republic of Lithuania’s law on of Labour Code contradicted Lithuanian Constitution on 8 May 2014.13 the Remuneration of Judges and Article The rule stated that the employee should be awarded the amounts of 298 (wording of 4 June 2002) and Article 301 (wording of 26 June 2012) of the Labour work pay and other amounts related to employment relations due to Code of the Republic of Lithuania with the him for not longer than 3-year period. So, this Article of Labour Code Constitution of the Republic of Lithuania. 8 was recognised invalid. May 2014, No. KT17-N6/2014. Register of legal acts, 2014-05-08, No. 2014-05188.

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141 romania

felicia rosioru Babes-Bolyai University

1 The Romanian Labour Code — The most important legislative change in the last six months referred to Law n° 53 of 2003 was published the Labour Code1, amended to bring the national legislation into line with th in the Official Gazette n° 72 of 5 the jurisprudence of the European Court of Justice concerning paid annual February 2003. leave. Previously, the European Commission notified Romania, through 2 In Romania, as a general rule, the electronic system of administrative cooperation EU PILOT, that Roma- sick leave is limited to 183 days/year. nian legislation is problematic from the perspective of the transposition of Article 7 of Directive 2003/88 / EC concerning the implementation of paid annual holidays. Law No. 12/2015 was adopted to remedy these transposition deficiencies, in particular to articulate annual leave and sick leave.

Romanian legislation guarantees a paid annual leave of at least 20 working days, which respects the limit of four weeks laid down by Directive 2003/88 /EC. The right annual leave must be exercised until the end of the calendar year and may be replaced by an allowance in lieu only when the employment relationship ends.

A first legislative change introduced by Law No. 12/2015 has targeted the elimination of pro rata temporis principle, whereby the length of paid leave was determined in relation to the work performed for the same employer during a calendar year. In addition, the legislative change solves the problem of the relationship between sick leave and annual leave.

Under the new provisions of the Labour Code, an absent employee for sick leave, maternity leave, maternal risk leave or sick child leave does not lose the benefit of paid annual leave. So, are regarded as actual working periods for determining the duration of annual leave, periods during which the execution of the employment contract is suspended due to sick leave (without distinguishing between the leave due to accident work, occupational disease and non-occupational diseases and accident2), maternity leave, maternal risk leave or sick child leave.

The legislative changes also targeted the extension of the carry-over period for annual leave not taken by the end of the leave year, from 12 to 18 months. If, for objective reason, a worker has been prevented from taking his annual leave, has an additional opportunity of 18 month to benefit from that leave, on the expiry of which the rights to paid annual leave lapses.

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It remains to be seen how far this 18-month carry-over period will be deemed com- 3 CJCE, 20 January 2009, C-350/06 pliant with European law, given that, according to the case law of the European and C-520/06, Schulz-Hoff and Court of Justice “Article 7(1) of Directive 2003/88 does not preclude, as a rule, natio- Stringer, § 43. nal legislation which lays down conditions for the exercise of the right to paid an- 4 CJUE, 22 November 2011, nual leave(…), including even the loss of that right at the end of a leave year or of a C‑214/10, KHS AG c. Winfried carry-over period, provided, however, that the worker who has lost his right to paid Schulte, § 44. annual leave has actually had the opportunity to exercise the right conferred on him 5 Which is approximately 220 Eu- 3 by the directive” . It is also true that, according to the Court, the same text “must ros. be interpreted as not precluding national provisions or practices, such as collective agreements, which limit, by a carry-over period of 15 months on the expiry of which the right to paid annual leave lapses, the accumulation of entitlements to such leave of a worker who is unfit for work for several consecutive reference periods”4.

In addition, under the new law, if the worker’s disease - professional or non- professional, his child’s disease, maternity or maternal risk occur during the annual leave, the employee has the right to interrupt his paid annual leave and to take it at a time other than that originally scheduled, in order to benefit from his rights to sick leave, maternity leave, maternal risk leave or sick child leave. But the new legislation ignores the problem of the relationship between parental leave and paid annual leave. In addition, the Labour Code does not equate parental leave to actual work periods for determining the duration of annual leave.

Law No. 12/2015 also aimed to improve the situation of temporary workers (in Ro- mania called “temporary employees”). The new legal provisions set out more clearly the principle of equal treatment of temporary employees compared to employees of the user undertaking in terms of salary for the same or similar work. Where there is no comparable permanent worker in the user undertaking, the comparison is made by reference to the salary of a person doing the same job or similar work, as provided for in the collective agreement applicable at the user company.

Among other legislative measures in the field of labour law, we must mention the increase of the guaranteed gross minimum wage, rising from January 20155 to 975 lei.

These are the main measures adopted during the last six month in the field of labour law in Romania.

English Electronic Edition - 2015-3

143 serbia

filip bojic University of Belgrade

1 When it comes to increasing In mid-July 2014, some legislative reforms have been made in Serbia regar- age in male insured, starting from ding the exercise of the rights to old-age pension. The National Assembly of the 1 January 2015, the age will be Republic of Serbia adopted by urgent procedure, without prior public debate and increased for 8 months per year participation of the Economic and Social Council, amendments to the Law on until 2022, when there is a gradual Pension and Disability Insurance, which after almost two decades introduced increase for six months per year, leading to the ultimate goal of 2023, back to our system of pension and disability insurance the institute of early old- and it is as stated - 60 years of age age retirement. and 40 years of pensionable service. There is a different formula for The right to early old-age retirement can be realized by the insured person who women as to insured women the age meets two cumulative conditions set, at least 60 years of age and at least 40 is increased as well as years of pen- years of pensionable service. Previous legislation provided that the insured man sionable service. In the period from may be entitled to a full old-age pension when he reaches at least 40 years of 2015-2016, the years of insurance pensionable service and at least 58 years of age, while the insured woman is are increased for 8 months per year, entitled to old-age pension when she reaches at least 38 years of pensionable to be increased from 2017 to 2020 for service and at least 58 years of age. Adverse provisions for policyholders, who 6 months, and from 2021 to 2023 for 4 months per annum. Years of life in on this basis planed to exercise their right to old-age retirement, are reflected women are increased for 8 months in two directions. First, the conditions are tightened in terms of age from 58 from 2015 to 2023, and in 2023 for years to 60 years, while for women the situation is even worse, because the 6 months, so that in 2024 conditions duration of pensionable service is increased from 38 years to 40 years, equating would be finally equalized for early them in terms of conditions entirely with men.1 In addition, to the insured per- old-age retirement in terms of age sons, in cases of early old-age pensions, the pension amount is permanently and years of pensionable service for reduced by 0.34% per month for each month before the age of 65, which annually male and female insured persons. amounts to 4.08%. Bearing in mind that the general age limit for realization of The Law on Pension and Disability Insurance of the Republic of Ser- full age pension is 65 years of age, and eligibility for early retirement can be bia “Official Gazette of the RS “, no. achieved with at least 60 years of age, the maximum amount of pension may 34/2003 ... 142/14, art. 19b and 19v be reduced by 20.4%. Unlike the former legal provisions regulating the right to early old-age retirement, where the pension amount was only temporarily 2 Law on Pension and Disability Insurance of the Republic of Ser- reduced to the insured, i.e. to the moment when he/she meets requirements for 2 bia (“Official Gazette of RS” No. full age pension , new conditions provide that to the insured, who decides to file 27/92…12/96), Article 37. a request for entitlement to early old-age retirement, the amount of pension will be permanently reduced. In determining the conditions for early retirement and 3 “Official Gazette of RS” No. the percentage reduction of the pension, the legislature clearly did not take into 116/2014 account the economic element and the low amounts of pensions in Serbia, which have been decreased even more after the entry into force of the Law on Tempo- rary Pension Payment Regulation from November 2015.3 In February 2015, the amount of average old-age pension in Serbia was RSD 24,914 (Euro 207).

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144 1st semester

In addition to the introduction of early old-age pensions, novelties in the pension 4 Law on Pension and Disabi- legislation are reflected in the equalization of conditions in terms of age for male lity Insurance of the Republic of and female insured persons, as well as in the new laws regulating the special Serbia “Official Gazette of RS” No. insurance period. According to accepted practice in most EU Member States, by 34/2003…142/14, Article 60 amending the Law in Serbia the age limit for insured women was raised from 60 years to 65 years, while equalizing will be carried out gradually. The main objective of tightening the conditions is the sustainability of the pension system, which for years recorded a large deficit due to numerous factors, such as demographic changes, reflected in the increased longevity of the population, high unemployment and widespread gray i.e. informal economy. Starting from 1 January 2015, to the insured women the age shall be increased each year for six months of life until 2020, when the requirement for old-age retirement shall be for insured women 63 years of age. As of 1 January 2021 the age limit for entitlement to old-age pension of the insured women shall be increased by two months a year, and from 2032, a requirement for old-age retirement for men and women insured in the Republic of Serbia will be equalized.

Within the Law on Pension and Disability Insurance a specific institute is observed of special pensionable service. By the amendment of the Law, it was provided that the insured woman who gave birth to a third child, on that basis, can obtain the special pensionable service for the period of two years. It should be noted that the special insurance period is not counted as a condition for obtaining a pension, but that special service only contributes to increasing pension amounts when calculating pensions. The amendments stipulate that to the insured woman, starting from 2032, a period of six months shall be included in a specific service period if she gave birth to a child and a period of one year if she gave birth to two children.4 It is assumed that the legislature opted for this measure, as from 2032, the conditions in terms of age for men and women are equal, so in some way this provides a special form of benefit in calculating the amount of the pension for the insured women.

However, despite the above amendments to the Law on Pension and Disability Insurance, the public speculates on the possibility of prediction of new, more flexible, conditions regarding the realization of the right to early retirement because, in practice, the current conditions proved to be unfavorable and too strict.

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145 serbia

ljubinka kovaČeviČ University of Belgrade

1 Official Gazette RS, no. 79/05, As recently as this year, protection of whistleblowers in the Republic of Serbia 81/05, 83/05, 64/07, 67/07, 116/08, was partially covered by several laws: Criminal Procedure Code, Labour Law, 104/09 and 99/2014. anti-discrimination laws. However, the first form of special protection of whist-

2 Official Gazette RS, no. 120/04, leblowers was introduced through an Amendment to the Law on Civil Servants 54/07, 104/09 and 36/10. in 2009.1 It guaranteed protection to civil servants (who have a special duty to report punishable acts), who informed their superiors in writing that they’ve 3 Official Gazette RS, no. 97/08, 53/10, 66/11, 67/13 and 8/15. learned, through the course of their work, that another civil servant or a person that fulfils a public function committed an act of corruption. That same year an 4 Official Gazette RS, no. 128/2014. Amendment to the Law on Free Access to Information of Public Importance2 was The lawmakers used the Council of adopted, that guaranteed protection to those who reported corruption as well as Europe’s standards as inspiration in writing of this Law, especially the to those who disclosed information indicating „abuse of authority, unreasonable Civil Law Convention on Corruption use of public funds or illegal acts by the authorities“. By covering a wider range (European Treaty Series, no. 174) of information, this Law ended up „covering“ a wider range of protected persons, and Resolution 1729 (2010) on pro- although the protection was reserved only for disclosure of information that is tection of "whistleblowers“. They available to all with no limitations. We should also mention the Amendment to also had in mind the Addendum to the Anti-Corruption Agency Act from 2010,3 which guaranteed protection for the Compliance Report on the Re- persons who, in good faith, report to the Agency instances of corruption at their public of Serbia adopted by Council place of work. of Europe’s Group of States against th Corruption at its 47 plenary mee- By adopting the aforementioned legal provisions, first steps were made towards ting (2010). ensuring the special protection of whistleblowers. And yet, this didn’t cover all possible cases of reporting the various instances of illegal actions of employers in the private sector. This shortcoming was largely eliminated when the Law on protection of whistleblowers was adopted, on 25 November 2014.4 The Law came into force on 5 June 2015. For purposes of this Law, whistleblowing is defined as „disclosure of information about violation of regulations, human rights, the exercise of public authority contrary to the purpose for which it was entrusted, threat to life, public health, safety and the environment, as well as to prevention of serious damage“. Protection is however guaranteed to everyone who has been put at a disadvantage due to whistleblowing, whether it’s the employees, persons under a civil law or commercial law contract, persons who perform undeclared work or employers’ clients in the public or the private sector.

Protection of whistleblowers starts with internal whistleblowing, which is defined as disclosing information to an employer. The employer is obliged to refrain from preventing the whistleblowing, and the key aspect of protection is protection of whistleblowers from employer retaliation, particularly in relation to career advancement, payment of salary, as well as disciplinary measures and dismissal. Therefore, provisions of any act that deny or infringe upon the rights of whistleblowers or put them at a disadvantage will be considered null and void.

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Protection of whistleblowers is based on the respect of legitimate interests of both the employees and the employers. In fact, the protection of whistleblowers is limited only if, at the moment of disclosure, based on available data, another person with average knowledge and experience similar to the person making a disclosure would believe that the disclosure is true.

Besides internal whistleblowing, the Law also regulates external whistleblowing, defined as making a disclosure to an authority. However, the Law does not contain clear and precise rules regarding the order of disclosure, nor does it specify that an employee may use external channels only after the internal whistleblowing system failed to work (properly or at all), i.e. only if the internal system is proven pointless or if it may put the whistleblower at a disadvantage.

Third type of whistleblowing is whistleblowing to the public. It represents disclosure of information to the general public and is permissible in case of an immediate threat to life, public health, safety or the environment, or an immediate danger of destruction of evidence. We should also bear in mind that the Serbian legislator, in regulating certain procedural issues, achieved a reasonable level of clarity, although he failed to put in the rules on the mutual relationship of the three systems of whistleblowing.

A whistleblower who has suffered damaging consequences is entitled to judicial protection. It is exercised as a three instance court proceeding, in which the court can also ask to establish the facts that are not in dispute, i.e. the facts that neither party has put forward in the proceedings. The whistleblower is only obliged to show likelihood that he had suffered damaging consequences, while the employer is obliged to prove that the damaging consequences are not in causal relation with the whistleblowing. It is particularly important that the law provides for the possibility of setting up temporary relief and that the court can stay the legal effect of an act, prohibit damaging actions, as well as order that the consequences of damaging actions be remedied.

There is a hope that the guarantees given in the Law on protection of whistleblowers will encourage employees to defend public interest more decisively, and encourage employers and the authorities to thoroughly investigate allegations of corruption and other illegal activities. Only under these conditions, the legal protection of whistleblowers might be used to the benefit of all the parties in the employment relationship, as well as society as a whole, especially if one takes into account the seriousness and complexity of the problem of corruption in transitional societies, like Serbian.

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147 slovenia

barbara kresal University of Ljubljana

1 Official Journal of the Republic In June 2015, the new Employment, Self-employment and of Slovenia, No. 47/15, 30. 6. 2015. Work of Aliens Act (Zakon o zaposlovanju, samozaposlovanju in Full text in English (unofficial trans- delu tujcev)1 was enacted in Slovenia. It entered into force on 1 lation) at the website of the Ministry September 2015. of Labour, Family, Social Affairs and Equal Opportunities: http://www. The new legislation introduces a single permit for residence mddsz.gov.si/fileadmin/mddsz.gov. si/pageuploads/dokumenti__pdf/ and work following the principle of a one-stop-shop as foreseen zaposlovanje/ZZSDT_ang.pdf . by the Directive 2011/98/EU. In accordance with the new rules, a foreigner or their employer must submit only one application 2 During the last six months prior for a single residence and work permit. Instead of the two-step to submitting the application: the employer had at least one person procedure which was in force until the new Act (a work permit in full-time employment and regis- was issued by the Employment Service of Slovenia and then tered in the compulsory social insu- the residence permit by the administrative unit), the simplified rance schemes, or he was registered procedure is foreseen. The single residence and work permit in the compulsory social insurance is issued by the administrative unit after the consent of the schemes as an individual registered Employment Service of Slovenia. to pursue an activity or the receipts from business operations amoun- The Employment Service of Slovenia grants the consent for ting to at least EUR 10,000 were employment at the request of the administrative unit if all recorded in the employer’s transac- prescribed requirements for the particular case are met. tion account in the Republic of Slo- venia in each month. If an employer Generally speaking, the consent is granted if there are no has been registered for less than six suitable unemployed persons for a particular job in the register months, he has to show that prior of unemployed persons and if the prescribed quota for foreign to submitting the application he workers for a particular year has not been reached yet. The invested at least EUR 50,000 in the employer has to meet certain criteria as well, such as that it activity in which the foreigner is to has been appropriately registered, it is not in a winding-up carry out work. This condition does or bankruptcy procedure, it is actively pursuing its business not apply to foreigners who hold at operations,2 it has no outstanding tax liabilities. The foreigner least a higher education degree. has to fulfil the conditions for the job required by the employer and the employment contract signed by the employer has to be submitted together with the application as well.

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The minister responsible for labour may specify cases where, due to 3 Bilateral agreement, Official the nature of the work and/or particular circumstances on the side Journal of the Republic of Slovenia of the employer or the foreign worker, a consent to a single permit – International Treaties, No. 12/92, may be granted without verification whether there are suitable 6. 12. 2012. unemployed persons for a particular job or not. The minister may, 4 Act Extending the Transitional in agreement with the social partners, also identify professions for Period for Free Movement of Ci- which such verification is not needed if the employment of foreign tizens of the Republic of Croatia and workers in this area would have no detrimental effects on the their Family Members, Official Jour- labour market. nal of the Republic of Slovenia, No. 46/15, 26. 6. 2015. The law provides for many exceptions and special rules for specific situations which cannot be described in detail. For example, the consent of the Employment Service of Slovenia is not needed in case of a single permit for self-employment of a foreigner. There are special rules for the EU Blue Card, for posted workers, for seasonal work, for short-term work of representatives, etc.

The one-stop shop regime and single permit rules do not apply (i.e. a separate work permit issued by the Employment Service of Slovenia is still needed) to seasonal farming work lasting up to 90 days; to the employment of citizens from Bosnia and Herzegovina;3 and to the employment of Croatian citizens in the first two years of their legal residence in Slovenia during the transitional period following the accession of the Croatia to the EU4.

The restricted access to the labour market with the permit regime applies only to the third-country nationals, whereas there is a free access to the Slovenian labour market for the citizens coming from the EU Member States, the EEA countries and Switzerland. There is an exception to this rule for the Croatian citizens who still need to obtain a work permit in the transitional period in order to legally work in Slovenia.

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149 SOUTH AFRICA

KARIN CALITZ University of Stellenbosch

1 (2014) 35 ILJ 406 (SCA). (2014) 35 How far is an employer required to go in accommodating the cultural or ILJ 908. religious practices of employees in the workplace? From recent decisions

2 A Rycroft “Business Needs, of South African courts it seems as if the judiciary expects employers to Cultural Beliefs and Fairness” walk the extra mile in a culturally diverse South Africa. In these deci- (2014) 35 ILJ 908 at 914. sions the inherent tension between the interest of employers to run their businesses and employees’ constitutionally protected rights to freedom 3 2008 2 BCLR 99 (CC). of religion and culture came to the fore.

In Kievits Kroon Country Estate v Mmoledi 1 (Kievits) an employee (working in a supervisory position in the kitchen of a hotel and conference venue) requested her employer to grant her unpaid leave for a period of five weeks to complete a training course to become a traditional hea- ler (sangoma). The employer was only prepared to allow a week’s unpaid leave since it was a busy time and they were short of staff. The employee nevertheless absented herself. She did however leave a letter with the employer from the sangoma under whose guidance she would undergo the training. The letter explained that the employee’s ancestors called her to be trained and, should she ignore this calling, she could become ill and could even die. The employer did not find this acceptable and dismissed her for misconduct in that she had disobeyed the instruction to be at work.

The Supreme Court of Appeal (SCA) held that the dismissal was unfair since the employee sincerely believed that she could die if she did not obey her ancestors and that she was thus justified in disobeying the order of the employer. The court applied a subjective test in terms of which there is no need for evidence to prove the existence of a cultural or religious practice that is central to the religion, or to prove that it is a compulsory practice. This subjective approach was criticised by some academic authors2 but it mirrors the approach of the Constitutional Court in MEC for Education: Kwazulu-Natal v Pillay 3 (Pillay) .

In Kievits the SCA emphasised that employers should be sensitive to different cultures and religions in the workplace and that this employer should have taken the time to understand the deeply seated beliefs of the employee. The employer should have searched for alternatives such as arranging for another time during the year when it would have been more

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convenient to grant leave. In this case the clash between a westernised culture 4 Note 2 at 916. (that of the employer) and the traditional indigenous beliefs of the employee 5 [2013] ZASCA 40. were manifest. This judgment was criticised on account of the fact that the court seemingly expected the employer to give the same weight to a sangoma’s 6 Act 66 of 1995. letter as that of a certificate from an officially registered medical doctor.4

In Department of Correctional Services v Popcru 5(Popcru) the new commander of Pollsmoor prison ordered every male warden to wear short hair in the interests of order and discipline. Three employees who adhered to the Rastafa- rian faith, and two employees who adhered to Xhosa traditions, did not comply. They were subsequently dismissed for misconduct based on disobedience. The employees argued that their Rastafarian religion and Xhosa culture, respecti- vely, required them to wear dreadlocks, and that their employer discriminated unfairly against them on the grounds of religion, culture and gender (female employees wearing dreadlocks were not required to cut their hair). The SCA found that the apparently neutral requirement (that all men should have short hair) had a disparate impact on Rastafarians and those adhering to the Xhosa culture. The employer thus discriminated against this group of employees. In deciding whether short hair was an inherent requirement of the job and whether the discrimination was thus justifiable in terms of the Labour Relations Act,6 the court held that the employer was unsuccessful in proving that short hair would be conducive to order and discipline. The court said that:

“A policy is not justified if it restricts a practice of religious belief – and by necessary extension, a cultural belief– that does not affect an employee’s ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer… No rational connection was established between the purported purpose of the discrimination and the measure taken.”

The judicial message of tolerance of other cultures in Kievits and Popcru was also emphasised in Pillay, in which the Constitutional Court stated that in the South African society diversity is an attribute of the community that should be cherished, and that an exception to standard rules should be allowed in a process of weighing up the interests of the two parties.

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151 SOUTH AFRICA

KARIN CALITZ University of stellenbosch

1 Kylie v CCMA 2010 4 SA 383 In spite of the fact that South African courts have in the past regarded a person (LAC); Discovery Health Ltd v CCMA involved in prostitution (which is illegal in South Africa) and an immigrant in [2008] 7 BLLR 633 (LC). illegal employment as employees and thus entitled to protection against unfair 1 2 Universal Church of the Kingdom dismissal, the Labour Appeal Court (LAC) recently held that a pastor is not an of God v Myeni &others [2015] ZA- employee and that he was thus not protected against unfair dismissal.2 LAC 31. The written agreement between the pastor and the church entailed that the

3 Universal Church of the Kingdom pastor would render voluntary service and that the church would provide a “sti- of God v CCMA & others [2014] 3 BLLR 295 (LC). pend” to cover his living costs. It was stated in the agreement that it should not be seen as an employment contract and that the church has no duty to pay the

4 Act 66 of 1995. stipend. In spite of these terms, the pastor received a fixed “stipend” as well as

5 [2001] 11 BLLR 1213 (LC). a fixed housing allowance every month for several years. The relationship was terminated after allegations that the pastor had accepted sums of money from members of the congregation, which was contrary to the terms of the agreement. The pastor referred a dispute relating to an unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA), where the commissioner found that he was an employee and that he had been unfairly dismissed. The church referred the case to the Labour Court for review on the ground that the commissioner erred in finding that the pastor was an employee.

The Labour Court agreed with the decision of the CCMA and found that the priest was indeed an employee.3 The judgment was mainly based on the presumption created in section 200A of the Labour Relations Act (LRA).4 This section provides that “until the contrary is proved, a person who works for, or renders services to any other person is presumed, regardless of the form of the contract, to be an employee”, if the person earns less than a stipulated amount and any one or more of a list of factors is present. The pastor earned less than the threshold amount and the court found that some of the listed factors were applicable to the relationship: the church had control over the manner in which the pastor performed his duties as well as the number of hours that he worked; he formed part of the church since he conducted church services; he performed work only for the church and no one else; he was economically dependent on the church; and he worked for the church for more than 40 hours per month.

The church relied on Church of the Province of South Africa (Diocese Cape Town) v CCMA 5 in which the court held that a priest was not an employee since a priest was a servant of God, and further that it was clear that the parties had

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no intention to conclude an employment contract. However, the Labour Court 6 See, for instance, Stewart v New pointed out that Church of the Province was decided before section 200A had Testament Church of God [2008] been added to the LRA in 2002. The Labour Court further referred to the develop- IRLR 134 and President of the Methodist. Conference v Preston ment of English jurisprudence that had taken place since the decision in Church [2012] IRLR 229 CA. of the Province. The English courts held in several decisions that priests should in principle not be treated differently from other employees, but that courts 7 Discovery Health, note 1.

should rather consider the facts of each particular case before deciding whether 8 2015(1) SA 106 (SCA). the priest is an employee.6 The Labour Court pointed out that in terms of South

African jurisprudence an employment relationship need not be embedded in a 9 De Lange para 39. common law contract of employment to fall within the definition of an employee in section 213 of the LRA.7 This section provides that an employee is inter alia “any … person who in any manner assists in carrying on or conducting the business of an employer.”

Further factors pointing to an employment relationship in this particular case were that the church called the pastor to a disciplinary hearing and that the church acknowledged that he could be dismissed for misconduct. Tax and unemployment contributions were also deducted from his “stipend.” In the light of these characteristics the Labour Court held that the church did not succeed in rebutting the presumption that the pastor was an employee.

The decision was overturned by the LAC, which found that the Labour Court had erred, since section 200A of the LRA only has application if a contract had been concluded and that although there was a written agreement between the parties, they had no intention to conclude a contract. This seems to be a very narrow view of the application of section 2013 and leaves room for disguising an employment relationship by describing a relationship as “voluntary” and calling a salary a “stipend.” This is exactly what the Employment Relationship Recommendation, 2006 of the International Labour Organisation endeavours to address, namely employers casting an agreement in such terms that the worker will not be regarded as an employee with the purpose of avoiding accountability in terms of labour legislation. The LAC further supported the judgment in De Lange v Presi- ding Bishop, Methodist Church of SA 8in which the Supreme Court of Appeal stated that “proper respect for freedom of religion precludes our courts from pro- nouncing on matters of religious doctrine, which fall within the exclusive realm of the church.”9 This argument seems to be inapt, since the point to be decided did not deal with a doctrinal issue, but simply with whether, on the facts, the pastor was an employee or not. This decision of the LAC seems to have gone against South African and English jurisprudence.

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153 the netherlands

nicola gundt Maastricht University

1 Wet Werk en Zekerheid, Stb Dutch labour law is still processing the changes concerning flexible work and dis- 2014/216. missal that were introduced on January 1st and July 1st 2015.1 The Act on Employment

2 Wet aanpassing arbeidsduur and Security aims at offering more security to workers in atypical and precarious em- (Waa), Stb 2000/114. ployment. Atypical work is normalised and flexibility that leads to precariousness is limited. However, in the meantime, another type of flexibility has come to the centre 3 Arbeidstijdenwet (Atw), Stb of attention. This concept includes flexibility in working hours and schedules as well 1995/598. as workplace flexibility. 4 Wet Arbeid en Zorg (Wazo), Stb 2001/567. I - History 5 Incidentally, it would also help Workplace flexibility is only one example in the long line of initiatives aimed at enhan- implementing the EU Framework agreement on telework, even cing possibilities to combine paid employment with other responsibilities, particularly though the Dutch legislator is not caregiving to relatives and family members. In 2000, a statute was adopted containing obliged to transpose the agree- a conditional right to a reduction or augmentation of working time2. The only reason ment into law. for an employer to turn down an employee’s request to change his working time is an overriding business interest which the employer must prove. Furthermore, reconciling 6 Kamerstukken II, 2010/11, 32 889, nr. 3, p. 2. family and working life has been the main aim behind reforms in the Act on Working Time3 and the Act on Work and Care.4 Concerning the former, article 4:1a obliges the employer, as far as reasonably possible, to take into account the employees’ personal circumstances, particularly responsibilities related to care given to family members. The most recent change in the law is the insertion of art. 4:1b, containing a right to ask for a temporary change of working times in combination with parental leave. Com- bined with changes to chapter 6 of the Act on Work and Care, this offers much more flexibility with regard to parental leave. The aim is, once again, to make the combination of family life and paid employment easier. II - Workplace flexibility To enhance possibilities of reconciling different duties and responsibilities even further, the Act on the adaptation of working time will be adapted as of January 1st 2016. The act will be rechristened “Wet flexibel werken” (Act on organizing work in a flexible way) and will, in addition to the conditional right to ask for more or less hours, also contain the conditional right to work from home.

During the presentation of the bill, its initiators argued that the bill promotes agreements on issues like home office days and thereby already strengthens the employees’ position.5 According to the initiators, the need for more flexibility concerning workplaces is generally accepted, 80% of the collective agreement mentions this issue, but only 16% of them contain any concrete rules concerning the right to decide where to work. In only 4% of the collective agreements, caregiving responsibilities are mentioned as a possible reason.6 Therefore, legislative action was deemed necessary. Even- tually, both Chambers of Parliament accepted the bill. III - Possible effects The right to work from home obviously has certain advantages and may have positive effects on employees’ physical and mental health as well as on the quality and quantity of the work they do. Employees experience less stress and a greater say in their work which leads to them working in a more efficient and creative manner. They

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can profit from calm and quiet surroundings which can be a relief if that person is 7 Kamerstukken II, 2010/11, 32 usually working in an open office setting.7 Furthermore “saving” the travelling time 889, nr. 3, p. 3. leaves more time to work. Finally, employees can combine different tasks more easily. 8 Ibidem. Employers can benefit from workplace flexibility as well. It may lead to less need for office spaces, indicating a possible cost reduction. Furthermore, e.g. advising clients 9 Unforeseen circumstance may justify an earlier request for or customers from home may help finding employees willing to work inconvenient changes, see art. 2 (3) in fine. or uncommon hours, offering new perspectives on securing sufficient employees for business during inconvenient hours. In the third place, offering flexibility may become 10 This act is not applicable to a recruiting tool.8 Finally, in an ideal picture, the state and the community can also employees earning more than benefit, e.g. if flexible working arrangements, including home offices help reducing three times the statutory minimum wage. traffic jam and exhaust gasses. Possible risks concern the teleworkers’ health and safety, their working time, possible disadvantages concerning representation, training opportunities and promotion as well as social exclusion. Stress from overburdening oneself, shifting work into the recuperation time during the (late) evening and self-exploitation, however, remains a serious issue. IV - Employee protection The EU Social partners’ Framework agreement on telework identifies some of the key challenges telework poses. In the first place, telework must be of a voluntary nature and must also be reversible. In the Dutch law, the starting point is the employee’s request to work from home, therefore, the first issue is addressed adequately. Moreo- ver, the discussions in Parliament clearly show that the law does not intend to offer possibilities for fulltime work from home but rather relates to alternating telework. Although the law could have been clearer on that point, it does offer the possibility to reverse the decision to telework, as the employee is allowed to file a request every year.9 The new Act regulates neither working times nor health and safety issues, but both laws include teleworkers. Therefore, the employer is obliged to secure the telewor- king employees’ health and safety. Furthermore, he must show that the working times are in line with the Working Time Act.10 One of the main problems, however, to which solutions have yet to be found, is stress. Employees working from home will generally do result-based work, which, if not monitored, may lead to stress, self-exploitation and eventually burn-out. Although the Framework agreement tries to combat stress and the Dutch Act on Health and Safety includes a duty to combat stress, so far, the proper tools have not been found.

The newly added workplace flexibility may indeed offer better perspectives of combining paid employment with other responsibilities, but, if not implemented and monitored carefully, may lead to exhaustion of employees who need to prove the employer’s trust in them by delivering the results, even if getting there means working during the night, work creeping into private life and recuperation time. However, as the Dutch act envisages merely alternating telework, these problems may be less acute than those that could develop in a fulltime telework setting.

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155 turkeyafrique du sud

melda sur Dokuz Eylül University

l In the field of social rights, the judge takes increasingly in consideration rulings of the European Court of Human Rights and the broad conception of liberties adopted by the supervisory bodies of the ILO and the European Social Charter.

I - The Broadened Conception of Union Rights by the Judge

Rulings of the Constitutional Court

The Constitutional Court has annulled in October 22, 2014 the prohibition of strikes in banks and public urban transportation. The motivated decision has not yet been published at the Official Gazette, and hence is not in force as today. The same decision, cancelling a provision in art. 25, aims to render more effective the protection of union members against dismissals; and reinstatement may be claimed regardless of the number of employees and duration of employment, as well as the payment of the specific compensation due in cases of dismissal for union activities.

The Court, in another decision, annuls the discrimination between unions affiliated to confederations represented at the Economic and Social Council, and other unions for which, to be authorized for collective bargaining 3% of memberships were required instead of 1% for the former (Decision dated May 14, 2015 published at the Official Gazette of 11.6.2015, No. 29383). The- refore, 1% of memberships in the sector are now sufficient for all unions to be authorized to sign a collective agreement.

More recently, after an individual suit by Kristal-İş against a government decree of strike postponement in glass factories (ŞİŞECAM), the Constitutional Court ruled that such an intervention simply motivated by “public health and national security” violates the right of strike. The Court requires for strike postponements indication of specific reasons, an “imperious social need” and a “necessary character in a democratic society”.

Rulings of the Court of Cassation

The Court of Cassation 7th and 22nd Civil Chambers issue interesting decisions where strikes of short duration in protestation against a draft law prohibiting strikes on aircrafts (22nd Civil Chamber, 29.3.2013, 276/144, Çalışma ve To-

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plum 2014/3, No.42, p.265-273) and rumors of dismissals at a workplace (7th Civil Chamber, 3.12.2013, 40/465, Çalışma ve Toplum, 2014/4, No.43, p.239- 243) are considered as a legitimate use of democratic rights, notwithstanding legal provisions where legal strikes may only be called within a collective bargaining process (art. 58/2 of the Law on Trade Unions and Collective Labor Agreements). However, according to these rulings such actions should be of short duration, concern social claims and be a last resort.

These decisions make a large reference to European Human Rights Court rulings, to ILO Conventions No.87 and 98 and their interpretation by supervisory bodies, and to the European Social Charter.

The same liberal approach had been adopted by the High Court of Adminis- tration (Danıştay) in case of a teacher participating to a day of action concerning professional rights (Board of Administrative Suits Chambers, May 22, 2013, 1063/1998, Çalışma ve Toplum, 2014/2, No.41, p.191-193).

II - Reference to International Norms on Work Health and Safety

Turkey is party to many ILO Conventions on work health and safety, and recently ratified the Convention 167 on Safety and Health in Construction (Official Gazette of 6.2.2015, No.29259) and the Convention 176 on Safety and Health in Mines (Official Gazette of 9.2.2015, No.29262).

The Constitutional Court annulled in May 14, 2015, the art.2/2e of the Law on Work Health and Safety which excluded from its coverage “international navigation on ships”. The Court rules that while the ILO Convention No.155 provides some possible exceptions due to specific needs in sea transportation (shipping), the exclusion of a whole category from the protection of the Law cannot be justified. Thus a specific and appropriate legislation should be issued on the matter.

As a whole, this jurisprudence combines domestic rules (in particular, Tur- kish Constitution’s principle of “Social State” in art. 2, and the duty of the State to protect workers in art.49) with a strong reference to international norms and their interpretation by supervisory bodies.

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157 United kingdom

jo carby-hall Hull University

1 Source: Eurobserver 7th. January 2013 Valentina Is there another way to be found in the fight against the Pop “IMF economists admit to ‘errors’ on austerity poli- serious crisis in the British welfare state? For several cy.” http://eurobserver/com/electronic/11864. (Retrieved 3rd February 2015).The view expressed by Blanchard and years the British people had to endure suppression, Leigh are personal ones and not based on IMF thinking, austerity, the elimination or reductions of their rights at except that the IMF has been critical of the austerity mea- work, a decreasing pensions system and the dramatic sures, particularly those taken with regard to Greece. and deep cuts in their social security benefits. 2 The focus of the IMF statements is on Greece but that focus also applies to other countries, such as the United Two economists, namely Oliver Blanchard and Daniel Kingdom where austerity measures are in operation. Leigh of the International Monetary Fund (IMF) stated

3 Source: Article entitled “Britain is leading the way that “Forecasters significantly underestimated the out of this crisis” The Daily Telegraph 7th August, 2011. increase in unemployment and the decline in domestic Such belief has been re-iterated and rehearsed since demand associated with fiscal consolidation".1 The IMF 2011 on numerous occasions, the latest one being in Mr. also advocates fewer budget cuts in countries facing Osborne’s Budget speech of March 2015. recession as well as a decrease in austerity measures.2 4 Namely Paul Krugman, Amartya Sen, Joseph Stiglitz In other words more spending and borrowing is needed and Christopher Pissarides. to abate the crisis in the welfare state. The Chancellor

5 Inter alia, Alan Blinder, Nouriel Roubini, Robert Shil- of the Exchequer, Mr George Osborne holds a different ler and Robert Reich. Source: United Kingdom Austerity view. His belief is that “The alternative to more spending Programme http://en.wikipedia.org/United_Kingdom_ and yet more borrowing is now frankly ludicrous and government_austerity_programme (Retrieved 21st Fe- places those who advocate it on the outward fringes of bruary 2013). the international debate.”3 Unfortunately for Mr Osborne 6 Namely Christine Lagarde of the IMF, Robert Zoel- “the international debate” on this topic is contrary to lick of the World Bank, Pascal Lamy of the World Trade 4 Organisation, Angela Gurria of the OECD, Donald Kabe- his beliefs! Four Nobel prize- winners in economics 5 ruka of the AIDB, Haruhiko Koroda of the ADB, Luis Al- and other distinguished economists express different berto Moreno of the lADB, Josette Sheeran of the WPP views on austerity measures. On 20th January, 2012 the and Juan Somavia of the ILO. Source Larry Elliott “IMF Heads of the leading economic world bodies6 called for warns of threats to global economies posed by austerity drives” The Guardian 20th January 2012. economic policies which would foster growth and warned of the danger of austerity. Since 2010 the United Kingdom 7 See Chris Giles and Andrew Bounds “Brutal for Bri- th has followed a programme of severe austerity and is tain” Financial Times 15 January, 2012. The situation 7 has not changed by 2016 ! “now enduring a prolonged period of near stagnation. Whereas in May 2010 when the current coalition 8 In 2011 to 2014 growth had averaged to about 1%.

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government came to power tax increases and severe 9 Mr. Neil Bentley, Deputy Director General of the public spending cuts were planned to take place over a Confederation of British Industry period of five years to reduce the budget deficit inherited 10 Which invariably include cuts in the welfare state by the labour government, the’ period of austerity, by as for example, cuts in state sector jobs, pension cuts, reason of stagnation8 has been prolonged to seven years. minimum wage cuts, privatisations, (which in some cases have proved a disaster e.g. East Coast Rail which 9 According to the Confederation of British Industry (CBI) has changed hands several times between the private “the only way to resolve unemployment in the short term and public sectors.), the liberalisation of labour laws is to pull out all the stops to get the economy moving and resulting in the loss of rights at work too numerous to itemise here and the diminution/suppression of welfare business growing.” Economists are now saying loudly benefits, spending cuts, etc. and clearly that austerity economics10 are discredited and that it is time for a Keynesian inspired alternative11 to the 11 See the interesting and convincing argumentation in Symmetry Breakes “Austerity economics is now is now austerity programme currently operating in the United completely discredited. It is now time for a Keynnesian Kingdom. Keynesian economics have been vindicated alternative” 18th June 2012 based on Keynes’ “Theories time and time again.12 Austerity measures have been on the economy.” (Source: httpl/symmetrybreaks. wor- described by Nobel prize-winner in economics Joseph dpress. coml20 12/06/18/austerity-economics-is-now- compl (Retrieved 21st February 2013). Stiglitz as “economic suicide” and the rating agency Standard a Poor has admitted that “austerity alone is 12 For example, the great depression of the 1930s, the self-defeating.13 stock market crash of 1987, the Keynesian resurgence in 2008 in response to the global economic crisis. See too Nobel prize- winner in economics Paul Krugman’s The United Kingdom needs a Keyensian fiscal stimulus “Peddling Prosperity: Economic Sense and Nonsense in by borrowing and investing14 which would boost and the Age of Diminished Expectations” (1994) W.N. .Nor- stimulate the economy, reduce unemployment and ton & Company, New York. increase state revenue through more people paying taxes. 13 Source: http://symmetrybreaks.wordpress. The British government needs to spend more on training com/2012/06/austerity-economics-is-now-compl (Re- and thus invest in people. The Keyensian concept appears trieved 21st February, 2013). to make good economic sense in remedying the high toll 14 By building its infrastructure, namely spending on of the poorest and most vulnerable in society and defusing its antiquated rail network, by constructing affordable the current economic crisis which features in the British housing, spending on airports and many such other welfare state. infrastructure initiatives.

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elena sychenko Catane University

1 All the reports are available: In the recent six months both Committee held two sessions and adopted http://tbinternet.ohchr.org/_ recommendations concerning labour and social security law issues in 23 layouts/TreatyBodyExternal/Ses- countries. The present report will focus on these recommendations as the sionsList.aspx?Treaty=CESCR (ac- individual applications lodged to the CESCR under optional protocol are still cessed 08.04.2015) All the reports pending, and the Human Rights Committee did not consider any relevant are available at: http://tbinternet.ohchr.org/_layouts/TreatyBodyExter- case. nal/SessionsList.aspx?Treaty=CCPR (accessed 10.04.2015). I - The Committee of Economic, Social and Cultural rights

During the last two sessions the Committee adopted its concluding observations and recommendations on the reports of Viet Nam, Portugal, Finland, Montenegro, Guatemala, Slovenia, Nepal and Romania.1 The problems of implementation were revealed in the following spheres:

Informal and forced labour: According to the Committee’s position the States must take action in order to regularize informal labour.

Discrimination in the labour market: The Committee was concerned about the discrimination of Roma people (Slovenia, Romania, Portugal, Montene- gro) and asked the States to provide efficient protection and redress. Dis- crimination in employment against persons with disabilities was found prevalent in the majority of Sates.

Minimum wage: The Committee noted that the problem of insufficiency of minimum wage was still present in the majority of countries concerned and recommended the states to ensure that the minimum wage provides employees with the decent standard of living.

Social security system: Romania and Tajikistan were recommended to ensure that social security benefits were sufficient to provide the recipients and their families with a decent standard of living. Finland was advised to grant all workers, including migrant and seasonal workers, the right to register in and join social security schemes, Slovenia - to revise the eligibility conditions and rates for social security benefits, taking into account the actual cost of living and ratify ILO Convention No. 118.

Trade-union activities and the right to strike: The Committee noted with concern the decentralization of collective bargaining in Portugal and requested the State to ensure that the agreements at company level fully

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respect the rights of workers. It urged Montenegro to ensure that workers 2 All the reports are available in both private and public sectors enjoy their right to freely form and join at: http://tbinternet.ohchr.org/_ trade unions. Vietnam was recommended to remove excessive restrictions layouts/TreatyBodyExternal/Ses- on the right to strike and to ratify ILO Convention N. 87 and N 98. sionsList.aspx?Treaty=CCPR (accessed 10.04.2015). Unemployment and underemployment: the Committee remained concerned at the high unemployment rates in European Countries, particularly among young people. Montenegro, Slovenia and Romania were encouraged to consider raising the employment quota in respect of the persons with disabilities and take effective measures aimed at reducing employers’ recourse to short term contracts.

Between the most interesting points of the concluding observations it is worth to emphasize the conclusion about disproportionate effect of austerity measures on women formulated in regard of Slovenia. The State was invited to integrate a gender perspective into all its austerity measures with a view to ensuring respect for women’s rights under the Covenant under all circumstances.

II - The Human Rights Committee

During the last two sessions the Committee adopted its concluding observations and recommendations for 12 countries: Burundi, Haiti, Israel, Malta, Montenegro, Sri Lanka, Cambodia, Côte d’Ivoire, Croatia, Cyprus, Monaco, Russia.2 The problem of discrimination was found to be present in all the countries to different extent. The Committee noted with concern that discrimination on the basis of language has not yet been prohibited by law in Malta. Israel was called to step up its efforts to achieve equitable representation of Israeli citizens of Arab origin in the civil service, Cambo- dia - to take concrete steps to reduce the wage gap between the men and women and prohibit discrimination based on sexual orientation and gender identity, Cote d’Ivoire – to adopt a general law against discrimination.

In respect of violation of the freedom association the Committee stated that Monaco should modify the conditions relating to the composition of the unions so that they should be compatible with Articles 22 and 26 and allow foreign workers to form unions, Shri-Lanka should ensure that all counter-terrorism measures comply with the provisions of the Covenant and contain protections of the rights to freedom of association.

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elena sychenko Catane University

1 All the reports are available: In the recent six months the Committees held two sessions and adopted re- http://tbinternet.ohchr.org/_ commendations concerning 14 countries. The focus will be made upon conclu- layouts/TreatyBodyExternal/Ses- ding observations as under Optional protocols neither of Committees consi- sionsList.aspx?Treaty=CESCR dered individual applications on violations of labour or social security rights. (accessed 16.10.2015). I - The Committee of Economic, Social and Cultural rights

During the 55th session the Committee adopted the concluding observations and recommendations in respect Chile, Ireland, Kyrgyzstan, Mongolia, Thai- land, Uganda, Venezuela.1 The problems of implementation were revealed in the following spheres:

Informal and forced labour: the Committee noted that forced labour is present in all countries, except Ireland, and urged the states to eradicate it through strengthening labour monitoring mechanisms. It also pointed the necessity to progressively regularize the informal sectors of the economy in these countries and take action against child labour.

Discrimination: The Committee was concerned about the gender discrimination in all countries, persistent gender pay gap (Chile, Thailand, Kyrgyzstan, Uganda and Venezuela), discriminatory practices in domestic work in Chile. It urged Uganda to strengthen the system of job quotas for disabled persons.

Minimum wage: The Committee recommended Ireland, Kyrgyzstan, Thailand and Venezuela to ensure that the minimum wage provides employees with a decent standard of living. It noted with concern that the minimum wage in Uganda has not been revised since 1984.

Social security: Chile, Kyrgyzstan, Venezuela and Mongolia were recommended to amend the systems of social security and ensure broad social coverage and sufficient benefits to all workers and individuals. Ireland was called to clarify the eligibility criteria regarding social welfare benefits, review the maternity benefits scheme with a view to ensuring that all women workers benefit from the scheme.

Trade-union activities and the right to strike: In opinion of the Committee, Chile and Mongolia should establish effective mechanisms for the protection of trade union rights; Ireland - enhance the collective bargaining rights of trade unions and abolish the requirement to obtain collective bargaining licences;

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Thailand - ensure that private and public employees and migrant workers 2 All the reports are available enjoy the right to freely form and join trade unions; Uganda - raise the awa- at: http://tbinternet.ohchr.org/_ reness of workers on the importance of trade unions; Venezuela – to inves- layouts/TreatyBodyExternal/Ses- tigate effectively all allegations of violations of trade union rights that are sionsList.aspx?Treaty=CCPR (accessed 15.09.2015). brought to its attention.

Unemployment and underemployment: The Committee remained concerned at the high unemployment rates in all the countries, particularly among young people and women. It recommended the states to develop comprehensive employment policies.

OSH: The Committee was concerned about the prevalence of occupational diseases and injuries in Kyrgyzstan and Mongolia, and recommended the States to ensure that labour legislation on occupational health and safety is properly implemented, including through regular inspections and training of employers and employees, and that employees and their families can have access to adequate compensation for injury and work-related diseases. Uganda was called to ensure effective implementation mechanisms for the occupational safety provisions and increase the number of trained labour inspectors.

II - The Human Rights Committee

During the last 114th session the Committee adopted its concluding observations and recommendations for 7 countries: Canada, France, Spain, Mace- donia, the United Kingdom, Uzbekistan and Venezuela.2

The Committee noted with concern that the problem of discrimination is still prevalent in all the countries. In particular, it emphasized the need to ensure equal payment for women and men in France, Spain, Macedonia and Cana- da. The United Kingdom and Uzbekistan were urged to identify and address effectively the barriers hindering women’s access to high positions in the civil service. Macedonia was recommended to explicitly prohibit discrimination on the basis of sexual orientation and gender identity and combat trafficking, ensuring that the victims receive adequate protection, compensation and rehabilitation. Uzbekistan was criticized for the increase in the use of forced labour in the cotton and silk sectors and for hazardous working conditions in the cotton sector and was urged to address these issues.

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risa l. lieberwitz Cornwell University - School of Industrial and Labor Relations

1 135 S. Ct. 513 (2014). I - United States Supreme Court

2 29 U.S.C. §201 et seq. In Integrity Staffing Solutions v. Busk,1 the Supreme Court held that warehouse 3 2015 U.S. LEXIS 2984 (2015). employees’ time spent in post-shift security screenings was not compensable

4 135 S. Ct. 1338 (2015). under the federal Fair Labor Standards Act (FLSA) minimum wage and overtime compensation provisions.2 Although the employer required security screenings, 5 135 S. Ct. 913 (2015). the Court concluded that this post-work shift activity was noncompensable

6 135 S. Ct. 926 (2015). because it was not integral and indispensable to the principal activities of the employee’s job.

In Mach Mining v. Equal Employment Opportunity Commission,3 the Supreme Court held that the courts may engage in only limited review of the EEOC’s conciliation efforts to ensure that the EEOC gives the employer notice and an opportunity to achieve voluntary compliance with federal employment discrimination laws.

In Young v. United Parcel Service, Inc.,4 the Supreme Court held that a plaintiff could prove that her employer engaged in intentional discrimination under the Pregnancy Discrimination Act (PDA) by denying a workplace accommodation, such as light duty, during her pregnancy. The plaintiff must prove that the employer refused to provide the accommodation even while accommodating other employees similar in their ability or inability to work due to medical reasons unrelated to pregnancy. The employer may rebut this prima facie case with “legitimate, nondiscriminatory” reasons for denying the accommodation. Plaintiff could then rebut with evidence that the employer’s justification was a pretext for discrimination. For example, Plaintiff could show that the employer’s policies against providing accommodations placed a significant burden on pregnant employees.

In Department of Homeland Security v. MacLean,5 the Supreme Court held that a federal air marshal was protected by the federal whistleblower statute when he publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights. The Court found that the TSA’s regulations prohibiting the disclosure did not fall within an exception of the whistleblower law.

In a decision favoring employers, M&G Polymers USA, LLC v. Tackett, 6 the Su- preme Court held that ordinary contract principles apply to determining whether retired unionized employees have vested lifetime contribution-free health care benefits. The Court rejected the legal presumption, in the context of a collective bargaining agreement, favoring a finding that health care benefits are vested for life.

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II - National Labor Relations Board 7 361 NLRB No. 157 (2014).

8 361 NLRB No. 126 (2014). In Pacific Lutheran University,7 the NLRB expanded the potential for private university faculty unionizing. First, the Board held that it would assert jurisdiction over religious- 9 http://www.nlrb.gov/news-ou- ly affiliated universities unless the university “holds itself out as providing a religious treach/fact-sheets/nlrb-represen- educational environment” and holds out its faculty members as performing a specific tation-case-procedures-fact-sheet religious function, such as integrating the institution’s religious teachings into cour- 10 361 NLRB No. 132 (2014). sework. 11 Philip Rucker, “Obama Blasts Walker over Wisconsin’s Right-to- The NLRB also reinterpreted its standards applying the Supreme Court’s precedent Work Law,” The Washington Post that in certain circumstances faculty may be considered “managers” excluded from (Mar. 9, 2015), available at http:// the protections of the NLRA. The Board held that faculty are managerial only where www.washingtonpost.com/blogs/ they actually control or make effective recommendations in areas that affect the uni- post-politics/wp/2015/03/09/oba- versity as a whole, such as academic programs and finances. The Board’s emphasis ma-blasts-walker-over-wiscon- on actual authority recognizes the weakening of faculty governance in the “corpora- sins-right-to-work-law/ tized” university. 12 Monica Davey and Mitch Smith, “Illinois Governor Acts to Curb 8 In Purple Communications, Inc., the NLRB held that employees who are given access Power of Public Sector Unions,” to the employer’s email system have the right to use the system, on nonworking time, The New York Times (Feb. 10, 2015), to discuss their terms and conditions of employment. An employer may place specific available at, http://www.nytimes. restrictions on employees’ use of email only if there are special circumstances neces- com/2015/02/10/us/illinois-gover- sary to maintaining production or discipline. nor-bruce-rauner-acts-to-curb- power-of-public-sector-unions. The NLRB has adopted new procedures in representation cases to expedite processes html?emc=eta1&_r=0 for conducting elections in which employees to choose whether they wish to be represented by a union. The new rules seek to avoid delay in holding elections by deferring litigation to the post-election stage where possible.9

In Babcock & Wilcox Construction Co.,10 the NLRB modified its standard for deferring to private arbitral decisions interpreting collective bargaining agreements. The Board will defer to arbitration decisions concerning anti-union discrimination where the arbitration procedures were fair, the parties explicitly authorized the arbitrator to decide the NLRA issue, and the arbitrator’s decision reasonably applied NLRB precedents.

III - State legislation

Wisconsin became the latest state to enact a “right to work” law, which prohibits unions and employers from bargaining for contract clauses obligating employees who are not union members to pay a fair share of the costs of bargaining for the benefits they receive under the collective bargaining agreement.11 In Illinois, the Governor issued an executive order prohibiting such “fair share” provisions for state employees.12

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risa l. lieberwitz Cornwell University - School of Industrial and Labor Relations

1 135 S. Ct. 2028 (2015). I - United States Supreme Court

2 135 S. Ct. 2584 (2015). An employer violates Title VII of the Civil Rights Act by refusing to hire an 3 362 NLRB No. 186 (2015). applicant in order to avoid accommodating a religious practice. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores,1 the clothing store refused to hire a job applicant because her religious practice of wearing a headscarf conflicted with Abercrombie’s employee dress policy, which prohibited wearing “caps.” The Supreme Court held that a plaintiff can prove intentional discrimination by showing that that her need for an accommodation of her religious practice was a “motivating factor” in the employer’s decision not to hire her. A plaintiff is not required to prove that the employer had actual knowledge of the need for an accommodation.

In Obergefell v. Hodges,2 the Supreme Court held unconstitutional state laws excluding same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. The Court found that such laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment by denying same-sex couples’ fundamental right to marry. As a consequence of the Court’s decision same-sex couples who marry will have equal access to benefits that the States have linked to marriage. Further, the Court’s decision will have significant effects in workplaces where employers provide benefits to spouses of employees or where the scope of benefits are affected by a spousal relationship.

II - National Labor Relations Board

In a much anticipated decision, Browning-Ferris Industries of California,3 the National Labor Relations Board (NLRB) revised its standard for determining joint-employer status to more accurately reflect the economic circumstances of current employment relationships, including

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the growing percentage of workers employed through temporary 4 See, dissenting opinion in Brow- agencies. The NLRB will find that two or more entities are joint ning-Ferris. See also, Noam Schei- employers “if they are both employers within the meaning of the ber and Stephanie Strom, Labor common law, and if they share or codetermine those matters governing Board Ruling Eases Way for Fast- Food Unions’ Efforts, New York the essential terms and conditions of employment.” Joint employer Times (Aug. 27, 2015), http://www. status may be found where an employer exercises sufficient direct or nytimes.com/2015/08/28/business/ indirect control over employees or where an employer reserves the labor-board-says-franchise-wor- authority to do so. The NLRB relied on both types of control to find that kers-can-bargain-with-parent- Browning-Ferris was a joint employer with the temporary agency that company.html supplied employees to the company. 5 https://www.nlrb.gov/news-outreach/fact-sheets/mcdonalds-fact- Although the NLRB did not address the application of its standard sheet to the franchisor/franchisee relationship, this question has been the subject of considerable speculation.4 Even prior to the Board’s decision 6 Northwestern University, 362 in Browning-Ferris, the General Counsel of the NLRB began litigating NLRB No. 167 (2015). multiple unfair labor practice complaints against McDonald’s as joint 7 See, https://www.nlrb.gov/ employer with many of its franchisees.5 case/02-RC-143009

In another controversial case, the NLRB refused to assert jurisdiction 8 342 NLRB 483 (2004) over the Northwestern University scholarship football players’ petition for an election seeking union representation.6 While this is a disappoint- ment to those hoping that the Board would uphold the NLRB Regional Director’s ruling that the players are “employees” as defined by the NLRA, the Board explicitly limited its decision to the unusual circumstances of this case, avoiding broader questions involving the rights of others involved in college/university athletics or the employee status of graduate student teaching or research assistants. On October 21, 2015, the NLRB granted review in The New School case7 to reconsider the Board’s Brown University decision 8 in 2004 that graduate student assistants are not “employees” under the NLRA.

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167 noriyukiIALLJ ino CueALL FOR PAPERS 2016 ~ MARCO BIAGI AWARD

To stimulate scholarly activity and broaden academic interest in comparative labour and employment law, the International Association of Labour Law Journals announces a Call for Papers for the 2016 Marco Biagi Award.The award is named in honor of the late Marco Biagi, a distinguished labour lawyer, victim of terrorism because of his civil commitment and one of the founders of the Association. The Call is addressed to doctoral students, advanced professional students, and academic researchers in the early stage of their careers (that is, with no more than three years of post-doctoral or teaching experience).

1. The Call requests papers concerning comparative Prior Recipients and/or international labour or employment law and of the Marco Biagi Award employment relations, broadly conceived. Research of an empirical nature within the Call’s purview is most 2015 - Uladzislau Belavusau (Vrije Universiteit welcome. Amsterdam, the Netherlands), « A Penalty Card for Homophobia from EU Labor Law: Comment on 2. Submissions will be evaluated by an academic jury Asociaţia ACCEPT (C-81/12) ». to be appointed by the Association. Submitted papers should include an abstract. 2014 - Lilach Lurie (Bar-Ilan University, Israel), « Do Unions Promote Gender Equality ? » 3. The paper chosen as the winner of the award will be assured publication in a member journal, subject to Special Commendation : Isabelle Martin (University of Montreal, Canada), « Corporate Social Responsibility any revisions requested by that journal. as Work Law? A Critical Assessment in the Light of the 4. Papers may be submitted preferably in English, but Principle of Human Dignity ». papers in French or Spanish will also be accepted. The 2013 - Aline Van Bever (University of Leuven, maximum length is 12,500 words, including footnotes Belgium), « The Fiduciary Nature of the Employment and appendices. Longer papers will not be considered. Relationship ». 5. The author or authors of the paper chosen as the 2012 - Diego Marcelo Ledesma Iturbide (Buenos winner of the award will be invited to present the work Aires University, Argentina), « Una propuesta para la at the Association’s 2016 meeting meeting which is to reformulación de la conceptualización tradicional de be announced soon on the website of the Association. la relación de trabajo a partir del relevamiento de su Efforts are being undertaken to provide an honarium especificidad jurídica ». and travel expenses for the presentation of the paper. Special Commendation : Apoorva Sharma (National Until that effort bears fruit, however, the Association Law University, Delhi), « Towards an Effective Definition hopes that home institutional funds would be available of Forced Labor ». to support the researcher’s presentation. 2011 - Beryl Ter Haar (Universiteit Leiden, The 6. The deadline for submission is March 31, 2016. Netherlands), Attila Kun (Károli Gáspár University, Submissions should be sent electronically in Microsoft Hungary) et Manuel Antonio Garcia-Muñoz Alhambra Word both to Lavoro e diritto at lavoroediritto@ (University of Castilla-La Mancha, Spain), « Soft On The unife.it and to Frank Hendrickx, the President of the Inside; Hard For The Outside. An Analysis Of The Legal Association, at [email protected]. Nature Of New Forms Of International Labour Law ».

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RJurisprudenceetrospective overvie socialew of 2014 études COMPARATIVEcomparée labour law literature Retrospective overview of 2014 COMPARATIVE labourw la literature 172 R evue of Labour Law Journals Law Labour of sourcing thepublishedcontributions. tion in 2014. Theremaining four were nottaken into account, essentially because of language barriers ordifficultyin the authors analysed twenty-three journalsoutof atotal oftwenty-seven memberjournalsbelonging to theassocia- perspective whichbecomes more and more engagingas a result. Specifically in relation to this retrospective overview, their fieldwithothersocialsciences (primarily economics andsociology), broadening thehorizonsinainterdisciplinary parative, international andEU-wideinterest aswell. Inrecent years theAssociation’s reviews have beguncomparing countries, bothwithin andoutsideEurope, onlabourlawandsocial securitythemes,notonly ofnational,butcom- were covered already inthe2013 retrospective overview. 2 1 * our borders encourages deeperconsideration ofthemainthemeswhichhave animated itduring2014,too. follows attheendofchronicle. can befound atthiswebsite: www.labourlawjournals.com . Besides,thelist ofalljournals'abbreviations mentionnedinthisarticle (Israel), Pecs Labour LawJournal(Hungary)andRussian Y Borzaga, paragraphs 3and4were written byEva MariaHohnerlein. - Revue de droit comparé du travail et de la sécurité sociale sécurité la de et travail du comparé droit de Revue -

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y 2014 comparative labour law literatureespagne

A striking example is the lasting debate on labour law reforms incited by the economic and financial crisis. The essays under review in 2014 focussed again on the negative impact of these reforms on workers’ rights, above all in countries most affected by the economic and financial crisis. It is not surprising that the majority of these contributions were published in Spanish and Italian journals, or in journals paying particular attention to comparative aspects, especially within the European Union.3 In this regard, the focus was on the incessant process of reform, a salient feature of the Spanish legal system resulting from the economic and financial crisis.4 Authors attempted to evaluate in detail consequences of various reforms in different fields of labour law, including the impact on provisions concerning women workers,5 aspects of the right to strike,6 or the relationship between a labour law radically reformed and constitutional law.7 Finally, the debate in the Spanish journals concentrated on the important issue of the compatibility of such reforms with obligations under the international labour law framework, above all with regard to the freedom of association for trade unions under the International Labour Organisation (ILO) Convention no. 87 of 1948.8 In the case of Italy, the debate on the far-reaching reforms of national labour law in the wake of the economic and financial crisis has focused on two topics: firstly, authors discussed extensively the provisions of law no. 92 of 2012 concerning flexible termination measures [It: flessibilità in uscita] which amended art. 18 of the Wor- kers’ Statute (law no. 300 of 1970) in order to limit the safeguards against unfair dismissal.9 Secondly, Italian labour lawyers have considered in detail decree law no. 34 of 2014 (converted into law no. 78 of 2014) which changed the labour law regime of fixed-term work contracts in order to allow greater flexibility than permitted previously under legislative decree no. 368 of 2001 and law no. 92 of 2012.10

3 See, for example, Suárez Corujo B., "Crisis and Labour Market in Spain", in ELLJ, 2014, 1, p. 43; Nogler L., "Das italienische Arbeitsrecht im Kontext der Krise – Teil 1", in AuR, 2014, 2, p. 58; Nogler L., "Das italienische Arbeitsrecht im Kontext der Krise – Teil 2", in AuR, 2014, 3, p. 93. For contributions on this topic published in non–European journals cf. for example, Biasi M., "The Effect of the Global Crisis on the Labor Market: Report on Italy", in CLLPJ, 2014, 35, 3, p. 371; Gil y Gil J. L., "Strengthening the Power of Dismissal in Recent Labor Reforms in Spain", in CLLPJ, 2014, 35, 3, p. 413. 4 Valverde Asencio, A. J., "Un proceso de cambio continuo en el régimen jurídico de la relación de trabajo", in TL, 2014, 124, p. 13. 5 Rodríguez Fernández M. L., "Efectos de la crisis económica sobre el trabajo de las mujeres", in RL, 2014, 1, p. 69. 6 Baylos Grau A. P., "Derecho de huelga, crisis económica y gestión sindical del conflicto", in RDS, 2014, 66, p. 13. 7 Llobera Vila M., "Medidas anticrisis de austeridad y reforma implícita de la Constitución", in RDS, 2014, 66, p. 111. 8 Guamán Hernández A., "Las críticas del Comité de Libertad Sindical de la OIT a la reforma laboral de 2012", in RDS, 2014, 66, p. 201. 9 Gargiulo U., "Il licenziamento “economico” alla luce del novellato articolo 18", in DLM, 2014, 1, p. 87; Chieco P., "La nullità del licenziamento per vizi “funzionali” alla luce dell’articolo 18 dello Statuto dei lavoratori", in DLRI, 2014, 142, 2, p. 331; Guariso A., "Il licenziamento discriminatorio", in DLRI, 2014, 142, 2, p. 351; Speziale V., "Il licenziamento disciplinare", in DLRI, 2014, 142, 2, p. 363; Aiello F., "Alcune questioni in tema di licenziamento per motivi disciplinari", in DLRI, 2014, 142, 2, p. 381; Bolego G. and Nogler L., "Opinioni sul licenziamento per motivi economici", in DLRI, 2014, 142, 2, p. 397; Pacchiana Parravicini G., "Il giustificato motivo oggettivo di licenziamento", in DLRI, 2014, 142, 2, p. 409; Speziale V., "La riforma del licenziamento individuale tra law and economics e giurisprudenza (Parte I)", in RGL, 2014, I, p. 345; Speziale V., "La riforma del licenziamento individuale tra law and economics e giurisprudenza (Parte II)", in RGL, 2014, I, p. 447. 10 This was the first labour law reform adopted by the Renzi government; for details see Romei R., "La nuova disciplina del lavoro subordinato a termine", in DLRI, 2014,144, 4, p. 675; Andreoni A., "I dilemmi sindacali nell’Italia del «Jobs Act»", in RGL, 2014, I, p. 691; Gragnoli E., "La nuova regolazione del contratto a tempo determinato e la stabilità del rapporto di lavoro: introduzione", in RGL, 2014, I, p. 679; Leccese V., "La compatibilità della nuova disciplina del contratto di lavoro a tempo determinato con la Direttiva n. 99/70", in RGL, 2014, I, p. 709; Leone G., "L’utilizzo vincolato del contratto a tempo determinato: cronaca di una morte annunciata", in RGL, 2014, I, p. 729; for further discussion on fixed term work contracts in general, see below, para. 2.4.

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173 Retrospective overview of 2014 COMPARATIVE labourw la literature 174 R evue blowing?", in Unlawful Collective Action?",in Principles and Rights at Work", in relationship between international labourlawandtheregulation ofinternational trade, sérieux l’arbitrage enmatière prud’homale?", in Global Governance System", in have adopted since the1950s,butwhichemployers’ group attheInternational LabourConference have firmly rejected. right to strike underILO conventions ontrade unions’ freedoms, basedontheinterpretation thattheILO’s monitoring bodies retaliation. illegal, unethical, ornotcorrect. There isacommon understanding that whistle-blowing requires protection against potential dangerous situations that have developed (or are in the course of developing) within the undertaking and that are deemed which aworker eitherinternally alerts hisorherown employer, orexternally informs abroader publicaboutirregular or tem, thereby underminingthemonitoring activityoftheILO ontheimplementation ofinternational labourstandards. 17 16 15 14 13 12 11 n. 604/1966",in D., Lagesse P., Beckers M.,"Réformer le conseil desprud’hommes?", in arbitration, known asalternative dispute resolution. and more generally, onthepossibility ofresolving suchdisputes through othermethods,suchasmediation,negotiation and This issue remains quite problematic, mainly because ithascontributed significantly to weakening theILO’s supervisorysys bargaining, theeliminationofdiscrimination,child labourandforced orcompulsory labour. the impactofso-called ILO core labourstandards, like thefreedom ofassociation for trade unions,theright to collective attention paidto international labourlawcutsrightacross allthejournalsunderreview. Accordingly, manyessays considered become thelast bastion ofworkers’ protection, especially inthosecountries thatsuffered most from theeconomic crisis.The in theaftermath ofthefinancial/economic crisisandthe related dismantlingofnationallabourlaw,ILO standards have economy (relying ontheactivation ofsomepre-existing legal instruments rather thanadoptingnew ones),andalsobecause recent years, because theILO hasaltered itsstrategy inorder to respond more effectively to phenomenaofthe globalised more specifically, theimpactofILO standards onnational legal systems. This topic hasbecome particularly important in hamper theprotection oftheprivacy oftheworkforce involved. discussion so far. An example is the use ofsocialmedia networks for managing work relationships which might seriously 2, p.14;RosioruF., "Lamédiationdesconflits detravail enRoumanie:une voie alternative?", in 471. y laborales", in résistances", in 2014-2, p.56;Casaux-Labrunée L., "Lesmodesamiables derèglement desconflits dutravail en France: entre effervescence et in "Autorités et voies nonjudiciaires derésolution desdifférends endroit dutravail bulgare: Avantages, inconvénients etperspectives",

RDCTSS Fiorentino A.,"L’utilisation parle salarié desréseaux sociaux: l’abus delalibertéd’expression nuitàl’emploi", in Iwamura M.,"Autorités non-judiciaires etrésolution desdifférends: uneesquisse dudroit dutravail japonais,in Burgess P., CorbyS.,Latreille P. L.,"LayJudgesandLaborCourts:AQuestion ofLegitimacy",in Fasterling B.,Lewis D.,"Leaks,legislation andfreedom to speech:How can thelaweffectively promote public-interest whistle- Novitz T., "TheInternationally Recognized Rightto Strike: APast, Present andFuture BasisuponWhichto Evaluate Remediesfor Perulli A.,"Fundamental SocialRights,Market RegulationandEUExternal Action",in Withreference to nationallegal systems, butalsoinmore general terms: LiukkunenU.,Yifeng C.,"ChinaandILO Fundamental de A third area ofdiscussion reviewed already for 2013istheoneconcerning so-called whistleblowing -thepractice through A furtherissue already discussed broadly inthe2013overview hasbeenthetransnational dimensionoflabourlawand, fernadoRetrospec Furthermore, thepresent overview excluded some newly emerging topics inlabourlawwhichentailed only limited Finally, thejournalsunderreview includedseveral essays ontherole oflayjudgesinthecontext oflabourdisputes,

droit

c , 2014-2,p.46;GilyJ.L.,"L’arbitrage obligatoire enEspagneàl’épreuve dudroit international dutravail", in 14 omparé ILR RDS RDCTSS LD , 2014,153,1,p.71;Bouton K.,"Vers unegénéralisation dulanceur d’alerte endroit français", in

du , 2014,2-3,p.331. , 2014,65,p.13;Servais J.-M.,"ElDerecho Internacional delEmpleo frente alacrisis",in

travail , 2014-2,p.76;LuisoF. P., "Lacomposizione stragiudiziale delle controversie: laprocedura dicuiall'art.7,l.

de IJCLLIR tive o IJCLLIR

la BCLR

s é c urité , 2014,30,2,p.175;JimenaQuesadaL.,"Laprotección internacional delos derechos sociales , 2014,30,3,p.357;Bellace J.R.,"TheILO andtherightto strike", in , 2014, 86; Bellace J. R., "Human Rights at Work: The Need for Definitional Coherence in the

s o verview c iale RDT , 2014,12,p.731. 16 17 RDT , 2014,2,p.85;Beckers M.,Sutra A., "Faut-il prendre au IJCLLIR 12 andthemuchdisputed issue onthe , 2014,30,1,p.27. CLLPJ RDCTSS 11 Authors alsoreaddressed the , 2014,35,2,p.191;Marshall , 2014-2,p.28;Genova Y ILR TL , 2014,126,p.13. , 2014,1,p.29. RDT RDCTSS RDCTSS , 2014,7-8,p. RDCTSS , 2014-2, , 2014- 15 13 ., - ,

2014 comparative labour law literatureespagne

The present overview will now consider four distinct labour law areas that have occupied a prominent place in the debates reflected in IALL journals of 2014, avoiding repetition of fields covered in previous reviews: 1) changes in the labour market and the protection of the weakest parties (paragraph 2); 2) the rights at work and the rights to social security of migrant workers (paragraph 3); 2) current issues of social security and vocational education and training (paragraph 4); and 4) health and safety at work (paragraph 5). i i Changes in the labour market and protection for the weakest parties A General observations

Throughout 2014, the IALLJ journals paid much attention to the changes in the labour market and to protection for the weakest parties. The direct effects of the economic and financial crisis on the one hand (above all in terms of increasing unemployment and a growth of the informal economy), and the reforms adopted in many, especially European, countries on the other, have consistently reshaped the labour market and its dynamics. More specifically, this has entailed not only the loss of many jobs, but has also worsened overall working conditions for employees. As a consequence, vulnerability among sections of the workforce has increased, and lawmakers and social partners urgently need to take appropriate measures for protecting such groups.

The debate about the different types of vulnerability among workers will be highlighted in the following pages, namely undeclared work, self-employment, atypical work, and the fight against old and new forms of discrimination.

B Undeclared work and the black economy

With respect to the much debated issue of undeclared work and the black economy,18 it is important to recall that the majority of the studies under review concern the situation in European countries. The analysis confirms that the phenomenon is becoming increasingly transnational in character, and that its growing importance is closely linked to the issue of migrant work, not only due to external migration towards the EU, but also to internal migration within the EU. There is much evidence that undeclared work and the black economy are essentially fuelled by illegal immigration; moreover there is reason to believe that the EU’s and member states’ policies of favouring controlled immigration, both temporary and recurrent, tend to create a vicious circle in migrant behaviour, since migrant workers fail to see their interest in complying with fiscal and social security obligations for short (even extremely short) periods of time.19

p. 87; Llorens Espada J., "El uso de facebook en los procesos de selección de personal y la protección de los derechos de los candi- datos", in RDS, 2014, 68, p. 53. 18 We refer here in particular to those in issue no. 2/2014 of the Belgian publication European Labour Law Journal, which is almost entirely devoted to this subject. 19 McKay S., "Transnational Aspects of Undeclared Work and the Role of EU Legislation", in ELLJ, 2014, 5, 2, p. 116; McKay S., "Gli aspetti transnazionali del lavoro sommerso ed il ruolo della legislazione europea", in DLM, 2014, 1, p. 225; see also infra para. 3.2.1.

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175 Retrospective overview of 2014 COMPARATIVE labourw la literature 176 R evue based onarange ofcollective bargaining arrangement already inexistence inthisfield,albeitwithlimited effects as provoking proposals to create acollective bargaining system tailored to protect theirneeds.McCrystal’s proposal is guarantees. Since the post-Fordist era new types ofself-employment withweak bargaining positionshave emerged, of collective bargaining agreements, whereas the self-employed, beinginastrong position,would notneedsuch idea that subordinated workers being in a weak bargaining position should be protected first and foremost by means 2014, 5,2,p.132. in adopted onthe7 authorities: seeinparticulartheCommunication oftheCommission oftheEuropean Uniononundeclared work (COM(98)219final, of thetrend towards combined approaches. undeclared work shouldbetackled byusingabroad range ofdiversified instruments, basedonapositive evaluation under criminallaw. Y adopted to encourage regularization ofundeclared work can beeffective ifcombined withthethreat ofpersecution relationship intwo common-law systems, Australia eCanada. majority ofthearticles reviewed concentrated onthissecond typeofindependentwork. tends to beparticularly liable to abuseandtherefore needingstronger guarantees. Itcomes asnosurprisethatthe employment. Thislatter typeofself-employment whichresembles subordinated work from astructural pointofview tion between thoseconcerned withself-employment assuch,andthosedealingwitheconomically dependentself- protection for thework relationship itself,andfor thesocialsecurityofself-employed workers. examined the prospects for regulating these types of work relationships, and for adopting specific guarantees of nated work, and thatthis practice may entail abuses. This mayexplain whyarticles publishedonthistopic in 2014 self-employed workers for additionalmargins offlexibility whichgobeyond flexible workarrangements insubordi- common concern that,above all in timesofeconomic andfinancialcrisis, companies tend to look explicitly among what form suchsanctionsshouldtake. Empirical research 24 23 various nationallegal systems still differ widely from oneanother. concept ofundeclared work asaprecondition for effectively fightingit,inparticularsince thedefinitionsusedin 21 20 22 meglio, “nondichiarato”: unatipizzazione giuridica fondata sulconcetto di“attività remunerata”", in Possible SanctionsonCloser Examination",in superseded. Astheauthorexplains, oneofthemainpillars ofclassic labourlawisgradually losing ground, ments. However, suchexclusion hasnow become anachronistic, since theFordist modelsofproduction have been author highlighted that both countries traditionally excluded theself-employed from collective bargaining arrange - "Undeclared Work: AnActivity-basedLegalTypology. ReflectionontheKeynote Paper", in

IJCLLIR McCrystal S.,"DesigningCollective Bargaining Frameworks for Self-Employed Workers: Lessons from Australia andCanada", MitrusL.,"TheFightAgainst Undeclared Work: SanctionsandIncentives", in WilliamsC.C.,"PublicPolicy Approaches Towards theUndeclared Economy inEuropean Countries:ACritical Overview", in Ales E.,"Undeclared Work: AnActivity-basedLegalTypology", in According to theEU,undeclared work meansanypaidactivitywhichislegal initself,butwhichremains undeclared to thepublic fernadoRetrospec

droit In thelightofspecificEU statements onundeclared work Among thearticles dealingwithself-employment inthestrict sense,oneinparticularexamined thistypeofwork A closer examination of theseessays whichcovered different areas oftheworld reveals afundamental distinc- Many oftheessays underreview were alsodedicated to self-employment. Studiesonthistopic expressed the C T Some articles attempted to take acloser look onmeasures andsanctionsto fightundeclared work, considering

c omparé , 2014,30,2,p.217. he

protec

th du ofApril1998),p.4.

travail et labourlawyers journalsconfirmed writingintheIALLJ thatthe continuous expansion of tion

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s - o verview c employed iale ELLJ 23 , 2014,5,2,p.187.

workers 22 hasraised somedoubtsasto whethermechanisms 20 ELLJ 24 authors pointed to thecrucialissue ofdefiningthe Focusing ontheissue ofcollective bargaining, the

21 , 2014,5,2,p.156;Ales E.,"Dellavoro sommerso o, ELLJ , 2014,5,2,p.174;Waas B.,"Undeclared Work: ELLJ , 2014,5,2,p.167. DLM , 2014, 1, p.11;KončarP., i.e. ELLJ the , 2014 comparative labour law literatureespagne

they apply to specific types of precarious self-employed work. The author suggests that this experience could serve as a basis for constructing a general system of collective bargaining for the self-employed. Another essay dealt with the access of self-employed workers, in the strict sense of the term, to specific benefits of the Spanish social security system, according to law no. 35 of 2014.25

Many of the articles on economically dependent self-employment have emphasized the need to regulate this phenomenon and to protect the workers involved, particularly in times of economic crisis. One of the studies has investigated the reasons why national law-makers in Eastern European countries rarely paid any attention to this phenomenon, although they are now an integral part of the EU, whereas various EU member states have adopted protective measures for the self-employed, albeit with mixed results.26 The author argues that Eastern European countries still cling to the classic division between subordinated work (to which labour law applies) and self-employment (to which civil law applies); this division is firmly based on cultural and legal roots which hamper (even partial) progress towards the protection of self-employed workers operating in conditions of economic dependence. Furthermore, some essays examined developments in economically dependent self-employment in Europe during the years of the economic crisis. A comparison of various legal systems revealed that national Parliaments adopted definitions of the phenomenon that differ widely from one country to another.27 This implies that definitions used in different European countries are highly incoherent: Only some systems have introduced a legal definition of economically dependent work so far, while in others the debate on the opportunity of doing so is still going on. Moreover, there is a tendency, even at legislative level, to confuse this type of self-employment with disguised employment. Finally, some studies dealt with more specific issues, for example, with the compensation for loss incurred by self-employed workers following the withdrawal from the contract by the other party under the Spanish legal system.28

D Atypical work relationships

With regard to the so-called atypical work relationships, an analysis of the IALL journals in 2014 shows that authors most frequently examined fixed-term contracts on the one hand, and temporary agency work on the other. Some authors also considered part-time work, but usually these studies dealt not so much (or not exclusively) with this kind of work contract as such, but rather with the gender dimension frequently linked to it.29

Fixed-term employment was an issue mainly in European journals, for the most part in Italian ones. Labour lawyers considered essentially two aspects: firstly, they discussed the compatibility of national laws on fix-term employment and EU legislation, and secondly, they considered a particular form of fixed-term work, namely fixed- term contracts which terminate “without a cause”, that is without an underlying justifying reason. Italian labour law has recently introduced this type of contract which already existed for some time in other legal systems (such as in Germany). In practice, both aspects are closely linked, as the concern about the potential abuse inherent in such contracts was also among the concerns that motivated social partners and EU lawmakers to adopt the framework agreement on fixed-term work, later translated into Directive no. 70 of 1999.

25 Taléns Visconti, E. E., "Reflexiones en torno a los requisitos de acceso a la prestación por cese de actividad de los trabajadores autónomos (tras la aprobación de la Ley 35/2014, de 26 de diciembre)", in RDS, 2014, 68, p. 99. 26 Gyulavári T., "Trap of the Past: Why Economically Dependent Work is not Regulated in the Member States of Eastern Europe", in ELLJ, 2014, 5, 3, p. 267. 27 Rosioru F., "Legal Acknowledgement of the Category of Economically Dependent Workers", in ELLJ, 2014, 5, 3, p. 279. 28 Barrios Baudor G. L., "La compleja delimitación de la indemnización por daños y perjuicios en los supuestos de extinción del contrato de trabajador autónomo económicamente dependiente", in RL, 2014, 12, p. 69. 29 And hence the potential types of discrimination deriving from them; see further below para. 2.5.

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177 Retrospective overview of 2014 COMPARATIVE labourw la literature 178 R evue systems sung alsInstrument zurFlexibilisierung derArbeitsmärkte", in equalized. encadenamiento delos contratos detrabajo temporales delpersonal investigador", in 763; RomeiR.,"Lanuova disciplinadellavoro subordinato atermine", tempo determinato elastabilità delrapporto dilavoro: introduzione", regulatory aspectsofthisarrangement. hand to create fixed-term contracts terminating withouta cause up to amaximumof36months. called Poletti law,decree lawno.34of2014,converted into lawno.78of2014).Thisreform permitted ontheone blished in Italian journals, thus taking account of the Italian reform on fixed-term work contracts in 2014 (the so- were ofparticularinterest. that promote these atypical work relationships as tools for making the job market and its regulation more flexible the ECJ case-law onregulating fixed-term contracts inthepublicsector. contracts asimposedbytheEUlegislation mentionedabove. is now accelerated. Otherstudies have examined nationalprovisions adopted to combat theabuseoffixed-term private labourlaw,bymeans ofinstruments suchastheso-called contractualisation oftheirwork relationships, particular nature. As a consequence, the process of gradually assimilating the public sector employment regime to bute to creating instability intheregime governing publicwork ingeneral, because they donottake account ofits fixed-term contracts in thepublicsector, too; onthe otherside,there are negative effects asthese contracts contri- as itextends protection (above allfrom theviewpoint ofapplying theprinciple ofequaltreatment) to workers with 2014, 65,p.209. del contratto dilavoro atempo determinato con laDirettiva n. 99/70", 36 35 34 33 32 31 EuZA 30 37 a Tool for LabourMarket Flexibility -Italy", in mentioned imposed onnationallawmakers for regulating fixed-term contracts, bothingeneral, aswith regard to theabove- lavoro tramite agenzianell’ordinamento norvegese", in determinato: cronaca diunamorte annunciata", fornitura dipersonale ela disciplina delrapporto dilavoro (con l’agenzia)", in des travailleurs?", in 5, 3,p.334. its compatibility withEUlegislation. probably inspired by the German model, has raised many doubts among Italian legal scholars, alsowith regard to hand, thenew regime allows for thecontracts originally negotiated to berenewed upto five times.Thislaw reform,

BiasiM.,"La(a)causalità delcontratto atermine inEuropa. Riflessioni comparative sulle novità inItalia", in Allowing, with ajustifiable reason, to supersede thislimit,given thatthemaximumduration ofthefirst andthesecond are Suárez CorujoB.,"Nuevas formulas para combatir lacontratación temporal: laindemnización pordañosyperjuicios",in Concerning Spain: Mazuyer E., "Critical Analysis of ECJ Case Law on Fixed-Term Contracts in the Public Sector", in Concerning university researchers inthe Spanishlegal system: Ballester LagunaF., "Ladeficiente regulación de los límites al Concerning Estonia: Tupay P. K.,"Dasbefristete Arbeitsverhältnis alsAusdruckderFlexicurity nachestnischem Modell", in ChesalinaO.,"Temporary AgencyWork intheRussian Federation", in García Romero B., "LasEmpresas deTrabajo Temporal como agenciasglobales deempleo", in fernadoRetrospec

droit Besides somevery specificarticles onthedevelopment offixed-term employment with regard to certain legal With regard to temporary work arranged through employment agencies, various authors discussed indetail the The articles dealingspecifically withfixed-term contracts withoutajustifying causehave largely beenpu- The essays concerned withthefirst aspecthave examined theimpactofEU legislation andmore particularly , 2014,7,p.468.

c 30 omparé orto individualcategories ofworkers sui generis generis sui

travail RDT , 2014,2,p.134. type offixed-term contracts which terminate “without cause”.

de tive o 37

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s o verview c iale 36 ZIAS Studiesanalysing several European regimes oftemporary agencywork op. cit op. , 2014,28,p.153; Robin-OlivierS.,"Vers un nouveau régime dudétachement . 31 DLRI , thedebate hasturnedonthelimitations thatEUlegislation , 2014,141,1,p.91;Bassetti F., "Illavoro insomministrazione: la ZIAS 33 , 2014,28,p.113;RazzoliniO.,"Temporary Agency Work as op. cit. op. op. cit. op. op. cit. op. ZIAS ; LeoneG.,"L’utilizzo vincolato delcontratto atempo ; Leccese V., "Lacompatibilità dellanuova disciplina , 2014,28,p.33;Krause R., "Arbeitnehmerüberlas- ; Gragnoli E.,"Lanuova regolazione delcontratto a DLRI 32 Thiscase lawcan beassessed positively, , 2014,142,2,p.197. RDS , 68,p.209. RL , 2014,3,p.69;EvjuS.,"Il 34 DLM Ontheother ELLJ , 2014,3,p. , 2014, RDS , 2014 comparative labour law literatureespagne

With respect to part-time work, many essays addressed not only how various European countries regulate this type of work contract,38 but examined the gender aspect which is traditionally associated with this kind of work, including the topic of occupational segregation.39

Although the gender-based approach wholly dominated the discussion of part-time working in the labour law debate in 2014, nonetheless there were those who, while examining the impact of the most recent reforms in German labour law, paused to consider a particular form of part-time work, the so-called minijobs.40 This peculiar type of part-time work contract, where the salary must not exceed a threshold of 450 euros a month, is to a large extent exempted from ordinary tax and social security contributions, both for the employer and employee.41 The economic advantages linked to this type of part-time contracts have, over recent years, brought about a quite significant increase in their number and as a result, in the number of people who receive extremely low wages, in the majority of cases quite insufficient to live decently (the so-called working poor).

E The fight against old and new forms of discrimination

A further type of workplace vulnerability concerns various kinds of discrimination which workers often have to contend with. The debate concerns ‘traditional’ discrimination as well as forms of discrimination that have emerged more recently, as a result of the continuous economic and social change which also is affecting work relationships.

With respect to the traditional forms of discrimination gender discrimination still remains a core issue today: the fight against this form of discrimination is being conducted above all with regard to pay, and the discussions on this topic take place right across the various regions of the globe, not only in non-European journals42 but also in European ones.43 As mentioned earlier, some of the articles on gender discrimination have analysed the regulation of part-time working in depth which may entail significant discrimination, including in relation to salary and occupational segregation.44 With regard to sex discrimination and the connected topic of equal treatment, there has been some innovative research, for example in Italy, on the role of gender mainstreaming in collective bargaining agreements.45

38 Blázquez Cuesta M., Moral Carcedo J., "Women’s part-time jobs: “Flexirisky” employment in five European countries", in ILR, 2014, 153, 2, p. 269; Salladarré F., Hlaimi S., "Women and part-time in Europe", in ILR, 2014, 153, 2, p. 293. 39 Sparreboom T., "Gender equality, part-time work and segregation in Europe", in ILR, 2014, 153, 2, p. 245. 40 Borzaga M., "Luci ed ombre delle più recenti riforme del mercato del lavoro tedesco agli occhi del giuslavorista italiano", in LD, 2014, 1, p. 37. 41 While the employee under such contract is exempted from all social security contributions (but can opt to contribute to the pension scheme), the employer pays a reduced rate to the health insurance and pension insurance. 42 Smith M., Stewart A., "Equal remuneration and the Social and Community Services case: Progress or diversion on the road to pay equity?", in AJLL, 2014, 27, 1, p. 31. 43 Burton B., "Neoliberalism and the Equality Act 2010: A Missed Opportunity for Gender Justice?", in ILJ, 2014, 43, 2, p. 122; Castellano Burguillo M. E., "El impacto de género de las reformas laborales de 2012 y 2013", in RL, 2014, 7-8, p. 69. 44 Blázquez Cuesta M., Moral Carcedo J., "Women’s part-time jobs: “Flexirisky” employment in five European countries", op. cit.; Salladarré F., Hlaimi S., "Women and part-time in Europe", op. cit.; Sparreboom T., "Gender equality, part-time work and segregation in Europe", op. cit. 45 Ferrara M. D., "Il gender mainstreaming nei contratti collettivi: tendenze della contrattazione di genere", in DLM, 2014, 2, p. 519.

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179 Retrospective overview of 2014 COMPARATIVE labourw la literature 180 R evue tion basedontheworker’s age, confronto", in extranjeros ysuprotección penal",in employment conditions, seethe critical analysis for Spainprovided byCorrea Carrasco M.,"Losderechos delos trabajadores of the individual migrant worker, labour lawand/orsocialsecuritylaw. Most authors took theperspective oftheprotection (orthe lackofprotection) of migration lawand thelabourlawstatus ofmigrants and socialrightslinked to different typesofstatus under local labourmarkets inmanyhost states, includingtherisingnumberofnon-status migrants, theinterdependence and therefore inneedofstrengthening. concerns the access to justice for workers who have faced discrimination, not always guaranteed in an effective way, ments. These categories – except for the internal migration in the free movement area of the European Economic of amigrant worker, andlast butnotleast irregular migrants whosevisahasexpired orthosewithoutregular docu- refugees with a recognized refugee status, students, migrants with a permanent residence status, family members highly qualified migrants, migrants posted by their companies or intra-corporate transferees (ICT), asylum seekers, EU states commonly distinguish between EUinternal migrant workers, temporary orseasonalmigrant workers, labour market of the host state, and the effects on the migrant workers’ countries of origin, in terms of brain drain. across categories. the first timesince 2007,andalsoinflows of temporary migrant workers are increasing albeitwithlarge variations a key feature ofglobal economy. Permanent migration flows to theOECD countries increased sharply in2014 for that 105 million persons are working in a country other than their country of birth. phenomenon thatturnedinto oneoftheprominent issues discussed authors in2014.TheILO byIALLJ estimates not yet turnedonthisdevelopment in2014. asylum seekers inthe OECD area hasalso increased steadily since 2010,reaching a 10-year peakin2014, but IALLjournalshave 53 52 51 50 49 48 47 46 54 Martí J.,"Lalegislación antidiscriminatoria porrazón deedadavanzada enEstados Unidos",in irregular status undermigration and/orlabour law. viour ofemployers whereas manycountries tend to invoke criminallawrather to criminalizethevictims: migrant workers with to migrant workers andwillbeaddressed inthefollowing paragraph.

SeeOECD, Lamarche L.,"Human Rights,SocialSecurityandMigrant Workers", in BlanpainR.,"TheUseofLanguagesinEmployment Relations",in Santagata deCastro R.,Santucci R.,"Diritto antidiscriminatorio eaccesso allagiustizia: Unioneeuropea, GermaniaeItalia a Fiorentino A.,"Lesdiscriminations religieuses etraciales", in MinéM.,"Discriminationliéeàl’état desantéetlicenciement d’unsalariéatteint duVIH",in Álvarez Cuesta H.,"Igualdadynodiscriminacióneneltrabajo porrazón deidentidadsexual", in Alon-Shenker P., "NonhiringandDismissal ofSeniorWorkers: IsItAll About Money?", in For the limitations of criminal law as a tool to offer protection for vulnerable migrant workers who are subject to abusive fernadoRetrospec

droit i i i Other authors considered forms ofdiscriminationthathave emerged more recently, inparticular,discrimina- Correspondingly, aconsistent articles portionofIALLJ took upthetopic ofmigrant work asacentral feature of Finally, regarding themost recent forms ofdiscrimination, IALL journalsmainly covered two ofthem.Thefirst In general, migrant workers will be treated differently according to their legal status under immigration law:

c omparé DLM International Migration Outlook 2015 Outlook Migration International

du , 2014,2,p.335.

travail 53 M igrants

Globalization hasled to adramatic increase inmigration for work andotherpurposes,a et

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s 46 é c ontheirgenderidentity, 54 urité

RDS but some authors focussed onthe potential effects ofmigrant work on the local at

s , 2014,67,p.45.Herefers to criminallawasaninstrument to combat theillicitbeha-

o work verview 50 c Thesecond tackles the language dimensionemerging above allinrelation iale , OECDPublishing,Paris 2015, pp.16ff. According to theOECD,numberof : L abour 47 RDCTSS ontheirhealth(HIV-AIDS),

law BCLR , 2014-1,p.93. BCLR

, 2014,87,p.1. and 51 , 2014,84,p.9.

social

CLLPJ security 52 TL Labour mobility has become RDT 48 , 2014,123,p.109. andonreligion andrace. RDS , 2014,35,2,p.159;Baseiria , 2014,2,p.120. , 2014,65,p.93.

issues 49 2014 comparative labour law literatureespagne

Area - can be found also in non-European states, namely Australia or Canada, whereas in China some very special problems are linked to internal migration from the rural areas to the urban centres.55

The authors highlighted various aspects of the fact that each status entails different possibilities and restrictions concerning integration into the labour market.

A General Issues

The phenomenon of migrants at work has been treated with respect to some more general issues at a micro level, such as language in employment relations56 and at a macro level in terms of brain drain and brain gain as effects of international labour migration of highly qualified migrants (Fernández Fernández 2014).57

An important aspect of labour relations in international labour mobility is the use of languages in labour relations, a topic often neglected in labour law literature but of the utmost practical impact, e.g. the language of employment documents, access to information, both for companies and posted workers; oral relations between employer and employee, or the language of transnational collective agreements. Language-related circumstances often lead to serious disputes which have not yet received sufficient attention by policy-makers or legislators. Language as a major challenge in cross-border migration of workers is treated in a comprehensive way in an original book authored by Blanpain.58

The growing international mobility within multinational enterprises and its impact on labour relations has also been analysed in relation to highly qualified workers. The Spanish labour lawyer Fernández Fernández59 reviewed numerous articles on case studies of the mobility of highly qualified workers published by the German IZA - Forschungsinstitut zur Zukunft der Arbeit during the period 2001-2013, and he provided a comparative analysis of their conclusions and findings concerning various aspects of brain gain and brain loss, including hidden brain drain and the often neglected gender dimension of the brain drain linked to the downshifting of female migrants’ professional attainment when they accept some type of care work or work as domestic aids, far below their professional qualifications.

B Vulnerable categories of migrant workers

Many authors identified an increasing cause of concern in the situation of migrants with precarious work conditions, in particular migrant workers deemed to be in a situation of vulnerability: irregular migrant workers on the one hand, temporary migrant workers60 on the other. Both situations may impact not only the migrant workers’ individual and collective rights under labour law, but may be used by employers and legislators as a device to lower labour standards which in turn could have effects on domestic labour conditions.

55 Qinxuan P., "Multi-layered Gaps between ILO Conventions and the Chinese Legal Protection for Migrant Women Workers as Domestic Helpers in China", in BCLR, 2014, 89, p. 31; Wang Z., "China’s “labour shortage” and migrant workers’ lack of social security", in ILR, 2014, 153, 4, p. 649. 56 Blanpain R., "The Use of Languages in Employment Relations", op. cit. 57 Fernández Fernández R., "La movilidad internacional de trabajadores altamente cualificados (Retos para los juristas a partir de la lectura de los discussion papers del Forschungsinstitut zur Zukunft der Arbeit)", in RL, 2014, 4, p. 57. 58 Blanpain R., "The Use of Languages in Employment Relations", op. cit. 59 Fernández Fernández R., "La movilidad internacional de trabajadores altamente cualificados (Retos para los juristas a partir de la lectura de los discussion papers del Forschungsinstitut zur Zukunft der Arbeit)", op. cit. 60 In practice, temporary migrant workers are a mixed group, in terms of categories and skills. According to the OECD, they include highly skilled engineers or IT consultants on assignment, together with ICT people, working holiday-makers, migrant trainees, au pairs, and seasonal workers in agriculture and hospitality. Different rules of migration law apply to these different categories.

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181 Retrospective overview of 2014 COMPARATIVE labourw la literature 182 R evue rights cannot beenforced withouttheconsequences ofpotential detection, detention, anddeportation. full protection; itprovides for protection underlabourlaw,butnotimmigration law,sothatthelabourlaw termed “protection with consequences approach” which is acompromise solutionbetween non-protection and perspective, Selberg against employers ofillegally staying third country nationals).Ontheimpactofsanctions directive onSweden ted bytheEUSanctionsDirective 2009/52/ECof18 June2009(providing for minimumstandards onsanctionsandmeasures Irregular Migrants inSweden", Irregular Migrants inSweden", Immigration LawandLabor Law", Immigration LawandLaborLaw", conditions. Immigration LawandLaborLaw",in that non-protection actsasadisincentive to employment, from theirregular immigrant perspective. protection approach” which disconnects immigration and labour law, anddenieslabourrightsontheassumption adopted indifferent legal systems in dealingwithbackpayclaimsofirregular migrants: (1)themodeltermed “non- the discussion ontheinterplay between immigration lawandlabourbyanalysing three different approaches tions on employers of irregular immigrants and by introducing a limited right to back pay. Dewhurst contributes to addressing thepullfactors ofirregular migration andinsimultaneously reducing exploitation, byimposing sanc- menon ofirregular immigration assuchnortheexploitation oftheseworkers. Amore recent attempt consists in have engaged in various ways to tackle irregular immigration, these measures could neither eliminate the pheno- carious working conditions, withlow ornopayment,long hours, anddangerous conditions ofwork. AlbeitStates have led to Swedish unionsorganising andrepresenting irregular migrants. tional control and protection of the unions constitute a severe challenge to the Swedish welfare state model and over timeinthecase ofSweden, arguing thatprecarious livingconditions, underpaidlabouroutsidetheorganisa- effective protection offundamental labourrightsreduces theemployer incentive to hire suchworkers. justifications: theideathathumanrights apply to allpersons regardless oftheir legal status, andtheideathat 65 64 63 62 61 68 67 66 aspects of undeclared work and the role of EU legislation in maintaining such irregular work. UN Convention ontheRightsofMigrant Workers andMembers oftheirFamilies. protection approach -asthemost modernapproach inthearea ofimmigrant rights-hasbeenadopted bythe1990 second modelandisseenasthemost inlinewiththeprotection ofhumanrightsstandards. Analmost full- or deportation. (3)Thefull-protection approach isthemodelthatseeksto avoid thenegative consequences ofthe of legal assistance, orthedifficultyofproving theemployment relationship, butmost ofallthe fear ofdetection labour rightsare available inthiscase, they are notenforceable inpractice, dueto various obstacles, includinglack November 2015). been signedbythirty-eightstates, andratified by forty-eight. NoEUmember state has yet signed or ratified this treaty (asof in Sweden", in "The Lawsof“Illegal” Work andDilemmas inInterest Representation onSegmented LaborMarkets: Ápropos Irregular Migrants

McKayS.,"Transnational AspectsofUndeclared Work andtheRole ofEULegislation", Selberg N.,"TheLawsof“Illegal” Work andDilemmas inInterest Representation onSegmented LaborMarkets: Ápropos Selberg N.,"TheLawsof“Illegal” Work andDilemmas inInterest Representation onSegmented LaborMarkets: Ápropos Dewhurst E., "Models of Protection of the Right of Irregular Immigrants to Back Pay: The Impact of the Interconnection Between Dewhurst E., "Models of Protection of the Right of Irregular Immigrants to Back Pay: The Impact of the Interconnection Between Themodelisbasedonthevery tenuous argument that irregular migrants are attracted to astate dueto itslabourrightsand Dewhurst E., "Models of Protection of the Right of Irregular Immigrants to Back Pay: The Impact of the Interconnection Between Cf fernadoRetrospec

droit As Dewhurst reports 1 -Irregular migrant workers . International Convention on theRights of Migrant Workers of 1990, entered into force on 1 July, 2003. This Convention has

c omparé CLLPJ

travail , 2014,35,2,p.247,259f. 66 discusses thesituationofillegal (undocumented) migrant workers andpolicyapproaches

et 61

de , there are between thirtyto forty millionirregular immigrants worldwide, enduringpre- tive o

op. cit. op. cit. op. la

s op. cit. op. op. cit. op. é c CLLPJ urité , p.266f. , p.227. , p.245.

s o , 2014,35,2,p.217. verview c iale

This approach isfollowed bymost EUcountries andisalsoclosest to thatadop- 67 McKayhasanalysed thetransnational op. cit. op. 64 Theapproach isbasedontwo ; McKayS.,"Gliaspetti transna- 68 She argues that it is 62

(2) Themodel 65 cf Inasimilar . Selberg N., 63 Albeit 2014 comparative labour law literatureespagne

the structure of the labour market that drives undeclared work, particularly in the context of transnational migration. She also identifies a global policy trend supported at EU and national state levels that favours temporary, circu- lar and selective migration, and thereby the conditions in which undeclared work grows. McKay also addresses the issue of false (or bogus) self-employment in the context of posting - a form of employment defined as economically dependent self-employment.69 Migrant workers are drawn to this form of work, particularly where immigration law does not permit direct employment, as has been the case for Bulgarian and Romanian citizens during the transitional period following EU accession. It has been pointed out that bogus self-employed migrant workers are more vulnerable than dependent employees as they are excluded from collective bargaining, and often also from social insurance systems. The growing phenomenon and its implications are also discussed by Muller who highlights that mobility of bogus self-employment threatens the social model of the host States.70

2 - Temporary migrant workers

Various aspects of temporary migrant work are discussed for Australia,71 Canada,72 and for the EU.73 In the case of Australia, Howe is concerned about the effects of visa programmes for temporary overseas migration to fill skill shortages in the domestic economy and the relevance of new pathways to avoid standard visa arrangements.74 Legislative debates in Australia clearly reflect the fear that migrant work would lead to the displacement of Aus- tralian jobs by foreign workers in semi-skilled occupations in the resources industry. They seek to protect local job opportunities rather than the migrant workers, e.g. by strict obligations for local labour market testing, obligations to invest in the training needs of the local workforce, and to prioritize local workers, recently retrenched workers and other groups with high unemployment rates. Howe’s focus is the overall incoherence of the current Australian temporary migration program as such, and the absence of a comprehensive approach of properly identifying skill shortages in the local labour market.

On the contrary, the authors who discussed temporary migration in the case of Canada75 drew attention to the precarious migration status of temporary migrant workers in the Canadian Labour force, especially when they lack any formal migration status. The general idea of precariousness in the labour market relates to “limited social benefits and statutory entitlements, job insecurity, low wages, and high risks of ill-health”.76 Social stratification on the basis of factors as gender, race, and also migration status aggravate precariousness. Migration status is directly linked to inferior conditions of work, and even authorized temporary foreign workers have limited labour mobility,

zionali del lavoro sommerso ed il ruolo della legislazione europea", op. cit.. 69 McKay S., "Transnational Aspects of Undeclared Work and the Role of EU Legislation", op. cit. 70 Muller F., "Cross-Border Mobility of “Bogus” Self-Employed Workers: A Lack of Legal Framework Coupled with Protection of Economic Rights", in ELLJ, 2014, 5, 3-4, p. 306. 71 Howe J., "Report: Enterprise migration agreements under the subclass 457 visa: Much ado about nothing?", in AJLL, 2014, 27, p. 86. 72 Marsden S., "Silence Means Yes Here in Canada: Precarious Migrants, Work and the Law", in CLELJ, 2014, 18, 1, p. 1; Vosko, L. F., "Tenuously Unionised: Temporary migrant workers and the limits of Formal Mechanisms Designed to Promote Collective Bargaining in British Columbia", in ILJ, 2014, 43, 4, p. 451. 73 Hunt J., "Making the CAP Fit: Responding to the Exploitation of Migrant Agricultural Workers in the EU", in IJCLLIR, 2014, 30, 2, p. 131. 74 Howe J., "Report: Enterprise migration agreements under the subclass 457 visa: Much ado about nothing?", op. cit. 75 Marsden S., "Silence Means Yes Here in Canada: Precarious Migrants, Work and the Law", op. cit.; Vosko, L. F., "Tenuously Unionised: Temporary Migrant Workers and the Limits of Formal Mechanisms Designed to Promote Collective Bargaining in Bri- tish Columbia", op. cit. 76 Vosko L.F., "Precarious Employment: Towards an Improved Understanding of Labour Market Insecurity", in L.F. Vosko (ed.), Precarious Employment: Understanding Labour Market Insecurity in Canada, 2005, McGill University Press, Montreal.

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183 Retrospective overview of 2014 COMPARATIVE labourw la literature 184 R evue infringements, exploitation and even forms offorced labour, as Hunthaspointed out. governing work across borders. bargaining unit.Limitsofformal mechanismsare closely linked to labourlaw’s subsidiarityto legal frameworks ting collective bargaining, e.g.themechanismsbywhichBCLabourRelationsBoard determines anappropriate tish Columbia).Theauthorshows thattemporary migrant workers are ill-served bymechanismsaimedatpromo- securing access to theirlabourrightsthrough representation andmeaningfulcollective bargaining inCanada(Bri- as well aslesser entitlements to healthandemployment insurance. nationals from international companies to subsidiaries intheEUwasnotyet atopic in2014IALLJ. Directive 2014/36/EU,OJ 2014L94/375. experts thatisaddressed invarious articles. However, inthecontext ofinternational mobilityof posted workers, there isagrowing concern amonglabourlaw multiple sources ofvulnerability. workers, inthatthey give apolitical voice to migrant care workers, andcontribute to form political agencydespite are better qualifiedthanothercivilsocietyor community organizations to meetthespecificneedsofmigrant care Mundlak andShamirexplored thefeasibility oftrade unionismfor migrant care workers arguing thattrade unions section with the intimate nature of their work and the gendered dimension of care work. In the case of Israel, 21 ff. 2014, 153,1,p.93. 80 79 78 77 83 82 81 and defacto hampers prospects ofmigrant workers to seekredress for violationsoftheirstatutory rights. temporary labourmigration, butbytyingmigration status to employer discretion, federal lawfavours employers workers, aggravating theemployer-employee power imbalance. Canada’s immigration policiesstrongly encourage arise mainly from federal lawthatgives employers agreat dealofdiscretion over thestatus oftemporary foreign job securityandmobility,illegally low payandlong hours, andvarious healthandsafety risks.Protection gaps British Columbia.Thestudy indicates thatprecarious migration status wasassociated withdeskilling,decreased article which is based on an empirical study conducted with migrants andmigrant-serving agenciesinVancouver, workers iswagediscrimination,poorworking conditions, andinabilityto unionize,asMarsden explains inher within thefree movement area oftheEUare less atriskof exploitation, e.g.incase ofintra-corporate transfers. subsidies conditional onrespect for employment rightsfor allworkers. Othertypesoftemporary migrant work use theEUcommon agricultural policyasadevice to better protect seasonalagricultural workers, bymakingfarm for third-country nationalsundertaking seasonalwork. According to Hunt,amore efficientapproach could be to Workers’ directive has beensoughtthrough changesinimmigration lawrather thanlabourlaw. InFebruary 2014,anew Seasonal into effective legal entitlements”. Inthecase ofinternal migration, Chinastill lacksprotection andneglects human

MundlakG.,ShamirH.,"Organizing migrant care workers inIsrael: Industrial citizenship andthetrade unionoption",in For posting issues seebelow. Theintra-corporate transfer directive 2014/66/EUof15May 2014whichconcerns thetransfer ofhighly skilled third-country Directive ontheconditions ofentryandstay ofthird-country nationals for thepurposeofemployment asseasonal workers, HuntJ.,"MakingtheCAP Fit:Respondingto theExploitation ofMigrant Agricultural Workers intheEU", OnOECDcountries’ reliance ontemporary migrant workers seee.g.OECD,International Migration Outlook 2015, Marsden S.,"Silence MeansY fernadoRetrospec

droit The situationofmigrant agricultural workers intheEUdisplayssimilarfeatures ofprecariousness, rights Additional vulnerability for migrant workers isassociated withmigrant care work, whichstem from theinter- 3 -Migrant care workers Vosko’s article addresses thespecificproblems of temporary migrant workers

c omparé

travail 80 wasadopted, whichcreates narrowly defined possibilities for a legal right to work and reside

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la es Here inCanada:Precarious Migrants, Work andtheLaw",

s é c urité 83 Thisshouldhelp“lobby for, implement andtranslate norms andregulations

s o verview c iale 82 77 Acommon experience oftemporary foreign op. cit. op. 78 intheagricultural sector in 79 Relieffor theseproblems op. cit. op. op.cit ., pp. ILR 81 ,

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dignity for one of the most vulnerable social groups, namely migrant women workers as domestic helpers: as women, as migrants with rural Hukou and being domestic workers, they face triple disadvantages entailing insufficient access to social welfare and public services, and exclusion from the labor law system because they are not considered as “employees”. The author Qinxuan draws the attention to the persisting legal gaps in ILO standards and in the Chinese domestic legal system, and highlights the barriers that make ILO instruments ineffective in China.84

C Posted workers

Posting of workers is a particular form of temporary migrant work that has been addressed under various aspects, as a sincere concern not only felt by lawyers, but also for the political debate on European integration. The fundamental question with posting is how much employment protection should host states provide to posted workers? This issue has occupied the EU and national legislatures, the EU Court of Jus- tice, national courts and now even the European Committee of Social Rights, established in the framework of the Council of Europe’s Social Charter.85 Special vulnerability has been associated with the posting of economically dependent self-employed migrant workers, especially in the construction sector.86 But posting is also seen as a privilege for some migrant workers who may derogate from domestic labour law rules. This applies in particular to those migrants who as economically independent workers can profit from the liberalization of economic activities.87

The EU legislator has recently amended the legal framework on posting88 which has prompted several articles in 2014 labour law journals.89 This new directive aims to prevent, avoid and combat the abuse and circumvention of the applicable rules by undertakings taking improper or fraudulent advantage of the freedom to provide services under EU law. Some authors are rather pessimistic about the improvements to be expected in practice, as the normative context related to the free movement of services based on a neoliberal concept of market integration rather than on the protection of core labour rights still allows for normative spaces with “lesser protection” that employers can use in order to cut down employment costs.90

84 Qinxuan P., "Multi-layered Gaps between ILO Conventions and the Chinese Legal Protection for Migrant Women Workers as Domestic Helpers in China", op. cit. 85 The case law of the ECJ on posting which restricted employment protection that posted workers would receive in the host state was criticized by some states and trade unions, especially in Northern Europe. For an appraisal of posting cases under Norwegian law that were brought before the EFTA Court (and the Norwegian Supreme Court), and a posting case under Swedish law submitted to the ECSR see Barnard C., "European Developments. More posting", in ILJ, 2014, 43, 2, p. 194. 86 Muller F., "Cross-Border Mobility of “Bogus” Self-Employed Workers: A Lack of Legal Framework Coupled with Protec- tion of Economic Rights", op. cit.; Lillie N., Wagner I., Berntsen L., "Distacco dei lavoratori, violazione delle norme e cambiamento istituzionale", in DLRI, 2014, 141, 1, p. 71. 87 Robin-Olivier S., "Vers un nouveau régime du détachement des travailleurs?", op. cit. 88 The aim of the new Enforcement Directive (Directive 2014/67/EU) of 15 May 2014 is to improve the implementation and application in practice of the previous Directive on the posting of workers (Directive 96/71/EC), thereby guaranteeing better protection of posted workers and a more transparent and predictable legal framework for service providers. 89 McKay S., "Transnational Aspects of Undeclared Work and the Role of EU Legislation", op. cit.; Muller F., "Cross-Border Mobility of “Bogus” Self-Employed Workers: A Lack of Legal Framework Coupled with Protection of Economic Rights", op. cit.; Robin-Olivier S., "Vers un nouveau régime du détachement des travailleurs?", op. cit. 90 With special emphasis on the construction sector: see Lillie N. et al., "Distacco dei lavoratori, violazione delle norme e cambiamento istituzionale", op. cit., p. 80 f. who consider the integrated European context as a factor that allow employers to circumvent the limits imposed by national regulations. This entails a segmentation of the protections in the labour market to the detriment of migrant workers.

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185 Retrospective overview of 2014 COMPARATIVE labourw la literature 186 R evue legal framework, various protection schemesbeyond unemployment insurance viding for long-term benefits,andprotection against theriskofunemployment -ariskwithblurringboundaries to the 2014overview. Authors concentrated ontwo majorareas ofsocialprotection: old-ageprotection schemespro- demographic and/or economic challenges have againbeenaspecialfocus journalsanalysed inalmost allIALLJ for of bilateral arrangements to improve fair treatment andsocialsecurityofIndianworkers abroad. aimed atrestricting thewithdrawal ofaccumulated social securitycontributions byforeign nationalsandanarray Protectors", in curity", in Africa discuss these contemporary developments, in particular the human rights perspective, social security agreements to safeguard social protection for migrant workers in their life course. Several authors international socialsecuritylaw. Anincreasing numberofcountries today have entered into bilateral ormultilateral patterns ofmigration andhumanrightsdevelopments, there isanurgent needfor acoherent andworkable bodyof law thatseverely impactaccess to socialsecuritybenefits.Intheera ofeconomic globalization andinview ofnew gration from poorer non-Western countries, territoriality of rights is reported for Australia which relies on restrictive unilateral responses to new types of immi- working age.Current pensionreforms andunderlying policiesare themost prominent topic debated withrespect benefits for those withdiminishedabilities to work or even pre-retirement schemes for theunemployed atadvanced 2014, 84,p.153. 2014, 84,p.125. 97 96 95 94 93 92 91 101 100 99 98 ments of European social coordination law of rightsfor Filipinosworking overseas. recente giurisprudenza dellaCorte diGiustizia", in security relations inorder to limittheexport ofsocialbenefits. as inthecase ofinformal migrant workers inCosta Rica, lenges inthefieldofmigrant work. Nationalinitiatives maybeaimedatincreasing socialprotection for migrants,

Pellissery S.,Dey BiswasS.,Sengupta M., "SocialSecurityfor Migrants inaSegmented Economy. TheCaseofIndia",in Ofreneo R.E.,Sale J.P., "SocialSecurityandMigrant Workers inthePhilippines:SocialProtection for theCountry’s Economic Gatica LópezG.,Pacheco-Jiménez J.F., "International Migration inCosta Rica: Challenges from thePresent Context", in Pennings F., "Coordination ofSocialSecurity withintheEUContext", in OlivierM.,"SocialSecurityDevelopments intheSADCRegionandFuture Prospects for Coordination", in JiménezFernández A.,"SocialSecurityCoordination inIbero-America: Ibero-American Multilateral Agreement onSocialSe- Vonk G.,"SocialSecurityRightsof Migrants. Linksbetween theHemispheres", in Arellano OrtizP., "SocialSecurityProtection for Migrants. ANeedfor LegalIntervention", in Lamarche L.,"Human Rights,SocialSecurityandMigrant Workers", Van Everdingen M.,Fehling P., Werner-de BuckT., "Bilateral Treaties intheNetherlands", in BoucherA.,Carney T., "SocialSecurityfor Migrant Workers andtheir Families inAustralia", in fernadoRetrospec

droit I Finally, andinadditionto labourlawchallenges, migrant workers mayalsoface restrictions undermigration D S 95 and Europe.

c V omparé BCLR ocial BCLR , 2014,84,p.71.

S 92

security travail thelinksbetween thedifferent hemispheres oftheglobe, , 2014,84,p.167. ocial 96 Social security developments and social policy responses to the enduring impact of either Special attention has been paid to recent unilateral solutions to tackle contemporary chal-

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security

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migrant

s o verview c cf

iale 98 and . Chiaromonte W., Giubboni S., "I regolamenti europei di sicurezza sociale nella Indiahasdeveloped amixed approach, combining unilateral measures 100 RGL

workers

whereas theNetherlandsattempt to renegotiate bilateral social v ocational , 2014,I,p.481. 97 orinthePhilippineswhichdeveloped aMagnaCharta stricto sensu stricto 101

op. cit. op. training BCLR , 2014,84,p.117.Onrecent case lawdevelop - BCLR , suchassickness insurance, invalidity 93 regional initiatives inLatinAmerica, , 2014,84,p.47. BCLR BCLR BCLR 91

, 2014,84,p.31. the overall international , 2014,84,p.215. , 2014,84,p.187. BCLR 99 Atrend towards , 2014,84,p.81. BCLR BCLR 94 , ,

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to EU member states.102 Yet the issue of old-age protection and the implications of pension systems and different pension models have also raised considerable attention among authors from other parts of the world (Peru, Mexico, Argentina, Malaysia, and New Zealand).

The second significant current legal issue in the area of social protection debated in 2014 is the role of unemployment schemes, their link to employment policies, and to policies aimed at improving employability and labour market participation. This overarching topic has been explored extensively among scholars from EU countries. Still, two publications considered employment policies in non-European states.103

In addition to the numerous publications related to these specific social contingencies several articles have embarked on more general issues of legal doctrine in social protection law, for example, on the interplay between the European financial sustainability regime and the evolution of social insurance, welfare benefits or employment policies,104 on concepts of fraud in social security in Spain, and the tensions between fraud detection and personal data protection,105 or on the use of foreign legal doctrines such as the German concept of victim’s compensation for a variety of social benefits introduced in Poland106 which provide protection for different risks and damage likely to impact strongly on the normal course of life. The specific compensation schemes may cover severe health damage following obligatory vaccination, injuries that individuals suffer in non-work related accidents when they are performing activities in the public interest, damage from environmental disasters or damage that political activists suffered during the post w²ar totalitarian regime and which entailed unemployment and later very low public pensions.

Another more general topic that is linked to the overall structure and the legal features of social protection is the topic of minimum income guarantees and the species of non-contributory benefits that should protect against gaps in contribution-based social security schemes.107 Minimum income guarantees provided as non-contributory

102 For Portugal: Reinhard H.-J., "Portugal in der Sozial- und Finanzkrise: Rentenkürzungen verfassungswidrig aber kein Verstoß gegen die EMRK", in ZIAS, 2014, 1, p. 94; Slovenia: Mrzljak M., "The Pension reform in Slovenia in 2013", in ZIAS, 2014, 1, p. 105; Spain: Toscani Giménez D., "La revalorización de las pensiones en la Ley 23/2013, de 23 de diciembre y su constitucionalidad", in RL, 2014, 2, p.91; Rodríguez-Piñero y Bravo-Ferrer M., Casas Baamonde M. E., "El factor de sostenibilidad de las pensiones de jubilación y la garantía de la suficiencia económica de los ciudadanos durante la tercera edad", inRL , 2014, 5, p. 1; López Gandía J., "La dimensión constitucional de la reforma de las pensiones", in RL, 2014, 5, p. 25; Ruesga Benito S., "En recuerdo de los trabajos del comité de expertos para la elaboración del factor de sostenibilidad de las pensiones públicas. La visión de un experto perplejo", in RL, 2014, 5, p. 51; Tortuero Plaza J. L., "Ley 23/2013, de 23 de diciembre, reguladora del Factor de Sostenibilidad y del Índice de Revalorización del Sistema de Pensiones de la Seguridad Social: régimen jurídico", in RL, 2014, 5, p. 109; Suárez Corujo B., "Las increíbles pensiones menguantes: la metamorfosis del sistema público de pensiones a través del factor de sostenibilidad", in RL, 2014, 5, p. 131; González Ortega S., "El nuevo régimen de revalorización de las pensiones", in RL, 2014, 5, p. 153; Alemán Páez F., "El régimen fractal de la jubilación. Marco institucional y consideraciones críticas de un reformismo inacabable", in TL, 2014, 123, p. 57; Italy: Casillo R., "Benessere pensionistico e scarsità delle risorse dopo la L. 214/2011", in DLM, 2014, 2, p. 371; Casillo R., "Profili di (in)sostenibilità giuridica e sociale dell’attuale tutela pensionistica di vecchiaia", in DLM, 2014, 3, p. 611; Andreoni A., "Le pensioni nel passo del gambero", in RGL, 2014, I, p. 237. 103 For New Zealand: Fletcher M., Duncan G., "Developments in Social Legislation and Policy in New Zealand 2013", in ZIAS, 2014, 1, p. 47, and for Peru: Gamarra Vilchez N., "Le droit du travail et la sécurité sociale au Pérou: Évolutions et défis de ces vingt der- nières années", in RDCTSS, 2014-1, p. 40. 104 Bonardi O., "La nuova governance sociale europea", in RGL, 2014, I, p. 257; Faioli M., "Deprivazione materiale, assistenza sociale e diritti sulle cose", in RGL, 2014, I, p. 279; Sgroi A., "La tutela dei diritti previdenziali e assistenziali nella crisi", in RGL, 2014, I, p. 221; Bekker S., Klosse S., "The Changing Legal Context of Employment Policy Coordination. How do Social Policy Issues Fare after the Crisis?", in ELLJ, 2014, 5, 1, p. 6. 105 Fernández Orrico F.J., "La teoría de los cuatro elementos del fraude en las prestaciones de seguridad social", in RL, 2014, 1, p. 85. 106 Stopka K., "Über die soziale Entschädigung in Polen", in ZIAS, 2014, 1, p. 1. 107 For Spain: García Romero M. B., "Lagunas de cobertura del sistema español de seguridad social y la necesaria reordenación del nivel no contributivo, in RDS, 2014, 68, p. 67; for Italy: Bozzao P., "Reddito di base e cittadinanza attiva nei nuovi scenari del

English Electronic Edition - 2015/3

187 Retrospective overview of 2014 COMPARATIVE labourw la literature 188 R evue increíbles pensionesmenguantes: lametamorfosis delsistema público depensionesatravés delfactor desostenibilidad", a Commission ofindependentexperts -composed ofeconomists only butive inequityasthey reproduce disadvantages accumulated inthelabourmarket. well asinterms ofintergenerational equity,whereas contributory socialsecuritysystems tend to result indistri- universal benefits can alsobe conceptualized asaninstrument to enhance equityin terms ofgenderequityas to theevolution oflife expectancy inSpain. nability factor, butalsolinkingthisfactor more to theoverall budgetary stability ofthepublicpension system than (Law 23/2013)departed from theprevious approach, notonly anticipatingtheimplementation ofthenovel sustai - challenges ofincreased life expectancy andtheretirement ofthebabyboomers. Butalready in2013,anew reform the introduction ofanovel “sustainability factor” to thepublicpensionsystem by2027to meetthedemographic on therightto anappropriate andsustainable old-agepension.Only in2011reform legislation hadannounced this mechanism for pension calculation and adjustment implies “a silent metamorphosis” referring to it as a merely “parametrical change to the existing pension calculation parameters” whereas, in reality, some authors commented thatthelegislator triedto conceal thetrueimpactofnew sustainability factor when bable", garantía delasuficiencia económica de los ciudadanosdurante la tercera edad", de sostenibilidad", savings inpensionexpenditure. applicable asof2014.Interventions ontheadjustment rules are amongthepreferred measures to achieve immediate short-term factor ofannualadjustment of thepensiondependentonrelation between income andexpenditure oftheretirement system, establish equalconditions for allretirees, irrespective ofthedemographic cohort they belong to, applicable asof2019;andthe político?", in caso argentino", in of theretirement ageandofthecontribution period. might explain whythelegislator refrained from considering alternative interventions suchasthegradual increase system. Authors complained inparticularthatnosocialdialogue took place before thereform wasenacted, which 114 113 112 111 110 109 108 welfare", in cit. in thefuture. aggravate risksofprecariousness ofindividualsandprovoke failure inintended results andthusfurthercorrections employment policieshasbeenenacted withoutanysubstantial socialdialogue, asdisregarding thisprinciple may fundamental role ofsocialdialogue. Itisdisturbing thatimportant recent reform legislation for pensionsandfor special attention to thegovernance ofsocialsecurityreform throughout thereform process andemphasizedthe had professional linksto theprivate insurance sector. constraints and who, moreover, were not as independent as they were supposed to be, as some of these experts

; Monereo Pérez J.L.,"Diálogo socialyreforma delaspensiones:¿políticas deconsenso sociopolítico aldirigismo Suárez Corujo B., "Las increíbles pensiones menguantes: la metamorfosis del sistema público de pensiones a través del factor Alemán PáezF., "Elrégimen fractal delajubilación. Marco institucional yconsideraciones críticas de unreformismo inaca- Rodríguez-Piñero yBravo-Ferrer M.,CasasBaamondeM.E.,"Elfactor desostenibilidad delaspensionesjubilaciónyla Suárez Corujo B., "Las increíbles pensiones menguantes: la metamorfosis del sistema público de pensiones a través del factor TheSpanishsustainability factor iscomprised oftwo distinct elements: thefactor ofintergenerational equity whichstrives to For Spain:LópezGandíaJ.,"Ladimensiónconstitucional delareforma delaspensiones", For Argentina: MinoldoS.T., Sazatornil M.J.,"Inequidadesdistributivas delaprevisión socialcontributiva. Aproximación al fernadoRetrospec

droit Some authors alsowondered whythereform legislation relied withoutfurtherdebate ontheproposals of Legal scholars inSpainscrutinizedextensively theimpactofsomerecent rather radical savingsmeasures A O op. cit. op.

c omparé ld RGL RL - 109 , 2014,5,p.73. age , 2014,I,p.325;Bronzini G.,"Chefineha fatto il reddito minimogarantito?", in

du op. cit. op.

TL travail

, 2014,127,p.143. protec

de tive o

la tion

s é c urité

s o verview c iale 110 Thereform entailed muchcritical analysis inthe2014publications: 112 114

Manycritical comments stressed thenegative implications op. cit. op. 113 whowere notaware ofconstitutional RGL 108 op. cit. op. Finally, someauthors paid , 2014,I,p.335. 111 ; Suárez CorujoB., "Las of the public pension op. op. 2014 comparative labour law literatureespagne

of the reform on the adequacy and sufficiency of pension benefits, as the new factor would limit initial pension amounts and subsequent indexation of pensions, thus aggravating old-age poverty risks, in particular for low wage earners. Spanish scholars thus casted serious doubts on the conformity of the reform with constitutional principles about pension guarantees, and argued that these principles needed to be reconciled or coordinated with rather than subordinated to the newly introduced constitutional principle of budgetary stability.115

As a result of the cumulative effects of various consecutive modifications116, more pensioners may have to rely on a minimum pension, financed directly from the State budget. According to Spanish scholars, the new sustainability factor with its two different elements would be the pathway to replace social security pensions with social assistance pensions which are subject to different and very limited adjustment rules. The reform will also penalise disadvantaged groups on the labour market, in particular women. Moreover, several authors have stressed that the reform contains the implicit objective of favouring private pension schemes which will increase overall social inequalities rather than providing for a general solution to prevent poverty in old-age.117

Prior to Spain, Italy had adopted far-reaching demographic adjustments to the Italian public pension system in 2011 by linking every age-related parameter to changes in the life expectancy. The debate about the rationalities of this reform continued in 2014 publications, as several authors explored the links between constitutional guarantees for pensioners and financial constraints of resources in the light of the current political, economic and legislative situation, and the value and notions of solidarity in times of permanent austerity.118 A critical appraisal of the current old-age pension system focussed on its legal and social (un)sustainability in respect of the principles of solidarity119 and equity, from a general, class and inter/intragenerational perspective, and on the implications of increasing retirement age in the recent reform, which can be also viewed as a departure from a much more advanced retirement scheme with flexible retirement access adopted two decades ago.120

The need to adapt pension systems to an ageing society and to improve protection against old-age poverty is reflected also in 2014 journals with respect to Malaysia and several Latin American countries. The main public pension system in Malaysia which consists of a fully funded Provident Fund has been supplemented recently by a voluntary Private Retirement Scheme open to all residents aged 18 and above. Another reform initiative encouraged workers to

de sostenibilidad", op. cit.; Ruesga Benito S., "En recuerdo de los trabajos del comité de expertos para la elaboración del factor de sostenibilidad de las pensiones públicas. La visión de un experto perplejo", op. cit.; Monereo Pérez J. L., "Diálogo social y reforma de las pensiones: ¿ de las políticas de consenso sociopolítico al dirigismo político?, op. cit. 115 López Gandía J., "La dimensión constitucional de la reforma de las pensiones", op. cit.; Tortuero Plaza J. L., "Ley 23/2013, de 23 de diciembre, reguladora del Factor de Sostenibilidad y del Índice de Revalorización del Sistema de Pensiones de la Seguridad Social: régimen jurídico", op. cit.; González Ortega, S., "El nuevo régimen de revalorización de las pensiones", op. cit.; Toscani Giménez D., "La revalorización de las pensiones en la Ley 23/2013, de 23 de diciembre y su constitucionalidad", op. cit.; Alemán Páez F., "El régimen fractal de la jubilación. Marco institucional y consideraciones críticas de un reformismo inacabable", op. cit. On the criteria to prove the conformity of pension reforms with international standards developed by the European Committee of Social Rights under the European Social Charter and the criteria applied by the Committee of Economic, Social and Cultural Rights according to the Facultative Protocol to the International Covenant on Economic, Social and Cultural Rights see López Gandía J., op.cit., p. 36 ff. 116 With respect to the combined effects of reforms hampering economic sufficiency in old-age further saving measures affecting pensioners have to be considered, like e.g. co-payments for health services, cuts in social services at local level, etc. cf. López Gandía J., "La dimensión constitucional de la reforma de las pensiones", op. cit. 117 Rodríguez-Piñero y Bravo-Ferrer M., Casas Baamonde M. E., "El factor de sostenibilidad de las pensiones de jubilación y la garantía de la suficiencia económica de los ciudadanos durante la tercera edad", op. cit. 118 Casillo R., "Benessere pensionistico e scarsità delle risorse dopo la L. 214/2011", op. cit. 119 As a contribution-based social insurance scheme the Italian public pension system has no redistributive objectives and the resulting protection in old-age is operating as an insurance scheme, mitigated by internal solidarity within the collectivity of the affiliated. 120 Casillo R., "Profili di (in)sostenibilità giuridica e sociale dell’attuale tutela pensionistica di vecchiaia", op. cit.; Andreoni A., "Le pensioni nel passo del gambero", op. cit.

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189 Retrospective overview of 2014 COMPARATIVE labourw la literature 190 R evue A., "Laprotezione sociale dellavoratore tra sostegni alreddito epoliticheattive", in sickness and/orinvalidity. social protection for those in condition ofspecialvulnerability, e.g.incase ofimpaired working capacity dueto unemployed, while unemployment tends to beviewed asaproblem ofindividualresponsibility. Thismayreduce as inthecase ofSweden’s sickness insurance, suggest anincreasing riskfor vulnerable categories ofbecoming Navarro C.,"Laorientación eintermediación directa enelempleo", in Bazzani T., "Laprotection contre le chômageentemps decriseauDanemark,en Italie etenEspagne",in 3, p.489. human capital approach. Italy, theactivation elements inemployment policiesare centred around a“work first” approach, rather thanona services. Bycontrast, incountries withbudgetary difficulties and less efficientemployment services asinSpainor and education over work inreturn for benefits,asinDenmarkwhere jobseekers can rely onefficientemployment Unemployment periodsmaybeusedto enhance professional skillsandqualification bygivingpriority to training social contributiva. Aproximación alcaso argentino", which, however, seemsto bebasedonarather orthodox economic understanding oflabourmarket policies. ment benefitschemesandinto different prioritiesinemployment policies,despite ofa common European umbrella On the other hand, comparative analysis has provided some insightinto the differences of nationalunemploy- case ofunemployment, andontheunderstanding ofactivation asakey to increasing labourmarket participation. one handontheoverall influence ofEUeconomic policyandbudgetary objectives onnationalsocialprotection in activation concepts have beenafocus inseveral publications IALLJ throughout 2014.Analysis concentrated onthe protection contre le chômage entemps decriseauDanemark, enItalie etenEspagne", english version: "Unemployment benefitsduringthecrisis:Denmark,Italy andSpain",in 2, p. 15; for the good practice experience of regional public orientation and placement services in Andalusia essenziali concernenti iserviziper l’impiego elasfidadella“garanzia perigiovani”", in 2014, 7,p.30. benefits duringthecrisis:Denmark, Italy and Spain", 124 123 122 121 combatting old-agepoverty. space for redistributive elements, andthatpriorityisgiven to individualresponsibility over solidarityconcepts in of 55upto theageof75.According to theauthors, thesefeatures ofthepensionschemeconfirm thatthere islittle work beyond the age of 55 and, moreover, extended the liability to contribute to the Provident Fund beyond the age 125 Finanzierung", in markets characterized byhighlevels ofinformality. schemes (as in Mexico), but most often to theintrinsic shortcomings ofcontributory pension systems inlabour American still continues to suffer from various flaws,whichmaybelinked to thefragmentation ofmany special to return to orstrengthen publicpensionsystems, LatinAmerican scholars admitthatold-ageprotection inLatin America basedon individualsavingsaccounts. Althoughsomestates adopted comprehensive pensionre-reforms issue ofsocialprotection for theself-employed ( Journal vices andtherole ofprivate placement services inSpain internacionales enlareforma dela reglamentación delasagenciascolocación: desafíospendientes para España",in

Westregård A.,"Changes intheSwedish sickness insurance system andlabourlawdue to influence offlexicurity", in There are efforts inbothcountries to improve employment services, assomeauthors have stressed: GundtN.,"TheRightto Work, EUActivation Policies andNational Unemployment BenefitSchemes", in For Mexico fernadoRetrospec

Tolos H., Wang P., Zhang M., Shand R., "Retirement systems and pension reform: A Malaysian perspective", in droit Unemployment benefitschemesandtheir recent evolution inthelightofEuropean guidelinesonso-called B U Análisis Laboral Análisis

c omparé nemployment cf

du . MendizábalBermúdezG.,"Analyse der“Quasi-Renten” inMexiko -zwischenPrivatisierung undstaatlicher ZIAS

travail , 2014,1,p.208.;for Argentina: MinoldoS.T., Sazatornil M.J.,"Inequidadesdistributivas delaprevisión thatdealwithattempts to reform theprivate pensionsystems (

et 124

125 de tive o Changesinemployment securitylegislation aswell asinsocialprotection legislation,

121 la and

Thelackofsolidarityisawell-known feature inprivatised pensionsystems inLatin s é c urité

employment

s o verview c iale AL , July, August andDecember 2014). op. cit. op. op. cit. op. cf

promotion 122 . Ballester Pastor I.,"Ajustes estructurales yasuncióndecompromisos ; for theproblems inimplementing efficientpublicemployment ser - ; for Peru TL cf , 2014,125,p.89.

policies . Gamarra Vilchez andvarious issues ofthePeruvian DLM op. cit. op. DLRI AL RDCTSS , 2014,2,p.507;Varesi P. A.,"Ilivelli , MayandOctober 2014),andwith the , 2014,142,2,p.185;BazzaniT., "La -englishversion: "Unemployment , 2014-3,p.50. RDCTSS ELLJ cf . for Italy: Varesi P. cf , 2014,3-4,p.349; . Sánchez-Rodas , 2014-1,p.68- ILR , 2014, 153, RL , 2014, EuZA 123 ,

2014 comparative labour law literatureespagne

Despite many examples of retrenchment in the protection of the unemployed there are also cases of increasing protection or of adapting schemes to counterbalance current problems of the labour market in times of economic recession.126 An interesting case of extending protection is the creation of protection schemes for the self-employed that are forced to give up their business activities. Spain adopted such a scheme in 2010 on a semi-voluntary basis as protection was granted only when the self-employed had coverage for professional risks such as work accidents. A 2014 reform abolished this prerequisite for protection.127 Italian scholars assessed the introduction of new instruments to protect the unemployed and analysed improvements in the highly fragmented Italian unemployment protection schemes since 2012.128

C Vocational education and training for young people and senior workers

The high rates of youth unemployment are a constant challenge in many parts of Europe.129 Labour law scholars from Italy and Spain have explored extensively various measures and policies that either the EU130 and/or member states have adopted to provide more education, training and professional qualifications for young people. 2014 publications focused in particular on the Youth Guarantee Strategy which was agreed by the European Council in April 2013 and is currently in the process of implementation at member state level.131 Various scholars took critical account of the initiatives that support labour market integration of young people, including measures aimed at up-grading professional education systems. Authors were interested in particular in the use of special traineeship contracts, contracts with professional training objectives, and the initiatives to combat the abuse of such traineeships.132 Special attention has been paid to national labour law reforms that attempt to tackle youth employment

126 Cf. for Germany the use of unemployment benefits to balance short-time work at the outset of the economic crisis in 2008/2009: Brecht-Heitzmann H., Röns B., "Labour and social welfare measures to combat the crisis in Germany", in ELLJ, 2014, 5, 1, p. 63. 127 Cf. Taléns Visconti, E. E., "Reflexiones en torno a los requisitos de acceso a la prestación por cese de actividad de los trabajadores autónomos (tras la aprobación de la Ley 35/2014, de 26 de diciembre)", op. cit. The benefit is granted after a waiting period of 12 months after closing the business. The reasons justifying the protection include economic losses of a certain degree, losses due to force majeure, loss of the license required to run the business, and in case of female entrepreneurs also gender violence, divorce or judicial separation. 128 Cf. Garofalo D., "Il finanziamento delle misure di sostegno al reddito dopo la riforma Fornero", inRGL , 2014, I, p. 305; Varesi P. A., "La protezione sociale del lavoratore tra sostegni al reddito e politiche attive", op. cit. Scholars also turned to specific features and challenges of the revised Italian unemployment benefit schemes, for example the bilateral solidarity funds (Giubboni S., "I fondi bilaterali di solidarietà nel prisma della riforma degli ammortizzatori sociali", in DLRI, 2014, 144, p. 715) or the implications of the reform on the unemployment protection of prisoners (Caputo G., "La tutela contro la disoccupazione dei detenuti lavoratori alla luce della riforma degli ammortizzatori sociali", in LD, 2014, 4, 697). 129 According to the third European Quality of Life survey data (2011-2012), the risk of deprivation among young people from all social backgrounds has increased, cf. Eurofound, Developments in working life in Europe: EurWORK annual review 2014, 2015. 130 These policies include among others: the EU Youth Strategy (2010-2018) to provide more and equal opportunities to young people and to enhance active citizenship; the Youth Guarantee Strategy for people under 25 aimed at helping them access the labour market by promoting apprenticeships and traineeships and by offering non-formal learning environments; the youth employment package to help Member States tackle youth unemployment and social exclusion: cf. Eurofound, "Developments in working life in Europe", op. cit. 131 For the national implementation of the Youth Guarantee in Spain cf. Rodríguez-Piñero y Bravo-Ferrer M., Valdés Dal-Ré F., Casas Baamonde M. E., "El Real Decreto-Ley 8/2014: Garantía Juvenil y nuevo marco territorial de las políticas de empleo", in RL, 2014, 9, p. 1; Gómez Torres M. J., Ordóñez Sierra R., "Las transiciones de la formación al trabajo de los jóvenes españoles en el marco de las medidas contempladas en la estrategia de emprendimiento y empleo joven 2013/2016", in TL, 2014, 127, p. 179; Costa Reyes A., "El modelo español de formación dual", in RDS, 2014, 68, p. 13; in Italy: Varesi P. A., "La protezione sociale del lavoratore tra sostegni al reddito e politiche attive", op. cit.; Varesi P. A., "I livelli essenziali concernenti i servizi per l’impiego e la sfida della “garanzia per i giovani”",op. cit. 132 For Italy: Garofalo D., "Gli interventi legislativi sul contratto di apprendistato successivi al T.U. del 2011", in DLRI, 2014, 143, p. 427; Bianco A., "Apprendistato, formazione e politiche attive del lavoro. Osservazioni sulla legge n. 78 del 2014", in LD, 2014, 4, p.

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191 Retrospective overview of 2014 COMPARATIVE labourw la literature 192 R evue through areduction ofemployment rightsfor young people. 6, 380;DubarC.,Nasser C.,"Lesystème français deformation professionnelle continue a-t-ilétédurablement réformé?", in professional education inlater working life. articles publishedin2014alsopaidattention to policiesadopted for seniorworkers inview oflife-long learning and ment", in 2014, 6,p.383;onthedifficultgenesis ofthis reform project seeGéa F., Fabre A.,"La formation professionnelle penséeautre- U.K. occupational safety and healthlaws",in combat thecrisisinGermany", nomic crisis,intheframework ofshort-timework; seeBrecht-Heitzmann H.,RönsB.,"Labourandsocialwelfare measures to "Y 136 135 134 133 647; D’OnghiaM.,"L’ennesimo (inutile) intervento dellegislatore sulcontratto diapprendistato", in "Crisis andLabourMarket inSpain", p. 13. inception in1971. would notsolve themajorproblem ofaccess inequalitiesthathave characterized theFrench system ever since its cation andtraining hasbeenassessed critically. Scholars concluded thatdespite someimprovements thereform Moreno IGenéJ.,"Elcontrato atiempoparcial con vinculaciónformativa: unsucedáneo decontrato formativo", in lia. individuals involved. and safety legislation to thechangedcontext inseveral jurisdictions,mainly from theperspective oftheentitiesand and adapted to thenew organisational setting.Theessays inquestion have analysed theprocess adjusting health historically theonly individualscontemplated bythisbodyoflaw. Butnow thislegal framework must bereviewed was based on the bilateral and exclusive relationship between employers and traditional employees, and these were there, aswell asonthelegal relations created between them.Thetraditional framework ofhealthandsafety law organization ofenterprises donotimpactonly ontheproduction systems assuch,butalsoonthepersons whowork within theenterprise, andto thosewhoare to beprotected bythem.For therest, thechangesinstructural order to maintain theireffectiveness. part oftheproduction process -onlawsgoverning healthandsafety atwork thatmust adaptto thesechangesin originate essentially from economic globalization, the growth oftheservice sector andthepractice ofoutsourcing time the most problematic aspects of this field: the impact of organisational changes within enterprises - which question, most of which have appeared in non-European journals, have looked at the most novel and at the same theme ofhealthandsafety attheworkplace.

de oung Employees: Securities,RiskDistribution andFundamental SocialRights",in

Harpur P., James P., "The shift in regulatory focus from employment to work relationships: critiquing reforms to Australian and Professional re-qualification hasbeenanessential feature oftheGermanpolicyemployment protection duringtheeco- For thelife course riskslinked to promoting youth employment through reduced socialprotection seealsoVotinius, J.J., fernadoRetrospec

136 Cf droit V In view oftheEuropean strategy to increase labourmarket participationfor people aged50andover, several One ofthestudies provided acomparative analysis ofhealthandsafety legislation inGreat Britain andAustra- These considerations apply above allto thosewhoare responsible for ensuringenforcement oftheselaws Since thisisaclassic area oflabourlaw, theattention paidto itshouldcome asnosurprise.Theessays in After considering brieflytheinternational labour law standards inthisfield,theauthors examinedthe relevant . Issehnane S.,"Cequelaloi du5mars 2014surlaformation professionnelle neva paschanger:l’inégalité", in

c RDT omparé , 2014,2,112.

du H

135 travail ealth Many legal scholars whopublishedcontributions journals in2014analysed intheIALLJ the

de tive o op. cit. op.

la and

s é c op. cit. op. urité S afety

s o verview c CLLPJ iale 134

, 2014,36,1,p.111. at Inparticular, the 2014French reform onlife-long vocational edu-

work

133 ELLJ , 2014,5,3-4,p.367;Suárez CorujoB., RGL , 2014,I,p.745.For Spain: TL , 2014,127, RDT , 2014, RDT , 2014 comparative labour law literatureespagne

national legislation, explaining how each legal system adapted to the organizational changes under way, or even anticipated such adjustments. In fact, the British and Australian legislation started to depart from the traditional model under which the only individuals enjoying the protection of health and safety legislation were employed workers since the 1970s, when Fordism was still completely dominant. At the same time, both jurisdictions have extended protection to other individuals who, although not falling under a scheme of subordinate employment, still needed protection for their intensive interactions with the enterprises for whom they operate. In this way both legal systems have extended the guarantees provided under the health and safety legislation to numerous individuals other than standard employees, such as independent contractors, sub-contractors and workers under flexible schemes in general.

This implies a legislative trend that both legal systems seem to have in common, notwithstanding the distinctions to be made in relation to the content of the respective laws and to the institutional context in which they were produced (as Great Britain is significantly influence by EU law in this area). Nevertheless, the authors take the conclusion that the Australian system provides more protection than the British one, particularly in respect of future developments. As far as Great Britain is concerned, the authors refer to the debate taking place at government level, to exclude some independent contractors from the regime governing health and safety at work, thus taking a significant step backwards.137

Likewise another essay examines the evolution of health and safety legislation in Italy, once again with reference to the changes occurring in the organizational structures of enterprises and in production systems, including the application of protection measures in case of outsourcing by means of tendering contracts.138

With regard to this point, the author briefly highlights the way Italy has followed over time in order to amend the legislation governing tendering contracts and the placing of the workforce, as well as the laws concerning more specifically the health and safety of workers in the workplace. As to the first aspect concerning legislation on tendering contracts, the amendments took into account the demands for flexibility claimed by enterprises that are increasingly fragmented, and hence sought to not hamper outsourcing through tendering contracts (while nonetheless maintaining protection mechanisms for the workers). With respect to the second aspect of health and safety legislation, changes aimed at taking account of the need to protect other categories (and groups) of workers, beside the standard employees.

Although, as the essay affirms, the national legislation in Italy has moved along parallel but still separate lines for a very long time, the latest reform of Italian health and safety legislation under legislative decree no. 81 of 2008, now entails a convergent evolution, with the primary aim of granting protection to the greatest possible number of workers. This has come about in particular as a result of art. 26 of this decree, to which the author dedicates a detailed analysis. This provision has imposed a range of duties and responsibilities on the contracting employers in relation to the tendering companies, but it also establishes that these employers must facilitate coordination between the various enterprises involved (those inviting the tender, those tendering and subcontractors of the tendering company) and draft a single document dealing with risk assessment. In addition, the law provides for a joint liability of employers under the tendering contract, tendering enterprises and subcontractors for any damage incurred by workers which is not covered by the compulsory insurance for occupational accidents. According to the author, these recent legal developments are to be welcomed, since they offer the prospect of extending protection to interested parties who are outside the traditional (and formal) employer-employee relationship. However, this innovation raises some concerns, namely that the guarantees under art. 26 of legislative decree no. 81 of 2008 are limited to those working in the same physical environment, and therefore do not cover outsourcing which involves placing part of the

137 Harpur P., James P., "The shift in regulatory focus from employment to work relationships: critiquing reforms to Australian and U.K. occupational safety and health laws", op. cit. 138 Casale D., "Joint responsibility of entreprises for the health and safety of their contractors’ workers: recent trends in Italian law", in CLLPJ, 2014, 36, 1, p. 131.

English Electronic Edition - 2015/3

193 Retrospective overview of 2014 COMPARATIVE labourw la literature 194 R evue prohibiting to delegate thegeneral healthandsafety obligationplaced upontheemployer to others. Thisisaprin that riskunravelling some of thefundamental principles underpinning this legislation, especially theprinciple the indemnityprocedures whichwere followed to compensate for theloss incurred. questions abouthealthandsafety practices adopted bytheemployer enterprises, thecauses oftheaccident and undertook anempirical study onworking conditions, interviewing injured workers from different provinces, asking authors, taking thehigh number ofaccidents atwork over thelast ten years inthatcountry astheirstarting point, context oflegislation onhealthandsafety intheworkplace intheAustralian legal system, health andsafety issues. Afirst example refers to theabolitionof the right to refrain from self-incriminationinthe those concerning theimpactoforganisational changesonthisdiscipline,butalsothosedealingwithmore specific legislation intheAustralian legal system. individuals who,undervarious guises,offer theirservices to anenterprise, againinrelation to healthandsafety case, with thecurrent state oftheartwhenuseasbestos isatstake, withreference to theso-called Turin “Eternit” National ModelWork HealthandSafety Bill",in law", ting thehealthandsafety obligation Contrary to theopinionexpressed inthecase lawthisobligationisnotreconcilable withthepossibility of delega person conducting abusiness orundertaking») have adutyto consult, cooperate andcoordinate withoneanother. involved intheproduction process (orrather, to usethequite broad concept adopted byAustralian lawmakers, «a principles, whichcan significantly weaken the case lawtrend. Theseprinciples establish thatallentrepreneurs delegability of safety obligations; then he asserts that the relevant Australian legislation contains some general on theexperience ofthetendering contractor asto transform itinto aninstrument suitable for consenting to the safety obligationsto others orifinsomewaythey can be‘neutralised’ sothattheirimpactremains limited. they presage aprogressive, unstoppable unhingingoftheprinciple of non-delegation ofanemployer’s healthand to amore expert onethantheemployer is.Following adetailed analysis ofthesecases, theauthoraskswhether may not be applied where the employer had decided to tender out a service to an expert entrepreneur or rather, ciple frequently referred to byAustralian courts themselves, butwhich,according to thejudgmentsunderreview, 145 144 143 142 141 AJLL 140 139 work oftheenterprise inlocations distinct from thosewhichtheemployer owns orhasaccess to. expert ones. employer to completely delegate safety obligationsto thetendering contractor orsub-contractor, noteven to designed to share thefulfilmentofsafety obligationsinabetter way,however, withoutallowing the contracting produced considerable difficultiesofinterpretation. Johnstone therefore proposed to develop codes of conduct

ZhuY Monereo Pérez J.L., "Lasaludcomo derecho humano fundamental", in D’Ambrosio L.,"Amiante etdroit pénal: quelquesréflexions sur l’affaire “Eternit” de Turin", in GoldS.,"Bulwark oflibertyorimpunityfor thewicked? Theabrogation ofthe privilege against self-incriminationinthe Johnstone R.,"Engagingexpert contractors: Thework healthandsafety obligationsofthebusiness orundertaking", Johnstone R., "Engaging expert contractors: The work health and safety obligations of the business or undertaking", in Casale D.,"Jointresponsibility ofentreprises for thehealthandsafety oftheircontractors’ workers: recent trends inItalian fernadoRetrospec

droit Finally, we draw attention to acontribution dedicated to healthandsafety intheworkplace inChina.Its Among thearticles publishedin2014byIALLjournalsonhealthandsafety atwork, we have to recall notonly A third contribution hasexamined theissue oforganisational changesandtheneedto protect awiderange of In addressing theseissues, theauthorfirst criticisestheAustralian courts for havingplaced suchimportance , 2014,27,1,p.57. op.cit. 143 andathird onecontemplates therightto healthfrom ahumanrightsperspective.

c ., ChenP. Y omparé 141

travail ., ZhaoW., "Injured workers inChina: Injustice, conflict andsocialunrest", in

de tive o

s é c urité in toto in

s o verview c iale 140 . Thus,despite thereinforcement oftheseprinciples, thecase lawhas AJLL Theessay takes acritical view offour judgmentspronounced in2012 , 2014,27,1,p.1. RL , 2014,9,p.53. 145

ILR RDT 144 , 2014,153,4,p. 635. 142 , 2014,6,p.418. asecond onedeals 139 op. cit. op. - - 2014 comparative labour law literatureespagne

List of abbreviations of IALL Journals

Análisis Laboral = AL Arbeit und Recht = AuR Australian Journal of Labour Law = AJLL Bulletin of Comparative Labour Relations = BCLR Canadian Labour & Employment Law Journal = CLELJ Comparative Labor Law & Policy Journal = CLLPJ Diritti Lavori Mercati = DLM Europäische Zeitschrift für Arbeitsrecht = EuZA European Labour Law Journal = ELLJ Giornale di Diritto del Lavoro e delle Relazioni Industriali = DLRI Industrial Law Journal (UK) = ILJ International Journal of Comparative Labour Law & Industrial Relations = IJCLLIR International Labour Review = ILR Japan Law Review = JLR Lavoro e Diritto = LD Pécsi Munkajogi Közlemények (Pecs Labour Law Journal) = PMJK Relaciones Laborales = RL Revista de Derecho Social = RDS Revue de Droit Comparé du Travail et de la Sécurité Sociale = RDCTSS Revue de Droit du Travail = RDT Rivista Giuridica del Lavoro e della Previdenza Sociale = RGL Temas Laborales = TL Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht = ZIAS

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Date : ...... Signature : Edited by COMPTRASEC - UMR 5114 Université de Bordeaux 16, Avenue Léon Duguit CS 50057 - F 33 608 Pessac - FRANCE Legal Deposit : March 2016 ISSN 2262-9815 revue The Revue de droit comparé du travail et de la sécurité revue sociale - English Electronic Edition is published English electronic edition COMPTRASEC, UMR 5114 CNRS (Université de Bordeaux). English electronic edition This annual publication pursues the objective of making de Droit Comparé available the legal doctrine non-anglophone for anglophone de Droit Comparé readers in order to contribute actively to the development du Travail du Travail of analyzes and exchanges of ideas on labour and social et de la Sécurité Sociale security law around the world. The review is a member of et de la Sécurité Sociale 20 15/3 the "International Association of Labor Law Journals". 20 15/3

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Yaelsy Lafita Cobas S Self-employment in Cuba. Remarks on its regulation in the Cuban Labour Code la

Ljubinka KovaČević r avail

T revue Development of employment relationship concept in the law of Serbia: From authentic self-management concept to late (re)affirmation of the contractual concept du

Frédéric Paré and Gilles Trudeau Why Right-to-Work Laws in the United States? dition English electronic edition E Equality, Inequalities, Discriminations: r é ompa C oni c

Interdisciplinary dialogue attempt of legal and quantitative knowledge oit dition r de Droit Comparé le c t r

Jérôme Porta and Christophe Bergouignan D E

Foreword de

Debbie Collier From apartheid to affirmative action: an overview of equality law in the South African workplace du ravail

evue T ngli s h E R

Supriya Routh E The Constitution’s Step Children: Workers and Equality before Law

Dominique Meurs 20 15/3 et de la Sécurité Sociale Measuring discriminations: economists’ approaches

Matteo Borzaga and Eva Maria Hohnerlein E Interdisciplinary dialogue attempt of legal and quantitative knowledge

Comparative labour case law 70 euros ISSN 2262-9815 International Legal News nglish comptrasec

E Retrospective overview of 2014 comparative labour law literature

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