European labour law

European labour law regulates basic transnational standards of employment and partnership at work in the European Union and countries adhering to the European Convention on Human Rights. In setting regulatory floors to competition for job-creating investment within the Union, and in promoting a degree of employee consultation in the workplace, European labour law is viewed as a pillar of the "European social model". Despite wide variation in employment protection and related welfare provision between member states,[1] a contrast is typically drawn with conditions in the United States.[2][3][4]

The European Union, under the Treaty on the Functioning of the European Union, article 153(1) is able to use the ordinary legislation procedure on a list of labour law fields. This notably excludes wage regulation and collective bargaining.[5] Four main fields of EU regulation of labour rights include (1) individual labour rights, (2) anti-discrimination regulations, (3) rights to information, consultation, and participation at work, and (4) rights to job security. In virtually all cases, the EU follows the principle that member states can always create rights more beneficial to workers.

The fundamental principle of labour law is that employees' unequal bargaining power justifies substitution of rules in property and contract with positive social rights so that people may earn a living to fully participate in a democratic society.[6] The EU's competences generally follow principles codified in the Community Charter of the Fundamental Social Rights of Workers 1989,[7] introduced in the "social chapter" of the Treaty of Maastricht.[8]

History

While free movement of workers was central to the first European Economic Community agreement, the development of European labour law has been a gradual process. Originally, the Ohlin Report of 1956 recommended that labour standards did not need to be harmonised, although a general principle of anti-discrimination between men and women was included in the early Treaties. Increasingly, the absence of labour rights was seen as inadequate given the capacity for a "race to the bottom" in international trade if corporations can shift jobs and production to countries with low wages.

The Treaty on the Functioning of the European Union (deriving from the Treaty of Lisbon) lists in article 2(1) the European Union's competence in the field of labour law. What is conspicuously not included is unjust dismissal of workers, and according to article 153(5) "pay, the right of association, the right to strike or the right to impose lock-outs". As it says, "the Union shall support and complement the activities of the Member States in the following fields:"

:(a) improvement in particular of the working environment to protect workers' health and safety;

(b) working conditions;
(c) social security and social protection of workers;
(d) protection of workers where their employment contract is terminated;
(e) the information and consultation of workers;
(f) representation and collective defence of the interests of workers and employers, including co-determination, subject to paragraph 5;
(g) conditions of employment for third-country nationals legally residing in Union territory;
(h) the integration of persons excluded from the labour market, without prejudice to Article 166;
(i) equality between men and women with regard to labour market opportunities and treatment at work;
(j) the combating of social exclusion;
(k) the modernisation of social protection systems without prejudice to point (c).

The objectives draw, according to TFEU article 151, inspiration from a number of other treaties and sources, which in turn draw inspiration from the International Labour Organization and the Versailles Treaty.

Labour and human rights
See also: ILO Conventions, UK labour law, German labour law, French labour law, and United States labor law

A first group of Directives create a range of individual rights in EU employment relationships. The objective of transnational regulation is to progressively raise the minimum floor in line with economic development.

Employment contracts

The Employment Information Directive 2019 requires that every employee (however defined by member state law) has the right to a written statement of their employment contract.[9]

The consistent jurisprudence of the European Court of Justice is that an employee is generally to be defined according to the fact that he or she is invariably the weaker party in an employment contract, and works under the direction of another.

  • Lawrie-Blum v Land Baden-Württemberg (1986) C-66/85, [17] 'the essential feature of an employment relationship ... is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.'
  • Pfeiffer v Deutsches Rotes Kreuz (2005) C-397/01, "the worker must be regarded as the weaker party to the employment contract and it is therefore necessary to prevent the employer being in a position to disregard the intentions of the other party to the contract or to impose on that party a restriction of his rights without him having expressly given his consent in that regard."
  • Danosa v LKB Līzings SIA (2010) C-232/09
  • Holterman Ferho Exploitatie BV v Spies Von Büllesheim (2015) C-47/14

The European Court of Justice expressly rules that there are generally no exemptions from the term "employee" for executives under European Law, which would allow member states to restrict employee protection on non-executive-employees.

  • Platform Work Directive has been proposed to recognise platforms as employers, and regulate algorithmic management.

Free movement

Articles 45–48 state that workers have the right to move freely and work anywhere in the EU, without discrimination on grounds of nationality, subject to exceptions to preserve public policy, security and health.

There is also an old Directive concerning posted workers which has recently become highly contentious given decisions by the ECJ in The Rosella and Laval.

Working time and child care
The European Social Charter 1961 art 2(1) requires "the working week to be progressively reduced" with "increase of productivity".[10] The Working Time Directive 2003 requires at least four paid weeks of holiday a year.[11] With two-day weekends, most people in the EU work two-thirds of the year or less.[12]

Reflecting basic standards in the Universal Declaration of Human Rights and ILO Conventions,[13] the Working Time Directive 2003 requires a minimum of 4 weeks (totalling 28 days) paid holidays each year,[14] a minimum of 20-minute paid rest breaks for 6-hour work shifts, limits on night work or time spent on dangerous work,[15] and a maximum 48-hour working week unless a worker individually consents.[16]

The Parental Leave Directive 2010 creates a bare minimum of 4 months of unpaid leave for parents (mothers, fathers, or legal guardians) to care for children before they turn 8 years old, and the Pregnant Workers Directive 1992 creates a right for mothers to a minimum of 14 weeks' paid leave to care for children.[17]

Health and safety

The Safety and Health at Work Directive 1989 requires basic requirements to prevent and insure against workplace risks, with employee consultation and participation,[18] and this is complemented by specialised Directives, ranging from work equipment to dangerous industries.[19] In almost all cases, all member states go significantly beyond this minimum.

  • Health and Safety of Atypical Workers Directive 1991 91/383/EEC
  • Minimum Workplace Safety Directive 1989 89/654/EC

Pensions

While there is no wage regulation, the Institutions for Occupational Retirement Provision Directive 2003 requires that pension benefits are protected through a national insurance fund, that information is provided to beneficiaries, and minimum standards of governance are observed.[20] These include protecting the "pension promise" of employers in the event of business trouble, and require minimum standards of funding. Most member states go far beyond these requirements, particularly by requiring a vote for employees in who manages their money.[21]

Since the global financial crisis beginning in 2007, the EU acted to create a network of transnational financial regulators in an attempt to prevent the undercutting of standards by countries competing on low regulation. One of these is the European Insurance and Occupational Pensions Authority, which replaced a committee known as the "Committee of European Insurance and Occupational Pensions Supervisors".

  • European Insurance and Occupational Pensions Authority Regulation 1094/2010

The tax law for cross-border worker (UE and extra-UE) is regulated by the Directive n. 957/2018.[23][24][25][26]

Social security
  • Equal Treatment in Occupational Social Security Directive 86/378
  • Equal Treatment in Social Security Directive 79/7/EEC
  • Social Security Regulation 1408/71/EC and 883/2004/EC
  • Directive 2005/36/EC

Public procurement
  • Public Contracts Directive 2014 (2014/24/EU) arts 18, 69-71 and Annex X
  • RegioPost GmbH & Co v Stadt Landau in der Pfalz (2015) C-115/14

Collective representation
See also: Codetermination and Collective bargaining

The EU is formally not enabled to legislate on collective bargaining, although the EU, with all member states, is bound by the jurisprudence of the European Court of Human Rights on freedom of association.[27]

Participatory governance
A majority of EU countries have legislation, including the Oxford University Act 1854, which protect employees' right to vote for a corporation's management. This is reflected in the Employee Involvement Directive 2001 for European Companies.

If a company transforms from a member state corporation to incorporate under the European Company Regulation 2001, employees are entitled to no less favourable representation than under the member state's existing board participation laws. This is practically important as a majority of EU member states require employee representation on company boards.

Information and consultation

The Information and Consultation Directive 2002 requires that workplaces with over 20 or 50 staff have the right to set up elected work councils with a range of binding rights, the European Works Council Directive 2009 enables work councils transnationally, and the Employee Involvement Directive 2001 requires representation of workers on company boards in some European Companies. In total, the requirement to inform and consult the workforce (negotiate with a view to agreement) is found in four directives.

Collective bargaining

Theoretically, only the European Court of Human Rights should have competence to decide issues related to collective bargaining and industrial action, as the European Union treaties do not confer competence on the EU to legislate on such issues. The ECHR's scope extends to collective bargaining given the right to freedom of association under article 11. In Wilson and Palmer v United Kingdom[28] the Court held that any detriment for membership of a trade union was incompatible with article 11, and in Demir and Baykara v Turkey[29] the Court held "the right to bargain collectively with the employer has, in principle, become one of the essential elements" of article 11.[30]

This approach, which includes affirmation of the fundamental right to strike in all democratic member states,[31] has been seen as lying in tension with some of the Court of Justice's previous case law, notably ITWF v Viking Line ABP[32] and Laval Un Partneri Ltd v Svenska Byggnadsarbetareforbundet.[33] These decisions suggested the fundamental right of workers to take collective action was subordinate to business freedom to establish and provide services.

Equality

Beyond the general principle of equality in EU law, six main Directives protect basic equality rights in EU law. The rules are not consolidated, and on gender pay potentially limited in not enabling a hypothetical comparator, or comparators in outsourced business. Equality rules do not yet apply to child care rights, which only give women substantial time off, and consequently hinder equality in men and women caring for children after birth, and pursuing their careers.

General principle

The principle of equality regardless of status is a fundamental value in all European member states, and constitutes a core principle that pervades the objectives of every institution. Equality was affirmed by the Court of Justice in Kücükdeveci v Swedex GmbH & Co KG[34] to be a general principle of EU law.

This is reflected in a number of TFEU provisions.

  • Article 8 (ex Article 3(2) TEC) "In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women."
  • Article 10, "In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

Protected grounds

The Race Equality Directive 2000, Equality Framework Directive 2000 and Equal Treatment Directive 2006 prohibit discrimination based on sexual orientation, disability, religion or belief, age, race and gender. As well as "direct discrimination", there is a prohibition on "indirect discrimination" where employers apply a neutral rule to everybody, but this has a disproportionate impact on the protected group.

Atypical workers

The Part-time Work Directive 1997, Fixed-term Work Directive 1999 and Temporary Agency Work Directive 2008 generally require that people who do not have ordinary full-time, permanent contracts are treated no less favourably than their colleagues. However, the scope of the protected worker is left to member state law, and the TAWD 2008 only applies to "basic working conditions" (mostly pay, working hours and participation rights) and enabled member states to have a qualifying period.

Job security

Minimum job security rights are provided by three Directives. There are further norms in the Treaties which aspire to create a high level of employment in the EU.

Business restructuring

The Collective Redundancies Directive 1998 specifies that minimum periods of notice and consultation occur if more than a set number of jobs in a workplace are at risk. The Transfers of Undertakings Directive 2001 require that staff retain all contractual rights, unless there is an independent economic, technical or organisational reason, if their workplace is sold from one company to another. Last, the Insolvency Protection Directive 2008 requires that employees' wage claims are protected in the event that their employer falls insolvent. This last Directive gave rise to Francovich v Italy, where the Court of Justice affirmed that member states which fail to implement the minimum standards in EU Directives are liable to pay compensation to employees who should have rights under them.[35]

  • Junk v Kühnel (2005) C-188/03, [43] the Collective Redundancies Directive 1998 ‘imposes an obligation to negotiate’.
  • USDAW v WW Realisation 1 Ltd (2015) C-80/14, Fifth Chamber

Unemployment
See also: European Employment Strategy, Europe 2020, Economy of the EU, and Unemployment in the UK
US and EU unemployment rates, 1993–2009.

Today, the EU is required under TFEU article 147 to contribute to a "high level of employment by encouraging cooperation between Member States".[36] This has not resulted in legislation, which usually requires taxation and fiscal stimulus for significant change, while the European Central Bank's monetary policy has been acutely controversial during the Eurozone crisis. The EU undertakes ad hoc initiatives to combat unemployment, but only indirectly through better regulation. It does not have any specific fiscal stimulus programme, outside funds used for general regional development.

Gig economy legislation

In December 2021, the European Commission published new draft legislation to ensure gig workers get a minimum wage, access to sick pay, holidays and general employment rights.[37] The announcement sent stock prices of gig economy brands lower, including Deliveroo, Just Eat Takeaway, Delivery Hero.[38]

See also

Notes
  1. Alber, Jens; Gilbert, Neil (2010). United in Diversity?: Comparing Social Models in Europe and America. Oxford: Oxford Scholarship Onlin. ISBN 9780195376630. Retrieved 11 September 2020.
  2. McDowell, Manfred (1995). "NAFTA and the EC Social Dimension". Labor Studies Journal. 20 (1). Retrieved 11 September 2020.
  3. Sapir, A. (2005): Globalisation and the Reform of European Social Models, Bruegel, Bruselas. Accessible por internet en
  4. Boeri, T. (2002): Let Social Policy Models Compete and Europe Will Win, conference in the John F. Kennedy School of Government, Harvard University, 11–12 April 2002.
  5. TFEU art 153(1)
  6. See further O Kahn-Freund, 'Hugo Sinzheimer' in Labour Law and Politics in the Weimar Republic (1981) 103, 'The technique of bourgeois society and its law is to cover social facts and factors of social existence with abstractions: property, contract, legal person. All these abstractions contain within them socially opposed and contradictory phenomena: property used for production and property used for consumption, agreements between equal parties and agreements between unequal parties, capitalist and worker. Through abstraction it is possible to extend legal rules, which are appropriate to the social phenomenon for which they were originally developed, to other social phenomena, thereby concealing the exercise of social power behind a veil of law'. A Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (2001). S Deakin and F Wilkinson, The Law of the Labour Market (2005) 90.
  7. See the Charter's text Archived 16 November 2013 at the Wayback Machine
  8. Initially the UK had opted-out, because of opposition by the Conservative Party, but was acceded to when the Labour Party won the 1997 general election in the Treaty of Amsterdam.
  9. Employment Information Directive 2019/1152, formerly Employment Information Directive 1991, 91/553/EEC
  10. European Social Charter 1961 art 2(1)
  11. WTD 2003 art 7, referring to "four weeks" and arts 5 and 6 referring to the concept of "weekly" as meaning a "seven-day period". The choice to phrase time off as "weeks" was interpreted by the UK Supreme Court to mean employees have the right to take weeks off at a time, rather than separate days in the UK context: Russell v Transocean International Resources Ltd [2011] UKSC 57, [19]
  12. See further JM Keynes, Economic Possibilities of our Grandchildren (1930) arguing a 15-hour week was achievable by 2000 if gains in productivity increases were equitably shared.
  13. UDHR art 24, Holidays with Pay Convention 1970 (no 132) and see also the European Social Charter 1961 art 2(1).
  14. WTD 2003 art 7. In the UK, the implementing Working Time Regulations 1998 state "5.6 weeks" is needed, although this is also 28 days, as a "week" was originally taken to refer to a 5-day working week.
  15. WTD 2003 arts 2–5 and 8–13
  16. WTD 2003 arts 6 and 17 and Pfeiffer v Deutsches Kreuz, Kreisverband Waldshut eV (2005) C-397/01
  17. Boyle v Equal Opportunities Commission (1998) C-411/96 requires pay be at least the same level as statutory sick pay.
  18. Safety and Health at Work Directive 1989 (89/391/EC) art 11
  19. See also the Health and Safety of Atypical Workers Directive 1991 extends these protections to people who do not have typical, full-time or permanent employment contracts.
  20. e.g. Institutions for Occupational Retirement Provision Directive 2003 arts 11–12, 17–18
  21. e.g. Pensions Act 2004 ss 241–243
  22. 80/987/EEC
  23. "Directive 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services". EUR-Lex. 28 June 2018 – via Eumonitor.eu. Alt URL at archive.today (archived 18 September 2020)
  24. "Impact posting of workers Directive 2018-957". Archived from the original on 18 September 2020.
  25. "EU Posted Workers Directive: impact on employers posting workers to Belgium". 29 July 2020. Archived from the original on 18 September 2020.
  26. "The EU approved the Directive n. 2018-957 on the posting of workers". 5 September 2018. Archived from the original on 18 September 2020.
  27. ECHR art 11. This codified traditions in democratic member states before World War II. See for example Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2
  28. [2002] ECHR 552
  29. [2008] ECHR 1345
  30. Demir and Baykara v Turkey [2008] ECHR 1345
  31. See further Enerji Yapi-Yol Sen v Turkey (2009) Application No 68959/01
  32. (2007) C-438/05
  33. (2007) C-319/05, and C-319/06
  34. (2010) C-555/07
  35. (1991) C-6/90
  36. TFEU art 147
  37. "Gig economy workers to get employee rights under EU proposals". TheGuardian.com. 9 December 2021.
  38. "Gig economy stocks plunge amid EU regulatory crackdown fears". Reuters. 6 December 2021.

References
  • Catherine Barnard, EC Employment Law (3rd edn Oxford, OUP 2006)
  • E McGaughey, A Casebook on Labour Law (Hart 2018)
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