Showing papers on "Labour law published in 2005"

The Law of the Labour Market: Industrialization, Employment, and Legal Evolution

Abstract: The emergence of a 'labour market' in industrial societies implies not just greater competition and increased mobility of economic resources, but also the specific form of the work relationship which is described by the idea of wage labour and its legal expression, the contract of employment. This book examines the evolution of the contract of employment in Britain through a close investigation of changes in its juridical form during and since the industrial revolution. The initial conditions of industrialization and the subsequent growth of a particular type of welfare state are shown to have decisively shaped the evolutionary path of British labour and social security law. In particular, the authors argue that nature of the legal transition which accompanied industrialization in Britain cannot be adequately captured by the conventional idea of a movement from status to contract. What emerged from the industrial revolution was not a general model of the contract of employment, but rather a hierarchical conception of service, which originated in the Master and Servant Acts and was slowly assimilated into the common law. It was only as a result of the growing influence of collective bargaining and social legislation, and with the spread of large-scale enterprises and of bureaucratic forms of organization, that the modern term 'employee' began to be applied to all wage and salary earners. The concept of the contract of employment which is familiar to modern labour lawyers is thus a much more recent phenomenon than has been widely supposed. This has important implications for conceptualizations of the modern labour market, and for the way in which current proposals to move 'beyond' the employment model, in the face of intensifying technological and institutional change, should be addressed.

The Economics of Child Labour

Abstract: Children throughout the world are engaged in a great number of activities classifiable as work. These range from relatively harmless, even laudable, activities like helping parents in their domestic chores, to morally and physically dangerous ones like soldiering and prostitution. If we leave out the former, we are left with what are generally called "economic" activities. Only a small minority, less than 4 percent of all working children, are estimated to be engaged in what ILO defines as the "unconditional" worst forms of child labour. The absolute number of children estimated to be engaged in the latter is, however, a stunning 8.4 million. Should we only be concerned about the worst forms of child labour? Most forms of child labour other than the worst ones have valuable learning-by-doing elements. Furthermore, child labour produces current income. If the family is credit rationed, child labour relaxes the liquidity constraint and increases current consumption. There is thus a trade-off between present and future consumption. To the extent that current consumption has a positive effect on future health (hence, on the child's future earning capacity and, more generally, utility), this trade-off may be lower than one might think. This book provides a blend of theory, empirical analysis and policy discussion. The first three chapters develop a fairly comprehensive theory of child labour, and related variables such as fertility, and infant mortality. Chapter 4, concerned with the effects of trade, contains both theory and cross-country empirical evidence. The remaining chapters are country studies, aimed at illustrating and testing different aspects of the theory in different geographical contexts. These chapters apply the latest developments in microeconometric methodology for dealing with endogeneity, unobserved heterogeneity, and the evaluation of public intervention.

Labour Regulation, Corporate Governance and Legal Origin: A Case of Institutional Complementarity?

Abstract: We explore the finding of La Porta et al. that differences in "legal origin" account for part of cross-national diversity in labour regulation and corporate governance. We suggest that the finding needs a better historical grounding and that a mechanism which might explain it has not been adequately spelled out. In search of an explanation we focus on the role of complementarities between legal and economic institutions, and in particular the part played by the distinctive "legal cultures" of the common law and civil law in setting national systems on separate pathways to economic development.

Labour Laws and Global Trade

Abstract: 1. Does Transnational Labour Regulation Matter? 2. The Effectiveness of International Labour Standards. 3. Privatising Regulation: Codes,Agreements and Guidelines. 4. Unilateral Social Clauses. 5. Social Clauses in Bilateral and Regional Agreements. 6. The WTO and Social Clauses. 7. Labour Laws Beyond Borders. 8.Negative and Positive Harmonisation in the EU. 9. New Methods of Integration in the EU. 10. The Comparative Advantages of Labour Laws.

Contractualism in employment services : a new form of welfare state governance

Abstract: 'For the modern welfare state support' for those who are out of work through no fault of their own remains a foundation stone Now, however, under pressure form market-driven ideology focused on business performance, its composition and the way support is delivered is in a state of flux With the avowed objective of minimizing dependence on social benefits and increasing labour market efficiency, many national policies with varying degrees of thoroughness are shifting from a bureaucratic approach to some form of contract arrangement that demands a higher level of personal responsibility from the unemployed worker The contractualisation process is usually administered through a 'reintegration service' that may be partly or wholly privatised This remarkable book is the first comparative in-depth study of the process of contractualisation It offers seventeen penetrating analyses, by leading labour market and labour law authorities, of recent policy initiatives to activate employment by contract and the implications of these initiatives from both legal and a socioeconomic perspective Among the issue explored are the following: motivation, mobility, and flexibility in the labour market; effect of contractualisation on public accountability and responsibility; effect on the individual's statutory relationship under social security; whether and to what extent the conditions on which one country successfully introduces contractualisation apply to other countries; and, the unemployed individual as 'contract partner': What conditions can he or she set? The analyses focus on experience with contracts as service deliverance in the labour markets of eight countries: Australia, the United Kingdom, The Netherlands, Belgium, France, Germany, and Finland Because a certain measure of experience has already been built up by governments, providers, and clients, now is the time to try and learn form good as well as bad practices in order to build coherent institutional frameworks to help the unemployed This book is sure to bring insight and effectiveness to the work of professionals, officials, and politicians in this policy field, and will be of special practical value to labour law practitioners, academic researchers and libraries, trade unions, policymakers, and corporate counsel

Core Labour Rights – The True Story (Reply to Alston)

Abstract: The concept of 'core labour rights' has, over the last decade or so, assumed a central role in debates about the role of international labour law in an integrated world economy. Some, including Philip Alston, see this development as a retreat from and a threat to the existing international labour law regime, especially the International Labour Organization's international labour code. On this view the new concentration upon core rights undermines the existing regime from within by narrowing its focus, weakening the legal status of the core rights, relegating the 'non-core' to a second-class status, watering down its 'enforcement' mechanisms, and so on. This view, while popular, is available only on a very narrow and conventional understanding of the purpose of international labour law. A better understanding is available which enables us to see core labour rights as conceptually coherent (and not politically arbitrary), morally salient (and not merely part of an empty neo-liberal conspiracy) and pragmatically vital to the achievement of our true goals, including the 'enforceability' of the 'non-core' (and not an undermining of the whole regime from within). This essay defends this second and positive account of core rights by reacting to Philip Alston's recent essay in this journal, which is taken as the most comprehensive and aggressive articulation of the 'anti-core rights' point of view.

Labour Rights as Human Rights

Abstract: Notes on Contributors 1. Labour Rights as Human Rights: The Not so Happy State of the Art 2. Social Rights in a Globalized Economy 3. The Right to Bargain Collectively in International Law: Workers' Right, Human Right, International Right? 4. Is the ILO Effective in Upholding Workers' Rights?: Reflections on the Myanmar Experience 5. The Labor Dimension of the Emerging Free Trade Area of the Americas 6. Should the EU Have the Power to Set Minimum Standards for Collective Labour Rights in the Member States? 7. The European Union and International Labour Standards: The Dynamics of Dialogue Between the EU and the ILO Index

Statutory Occupational Health and Safety Workplace Arrangements for the Modern Labour Market

Abstract: Over the past 20 years there has been a significant refashioning of the labour market within Australia and other industrialised countries. This paper examines the implications of the growth of more flexible work arrangements for mechanisms designed to facilitate worker involvement in occupational health and safety at the workplace—a pivotal feature of post-Robens OHS legislation in Australia. It is argued that the growth of subcontracting, casual and home-based work has undermined both coverage and the effectiveness of these provisions, especially in a context where union membership and influence has also been declining. Looking at international experience, the paper examines a number of ways of remedying these deficiencies.

What is corporate social responsibility? : The case of Canada

Abstract: The question of responsibility is not new to labour law. The earliest developments in labour law and social law sprang from a “legal revolution” to borrow the words of Georges Scelle, considering the concept of responsibility that prevailed in common law. Civil responsibility which was originally based on fault could now be based on the risk inherent to a socially useful activity so as to ensure that the responsibility for damages that might result from it be equitably shared. This development took place under the generalization of the industrial production mode, first within the frame work of laws respecting compensation for industrial accidents.

Unionism and employment conflict resolution: Rethinking collective voice and its consequences

Abstract: IX. Conclusions and Overall Assessment The central proposition advanced by FM today, less than one in eight private sector workers belongs to a union. But while F&M and, later, Freeman and Rogers (1999), attributed the decline in unionization to employer/management opposition and weak labor law, some of this decline can be attributed to worker resistance. Such resistance may stem, in turn and following F&M, from recognition of the net negative consequences of unionism's monopoly face, but also, and contrary to F&M, from recognition of the net negative consequences of unionism's collective voice/response face. If workers judged unions' voice response face, in particular, grievance procedures, to be effective in redressing worker grievances, more union workers would likely remain union members and more unorganized workers would join unions — even in the “face” of employer opposition. While there is little question that there are widely varying types of real-world employment relationships or that unions are best suited to protecting worker interests in certain of these (usually highly adversarial) relationships, the fact that workers as a whole decreasingly choose to become union members suggests that they do not perceive union voice to be effective in redressing deteriorated employment relationships or to be more effective in this respect than nonunion voice options. Such reasoning is consistent with the picture sketched in this paper — a different picture from that forwarded by F&M — of unionism and grievance procedures as largely reactive, adversarial-oriented mechanisms for dealing with workplace conflict resolution, especially in a pluralist, mixed-motive type of employment relationship.

Gewerkschaften und Arbeitgeberverbände: Organisationsgrade, Tarifbindung und Einflüsse auf Löhne und Beschäftigung (Trade unions and employers' associations * densities, bargaining coverage and effects on wages and employment)

Abstract: "In Germany, trade unions and employers' associations play a role not only in wage determination but also in issues of social policy and labour law. While the majority of firms are organized in employers' associations, less than one quarter of employees are members of a trade union. Both social partners have severe problems in recruiting and keeping members. Union and employers' association densities as well as bargaining coverage are declining. Despite this erosion, collective agreements are still relevant for five out of six employees because they constitute an anchor of wage setting even for firms that are not formally bound by collective agreements. Empirical studies show that the social partners and collective bargaining exert a significant effect on wages. There are signs, however, that the power and influence of the social partners is increasingly endangered." (Author's abstract, IAB-Doku) ((en))

Severance Pay and the Shadow of the Law: Evidence for West Germany

Abstract: Due to the complexity of employment protection legislation (EPL) in Germany, there is notable uncertainty about the outcomes of dismissal conflicts. In this study we focus on severance pay and inquire whether its incidence and level varies in a systematic manner with the legal rules as defined by labour as well as tax law. We start with a theoretical model that generates the main observable outcomes of dismissal conflicts as potential equilibrium situations. Using German panel data (GSOEP), we put our theoretical model to an empirical test. Our main result is that the shadow of the law matters. Criteria regarding the validity of dismissals either found in respective legislation or defined by labour courts significantly affect the incidence and magnitude of severance pay. Moreover, restrictive changes in the taxation of severance pay have a negative causal impact on its incidence.

Long-term Employment and the Restructuring of the Labour Market in Europe

Abstract: There is a widespread view that the permanent employment, associated with traditional employment patterns, has been fundamentally undermined with the advent of the ‘new economy’. Industrial restruc...

The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace

Abstract: Charles J. Morris, a renowned labor law scholar and preeminent authority on the National Labor Relations Act, uncovers a long-forgotten feature of that act that offers an exciting new approach to the revitalization of the American labor movement and the institution of collective bargaining. He convincingly demonstrates that in private-sector nonunion workplaces, the Act guarantees that employees have a viable right to engage in collective bargaining through a minority union on a members-only basis. As a result of this startling breakthrough, American labor relations may never again be the same.

How American Workers Lost the Right to Strike, and Other Tales

Abstract: As a veteran labor scholar once said, if you want to know where the corpses are buried in labor law, look for the of course statements in court opinions. This essay traces the historical origins of five such of course statements, each of which has had a devastating impact on the American labor movement. The five statements are: (1) Workers have no right of self-defense against employers that commit unfair labor practices (NLRB v. Fansteel Metallurgical Corporation); (2) Employers enjoy the right permanently to replace economic strikers (NLRB v. Mackay Radio & Telegraph Company); (3) The National Labor Relations Board has no power to deter unfair labor practices (Consolidated Edison Company v. NLRB); (4) Employers may exclude union organizers from their property (Lechmere, Inc. v. NLRB); (5) Employers may close operations out of spite against workers who choose to unionize (Textile Workers Union v. Darlington Manufacturing Company). The essay argues that in each of the five cases, the Court revived Lochner-era constitutional doctrines - supposedly defunct since the switch in time that saved nine in 1937 - and applied them to cut back on statutory labor rights. Although the five statements were not considered especially dangerous at the time, their impact has since been magnified by social and economic change. Taken together, they may account for a substantial proportion of the decline in the American labor movement. As in the pre-New Deal period, then, judges have deprived workers of the rights to organize and strike based on constitutional concerns. This time, however, they have avoided the forthright constitutional reasoning of the pre-1937 period, thereby insulating their rulings against changes in constitutional jurisprudence.

Corporate Social Responsibility in China: Current Issues and Their Relevance for Implementation of Law

Abstract: Following an introduction to the issue of Corporate Social Responsibility (CSR) and recent developments that indicate a growing interest with CSR in China, this paper discusses some of the issues concerning law in China, in particular effectiveness of labour law and its implementation at local level. The indications are that CSR may have relevance as a modality for strengthening the implementation of law in China. Examples are given of how some CSR-conscious foreign companies that work in or supply from China handle social and environmental responsibility, and tentative perspectives of CSR in China are suggested, with regard to a possible impact on the implementation of law.

Formal and Informal Labour Markets: Challenges and Policy in the Central and Eastern European New EU Members and Candidate Countries

Abstract: The paper aims at comparing the formal and informal labour markets in the Central and Eastern European new EU Member States and candidate countries of the European Union. First, the current situation of the labour market is described, focusing on the recent developments since the breaking up of the East. Then the policy design of these labour markets is depicted and its effects on formal and informal labour markets. The most important challenges for employment policy as well as the effects of enlargement on the labour markets are analysed. The paper ends with a short summary. (JEL J21, J23, H26, H11, O17, O57)

Corporate governance reforms, labor law developments, and the future of Japan's practice-dependent stakeholder model

Abstract: Law and reality often disagree. The Japanese corporate law presupposes that a corporation is a shareholders’ property and the role of management is to maximize the interest of shareholders. Unlike German codetermination law which opens the supervisory board to employee representatives, Japanese law does not give employees or their representatives any status as a constituent of the corporation. Unlike many advanced countries, until the 2003 revision of the Labor Standards Law, Japanese labor legislation did not require any just cause for dismissals and maintained the employment at will doctrine prescribed in the Civil Code. Thus ostensibly Japanese law resembles more the Anglo-Saxon marketoriented model. In practice, however, it has long been held that employees are the corporation's most important stakeholders. The following comments made by the two leading corporate law professors at the University of Tokyo in the early 1990s illustrated the common perception of Japanese corporate governance at that time: “There has been a consensus among most corporate law professors that, irrespective of the principles and theories stated in the corporate laws, in practice, larger companies are administered by prioritizing interests of employees including both blue and white collar workers.” “The [German co-determination] system [which attracted attention both in the US and Japan in the 1970s] was not accepted and supported in the United States and Japan. The reasons were, however, quite different.

Unions in America

Abstract: Introduction Chapter 1 - The Evolution of Labor Unions The Early Years The Knights of Labor The American Federation of Labor Confrontations with Employers The Industrial Workers of the World and Revolutionary Unionism Union Decline and Resurgence During the Years Between the Wars Union Solidarity and Power The Erosion of the Labor Accord The Rise of Public Sector Unionism The Search for Union Revival Chapter 2 - Union Structure and Growth National and Unions Union Locals and Intermediate Bodies The Labor Federation Union Jurisdiction Union Mergers Union Membership and Decline The Causes of Union Growth and Decline How Unions Organize Chapter 3 - Union Government and Administration The Union Constitution Union Conventions Union officers and Governing Bodies Local Union Government Union Democracy Corruption in Unions Unions and Information Technology Union Effectiveness Chapter 4 - The Union as Bargaining Agent The Fundamentals of Bargaining Collective Bargaining Structure Collective Bargaining Agreements The Return of Concessionary Bargaining The Decline of the Strike Chapter 5 - Unions in Politics Union Political Action Union Political Campaigns Living Wages Labor Law Reform Two Campaigns in California Shopping Wal-Mart Chapter 6 - Union Revival Organizing Collective Bargaining Political Action Changing the Unions' Mission and Sturcture Chapter 7 -- The Unions of the Future Retreat Rebound Appendix: Selective Bibliography and Industrial Relations Websites

Labour Inside the Gate: A History of the British Labour Party between the Wars

Abstract: The period between the wars was a watershed for the Labour Party as it transformed from a failed alternative to the Conservatives to a majority party of government. After a slow build-up, it went on to win a landslide victory that brought in the Attlee government of 1945. "Labour Inside the Gate" is the first study dedicated to this period in Labour's development. In this comprehensive history, Worley examines the parliamentary Labour Party and the growing network of constituency parties. He explores Labour's shifting identity at a national and local level and the evolution of a party policy that would drive the historic Attlee government into office.

Labour Market Institutions and Labour Market Performance in Transition Countries

Abstract: This article examines five types of labour market institutions: statutory minimum wages, working-time regulations, hiring and firing regulations, trade unions and industrial relations. It uses the results of surveys that were carried our between 1996 and 2001 among senior business executives from 12 transition countries. In these surveys the managers characterised the institutions of their respective countries. The article conducts multivariate regressions incorporating the survey results and finds that high statutory minimum wages, strict working-time regulations, tight hiring and firing regulations, powerful unions as well as confrontational industrial relations lead to higher unemployment and lower employment, mainly among the problem groups of the labour market: the low-skilled, the long-term unemployed, young people and women.

Welfare State Regimes and the Social Organization of Labour: Childcare Arrangements and the Work/Family Balance Dilemma:

Abstract: Access to paid employment has increasingly become a central aspect of social integration and a main route to accessing welfare and social rights in the post-industrial world. Recently, the 'full employment strategy' has been placed at the forefront of social and employment policies in Europe at both country and EU level. The participation of women in paid employment is a crucial part of the strategy (female employment being the major source of employment growth in Europe over the last few years). This social and economic concern for increasing labour force participation has also been articulated politically in terms of discussions about gender equality and women's right to engage in paid labour. Issues of work and family balance have been a salient policy discourse regarding female employment and gender equality, including different forms of employment flexibility, the balance between paid employment and unpaid domestic work and the social organization of care.

Regulating the Employment Sharks: Reconceptualizing the Legal Status of the Commercial Temp Agency

Abstract: This article presents a historical and legal argument for reclassifying and regulating commercial staffing agencies as labor market intermediaries. Their current legal classification as employers is a major factor contributing to the exploitation of temps. The article contrasts the deregulated environment for commercial staffing agencies with the extensive federal regulation of union hiring halls. Because these two institutions serve a similar function—providing access to the job market for short-term employees—both should be subject to comparable regulatory regimes in order to restore parity in the legal treatment of temporary employees by all parties to the employment relationship. A regulatory regime should impose on temporary help and staffing agencies a level of transparency and fiduciary obligations analogous to the duty of fair representation imposed on union hiring halls by federal labor law. Absent such legal reclassification, the staffing industry will remain unfairly privileged in the marketplace in a way that prevents fair treatment and representation for temps.

Handbook of Employment Discrimination Research

Abstract: Overview: Socio-Legal Approaches to Anti-Discrimination Law -- Scaling the Pyramid: A Sociolegal Model of Employment Discrimination Litigation -- Law’s Role in Addressing Complex Discrimination -- What We Know about the Problem of the Century: Lessons from Social Science to the Law, and Back -- Debating the Prevalence and Character of Discrimination -- Including Mechanisms in our Models of Ascriptive Inequality -- Understanding the Sources of Ethnic and Racial Wage Gaps and Their Implications for Policy -- Discrimination in Consummated Car Purchases -- Racial Equality Without Equal Employment Opportunity? Lessons from a Labor Market for Professional Athletes -- Employment Discrimination Based on Sexual Orientation: Dimensions of Difference -- Occupational Mobility Among African-Americans: Assimilation or Resegregation -- Changing Boundaries: Historical and Social Development of Anti-Discrimination Law -- Discrimination and Diplomacy: Recovering the Fuller National Stake in 1960s Civil Rights Reform -- Sowing the Dragon’s Teeth: Materialization in Lesbian and Gay Anti-discrimination Rights -- Rights or Quotas? The ADA as a Model for Disability Rights -- Mobilizing Law: Rights Consciousness, Claiming Behaviour, and the Dynamics of Litigation -- The Evolution of Employment Discrimination Law in the 1990s: A Preliminary Empirical Investigation -- Perceiving and Claiming Discrimination -- Mobilizing Employment Rights in the Workplace -- The Intersectionality of Lived Experience and Anti-discrimination Empirical Research -- Law at Work: The Endogenous Construction of Civil Rights -- Discrimination against Caregivers? Gendered Family Responsibilities, Employer Practices, and Work Rewards -- Social Psychology of Bias -- Aversive Racism: Bias without Intention -- Applying Social Research on Stereotyping and Cognitive Bias to Employment Discrimination Litigation: The Case of Allegations of Systematic Gender Bias at Wal-Mart Stores.

Labour law and new forms of corporate organization

Abstract: n today’s global economy, the drive for corporate competitiveness I and flexibility has led to sweeping changes in the ways enterprises are organized, economically, financially and in terms of their workforce (Boyer and Durand, 1998; Castels, 1998). Developments such as the emergence of global financial networks, outsourcing, relocation and the establishment of networks of enterprises have had far-reaching consequences for labour relations and labour law enforcement. This article examines a few of the issues raised by these transformations together with the ways in which they could be managed – tentatively at this stage – in law, particularly with reference to the experience of France and Europe. 1 Born of the second industrial revolution, contemporary labour law is, historically, the outcome of a gradual process of construction, concomitant with that of productive organization itself, within national boundaries. Such law, be it statutory or contractual, was strongly influenced by the integrated large-scale enterprise model. It conceptualizes wage employment relationships in terms of binary relations between employers and workers. It is therefore hardly surprising that the reorganization of firms, under the combined effects of financial concentration and productive decentralization, should give rise to a new set of needs for protection. The necessary evolution of labour law has already been the subject of important contributions (Supiot, 1999; Simitis, 1997; Verge and Vallee, 1997). Since the early 1980s, a process of important legal reform has

The comparative evolution of the employment relationship

Abstract: It is widely believed that the legal institution of the contract of employment is currently undergoing a conceptual crisis as a result of changes in labour markets, the organisation of production, and the form of the enterprise. A historical and comparative perspective, however, indicates that conceptual crises of this kind are nothing new, and have occurred periodically in the systems of western Europe since the industrial revolution. The employment form serves important functions in a market economy even in an era of deregulation and liberalization, and is unlikely to be replaced by a radically new model in the near future.

'Economically dependent workers', employment law and industrial relations

Abstract: The boundaries between dependent employment and self-employment have increasingly become blurred in some areas in recent years, in a context of changing labour markets and the spread of practices such as outsourcing and contracting-out. This process has led to growing interest in - workers who are formally self-employed but depend on a single employer for their income - and calls from trade unions and other sources for such work to be regulated and social security coverage and employment law protection to be provided. This EIRO comparative study examines the extent and characteristics of employment relationships which may involve such across the EU and Norway, and provides an overview of the debate on the implications of these developments. The study also looks at the impact of economically dependent workers on industrial relations, and notably on trade union representation and collective bargaining.