‘Who is a Worker in European Labour Law?’
by Professor Mark Freedland* and Dr. Nicola Countouris†
Seminars provided in the context of the PFU Seminar Series ‘Goals and Challenges for
Labour Law in the Current Phase of Globalisation’ - Monday 8 November 2010 to Friday 12
November 2010
OUTLINE
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2.
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*
†
INTRODUCTION
AIMS OF THE SEMINARS
STRUCTURE OF THE SEMINARS
SOURCES
SEMINAR OUTLINE
Professor of Employment Law at the University of Oxford and a fellow and tutor of St John's College.
Lecturer in Law at the Facutly of Laws, University College London.
INTRODUCTION
This seminar-based course explores the theme ‘Goals and Challenges for Labour
Law in the Current Phase of Globalisation’ from the particular perspective of the
personal scope of application of the various instruments composing what we
normally understand as European and EU Labour Law. It begins by illustrating the
growth and impact of European employment and equality law, assessing its shifting
rationales, and its role and impact in the currently evolving globalised economy. Its
strengths and weaknesses as a response to the social and regulatory challenges
raised by the relentless globalisation of the world economy, are subsequently
assessed from a particular analytical and critical angle, that is to say the ability of EU
labour law to address the constantly changing notions of ‘work’ and ‘worker’. This
review is completed by a set of normative suggestions on how best to address this
specific set of challenges.
AIMS AND LEARNING OUTCOMES OF THE COURSE
The aims are to enable students to:
acquire knowledge and understanding of the material covered by the course;
develop their critical skills by evaluating the rules, policies and principles of this
area of law;
develop their analytical skills, for example by identifying and resolving legal
arguments raised by questions discussed in seminars;
and develop their synthesizing and research skills, for example through discussion
in class and independent research of relevant materials
By the end of the course, students should be able to:
exhibit a sound understanding of the framework of European employment and
equality law;
critically appraise the law, not only on its own terms, but also from other points of
view;
evaluate the rules studied on their own terms, for example for clarity, consistency
and coherence;
relate the legal rules to the experience in practice of those whom they most
directly concern, considering the impact of the law on protected groups and its
function in society more generally; expose the thinking that underlies different
legal interventions, and evaluate the cogency of the underlying premises;
suggest ways that improvements might be made.
STRUCTURE OF THE SEMINARS
Seminars
There will be five 2-hour seminars from 17.00-19.00 pm, taking place during the
week commencing on Monday 8 November 2010. Students are expected to come
prepared for each seminar having read at least the Essential Reading, and ideally
also the Further Reading. Seminars depend on all students making an input and will
thus be highly participatory, so you will need to be fully prepared in order to benefit
from them. (Many of the articles or extracts required under Essential and Further
Reading will be made available in electronic format).
Prerequisites
It would be preferable if students had some basic knowledge of EC/EU Law, of at
least one national labour law systems, and possibly of EU Labour Law, although
relevant preliminary reading will be indicated. However, no formal prerequisite is
necessary.
FINDING SOURCES OF EUROPEAN EMPLOYMENT AND EQUALITY LAW
We will make frequent reference to case law of the European Court of Justice (ECJ)
and EC legislation. You are strongly advised to familiarize yourself with
searching for such primary sources of EU and CoE law online.
Primary sources: Treaties and Legislation
In addition, you should familiarize yourself with accessing Treaty provisions and
secondary legislation.
All EC legislation is published in the Official Journal (OJ). There are two series: the
L – (legislation) series contains the final texts of secondary legislation, the C –
(communications) series contains information and draft proposals.
The OJ is available online at: http://eur-lex.europa.eu/JOIndex.do?ihmlang=en
You can find the Treaties currently in force at: http://eurlex.europa.eu/en/treaties/index.htm
We will also make reference to some Council of Europe sources, in particular the
European Social Charter. Relevant information can be found online at:
http://www.coe.int/T/DGHL/Monitoring/SocialCharter/
Primary sources:
ECJ Case Law
The case law of the European Court of Justice is published in the European Court
Reports (ECR). This is the authoritative version of ECJ cases and references to
cases will mainly be from this series.
ECJ judgments and opinions of the Advocates-General are available online at:
http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en (the cases are searchable by the
name of the parties or the case number); and at
http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en (cases searchable by year
and case number)
the homepage of the ECJ and the Court of First Instance is:
http://curia.europa.eu/jcms/jcms/Jo1_6308/
European cases are also published in the Common Market Law Reports (CMLR)
which include major cases with a European impact decided by national courts.
ECtHR Case Law can be found on the HUDOC database
http://www.echr.coe.int/ECHR/EN/Header/Case-Law/Hudoc/Hudoc+database/
Secondary sources: Journals
CMLRev = Common Market Law Review
CLJ = Cambridge Law Journal
CLLPJ = Comparative Labor Law and Policy Journal
CYEL = Cambridge Yearbook of European Legal Studies
ELJ = European Law Journal
ELLJ = European Labour Law Journal
ELRev = European Law Review
JCMS = Journal of Common Market Studies
JESP = Journal or European Social Policy
IJCLLIR = International Journal of Comparative Labour Law and Industrial Relations
ILJ = Industrial Law Journal
YEL = Yearbook of European Law
Secondary Sources: Selected internet sources
A good place to start is the server of the European Union, at:
http://europa.eu/index_en.htm. This provides links to news, information about the
institutions, policies, official documents, and recent case law
European Court of Justice: http://curia.europa.eu/jcms/jcms/j_6/
European Commission’s Directorate General for Employment and Social Affairs:
http://ec.europa.eu/social/main.jsp?langId=en&catId=656
European Industrial Relations Observatory:
http://www.eurofound.europa.eu/eiro/index.htm
The Working Papers' series of the Centre for the Study of European Labour Law,
University of Catania, http://www.lex.unict.it/eurolabor/en/research/wp/
‘Social partners’ (organisations of employers and trade unions) eg:
the European Trade Union Confederation (ETUC) http://www.etuc.org/
Centre européen des entreprises à participation publique et des
entreprises d'intérêt économique général (the European association
representing public sector employers and employers’ organisations)
http://www.ceep.eu/
BusinessEurope (formerly UNICE)
http://www.businesseurope.eu/Content/Default.asp
SEMINAR OUTLINE
Date
Seminar
8 Nov
1.
The evolution of EU Labour Law
9 Nov
2.
European Labour Law and Globalisation
10 Nov
3.
Who is a Worker in European Labour Law – Part I? The
traditional EU approach
11 Nov
4.
Who is a Worker in European Labour Law – Part II? The
emerging debates
12 Nov
5.
Who is a Worker in European Labour Law – Part III? The new
normative discourse of ‘Personality in Work’
SEMINAR 1 - THE EVOLUTION OF EU SOCIAL LAW
Monday 8 November 2010
Introduction
This first seminar deals with a series of questions of fundamental importance for the
comprehension of EU social law, and more specifically for what this course defines
as EEEL. We will look at both the historical and the conceptual evolution of European
social law, and try to clarify the domain of the discipline, its rationales, regulatory
instruments, and its underlying tensions. As it will become more evident from the
reminder of this course, we do not take the view that EU social law is, or can be
conceptualized as being, a supranational replica of national labour or social law.
Essential Reading
C. Barnard, EC Employment Law (3rd ed, OUP, 2006), Ch 1 and 2
ILO, 'Social Aspects of European Economic Cooperation' (1956), ILR, 99
P. Syrpis, EU Intervention in Domestic Labour Law (OUP, 2007) Chapter 2
OR
S. Giubboni, Social Rights and Market Freedom in the European constitution - A
labour law perspective (CUP, 2006), Ch 1
EC Commission, ‘Green Paper - Modernising labour law to meet the challenges of
the 21st century’ COM (2006) 708 final (you may also want to read through some
of its Reponses)
Brussels European Council 18/19 June 2009 - Presidency Conclusions and
Eurofound, ETUC Critical of EU Presidency Conclusions on Lisbon Treaty (2009).
See also the ETUC Proposal for a Social Progress Protocol:
http://www.etuc.org/a/5175
Primary sources
Articles 2, 13, and 136-148 EC (European Community Treaty)
Case 43/75 Defrenne (No.2) [1976] ECR 455
Case C-84/94 UK v Council (working time) [1996] ECR I-5755
Further Reading
N. Countouris, ‘European Social Law as an Autonomous Legal Discipline’ (2010)
Yearbook of European Law 2009 (forthcoming, but please email NC for electronic
copy)
S. Deakin, ‘Legal Diversity and Regulatory Competition: Which Model for Europe?’
(2006) ELJ, 440.
Background or Dissertation Reading
L. Azoulai, ‘The Court of Justice and the Social Market Economy: The Emergence
of an Ideal and the Conditions for its Realization’ (2008) CMLRev, 1335.
D. J. Baliley, ‘Explaining the Underdevelopment of Social Europe: a Critical
realization’ (2008) JESP, 232.
C Barnard, ‘The Social Partners and the Governance Agenda’ (2002) ELJ, 80.
B. Bercusson, European Labour Law (2nd ed, CUP, 2009), pp 78-98 and Ch.4-5
L. Funk, ‘European Flexicurity Policies: A Critical Assessment’ (2008) IJCLLIR,
349.
J. Goetschy, ‘The Implications of the Lisbon Strategy for the Future of Social
Europe’ (2007) IJCLLIR, 499.
S. Giubboni, ‘Social Rights under the European Constitution’ (WP CSDLE
‘Massimo D’Antona’ INT 29/2005).
J. Kenner, ‘New Frontiers in EU Labour Law: from Flexicurity to Flex-Security’ in
M. Dougan, Fifty Years of European Treaties (Hart, 2009), 279.
C. Kilpatrick, ‘The ECJ and Labour Law: A 2008 Retrospective’ (2009) ILJ, 180.
P. K. Madsen, ‘Flexicurity – Towards a Set of Common Principles’ (2007) IJCLLIR,
526.
T. Novitz and P. Syrpis, ‘Assessing Legitimate Structures for the Making of
Transnational Labour Law: The Durability of Corporatism’ (2006) ILJ, 367.
S. Sciarra, ‘EU Commission Green Paper ‘Modernising Labour Law to Meet the
Challenges of the 21st Century’ (2007), ILJ, 375.
P. Syrpis, ‘The Treaty of Lisbon: Much Ado … But About What?’ (2008) ILJ, 219.
M. Weiss, ‘Convergence and/or Divergence in Labour Law Systems?: A European
Perspective’ (2007) CLLPJ, 469.
European Commission, ‘Renewed social agenda: Opportunities, access and
solidarity in 21st century Europe’ COM (2008) 412 final: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:DKEY=473792:EN:NOT
European Commission, Employment in Europe Report 2008
Council of the EU, ‘Implementation of the common principles of flexicurity within
the framework of the 2008-2010 round of the Lisbon Strategy - Report by the
"flexicurity" mission’ 17047/1/08 REV1 (en)
Questions for discussion
1. What are the purposes of EU social policy? Consider:
the removal of distortions to competition by harmonizing costs on firms;
the achievement of minimum standards of fairness;
the improvement of the general standard of living;
the prevention of social dumping or the ‘race to the bottom’;
the reduction of unemployment and improvement of economic performance;
the enhancement of participation and identification with the EU (the concept of
citizenship)
Do these aims conflict? How have these aims changed over time?
2. What assumptions underpinned the limited European Economic Community role
in social issues at its foundation? Were those assumptions well-founded?
3. Given the arguments at the origin of the European Economic Community against
the need to harmonize social law, how can one account for the development of
European social law?
4. Has the EC Treaty, as amended by the Treaty on European Union 1992 and
Treaty of Amsterdam 1997, mapped out a coherent area within which
European social policy law can operate? Does it make sense to exclude
freedom of association, pay, strikes and lockouts?
SEMINAR 2 - EUROPEAN LABOUR LAW AND GLOBALISATION
Tuesday 9 November 2010
Introduction
This seminar seeks to provide a contextual introduction for the more specific
discussion that will be carried out in the remaining three seminars. The context it
seeks to map out is that of the relationship between the process of European
integration (and of the progressive harmonisation of labour law regulation in
particular) and the broader dynamics determining global economic and trade
liberalisation and integration. We will point out that in recent years the EU has sought
to engage with Globalisation, in many different ways, from seeking to become "the
most competitive and dynamic knowledge-based economy in the world capable of
sustainable economic growth with more and better jobs and greater social cohesion"
(Lisbon Agenda, March 2000), to promoting ‘flexicurity’, to setting up a European
Globalisation Adjustment Fund, and to its recent reactions to the global economic
recession.
A key question we will try to grapple with is whether European integration is
emerging as a remedial answer to some of the drawbacks of globalisation, or it is
actually just one of its many manifestations.
Essential Reading
•
M. Freedland and N. Kountouris, ‘Labour Regulation and the Economic Crisis:
Challenges, Responses, and Prospects’, in J. Heyes and L. Rychly Labour
Administration and the Economic Crisis: Challenges, Responses and
Opportunities (forthcoming) (text will be provided)
• J. Orbie and L. Tortell, ‘From The Social Clause To The Social Dimension Of
Globalization’, in J. Orbie and L. Tortell (eds) The European Union and the
Social Dimension of Globalization: How the EU Influences the World (Routledge,
2009), Chapter 1.
• J. Stiglitz, ‘The Global Crisis, Social Protection and Jobs’ (2009), International
Labour Review: 11.
Further Reading
•
EU Commission, ‘Outcome of the Public Consultation on the Commission’s
Green Paper “Modernising labour law to meet the challenges of the 21st
century’’, COM(2007) 627 final
• EU Council (2009) ‘Council Conclusions on Flexicurity in times of crisis’. Available
at www.eu2009.cz/scripts/file.php?id=56453&down=yes
• The ‘Europe 2020’ Agenda
o Europe 2020 Strategy , available at
http://ec.europa.eu/eu2020/pdf/COMPLET%20EN%20BARROSO%20%2
0%20007%20-%20Europe%202020%20-%20EN%20version.pdf
o Europe 2020 Integrated Guidelines
http://ec.europa.eu/eu2020/pdf/Brochure%20Integrated%20Guidelines.pd
f
EU Council (17 June 2010) ‘Conclusions’ on Europe 2020 . Available at
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/1
15346.pdf
• EU Globalisation Adjustment Fund
o EGF Regulation (Regulation EC 1927/2006 establishing the EGF as
corrected by OJ L 48/82 of 22.02.2008)
o Regulation (EC) No 546/2009 of the European Parliament and of the
Council of 18 June 2009 amending Regulation (EC) No 1927/2006 on
establishing the European Globalisation Adjustment Fund
o ETUI on EGF http://www.etui.org/education/SETUP-Support-forEuropean-Trade-Union-Projects/Updated-information-about-EU-grantsfor-trade-union-development/European-Union-Programmes-and-BudgetLines/Employment/The-new-European-Globalisation-Adjustment-FundEGF
o
Background or Dissertation Reading
• D. Ashiagbor, ‘Ameliorating globalization? European Union approaches to the
social dimension of globalization’ (2010) Comparative Labor Law & Policy Journal
(forthcoming).
• C. Barnard, ‘Labour Market Integration: Lessons from the European Union’, in J.
DR Craig and S.M. Lynk (eds) , Globalization and the future of labour law (CUP,
2006), 225.
• S. Sciarra, ‘Modarnization of Labour Law – A Current European Debate’ (ILO,
2007) available at
http://www.ilo.org/public/english/bureau/inst/download/sciarra.pdf
• B. Hepple (ed), Social and Labour Rights in a Global Context (CUP, 2002),
selected chapters.
• B. Hepple, Rights at Work - Global, European and British Perspectives (S&M,
2009), Lecture 2.
• C. Barnard, ‘The UK and Posted Workers: The Effect of Commission v
Luxembourg on the Territorial Application of British Labour Law’ (2009) ILJ, 122.
• T. Schulten, ‘Towards a European Minimum Wage Policy? Fair Wages and
Social Europe’ (2008) EJIR, 421.
• C. Joerges and F. Rödl, ‘ Informal Politics, Formalised Law and the ‘Social
Deficit’ of European Integration: Reflections after the Judgements of the ECJ in
Viking and Laval’ (2009) ELJ, 1.
• Lo Faro, ‘Is a Decent Wage Part of a Decent Job? Answers from an Enlarged
Europe’ (WP C.S.D.L.E. “Massimo D’Antona” INT 64/2008).
• Documents relating to the failed adoption of a ‘Proposal for a Directive amending
Directive 2003/88/EC concerning certain aspects of the organisation of working
time’
• EC Commission, ‘Making Globalisation Work for Everyone’ (2003)
http://ec.europa.eu/publications/booklets/move/37/en.pdf
• Speech by Commissioner Mandelson on Globalisation (2007) http://www.europaeu-un.org/articles/en/article_6740_en.htm
Questions for Discussion
1. European Integration: part of the cure or part of the disease?
2. What is the impact of the EU GAF in the livelihoods of European workers?
3. Assess the successes and failures of the Lisbon Strategy?
4. ‘Flexicurity’, myth or reality?
5. Europe 2020: a new beginning or more of the same?
SEMINAR 3 – WHO IS A WORKER IN EUROPEAN LABOUR LAW – PART I? THE
TRADITIONAL EU APPROACH
Wednesday 10 November 2010
Introduction
With this seminar we begin to narrow down the scope of our enquiry, and focus on a
more specific aspect of European Labour Law. The question we begin to explore
today is the personal scope of application of the labour rights discussed or mentioned
in the previous sessions. There is ample evidence that in recent decades, a number
of relations and arrangements for the provisions of personal work, have developed at
the margins or outside the traditional scope of labour law. EU law, just as domestic
systems, has sought to come to grips with this dynamic.
However it is still the case that some crucial questions, such as the personal scope of
application of EU instruments dealing with working conditions, are typically left
unresolved and referred to implementing Member States. The EU/EC has also had
the ambition of regulating ‘atypical’ work and working time at least since the 1970s
(see [1974] OJ C 13/1 and Recommendation 75/457 ). But it was only in the 1990s
that it finally managed to lay down a series of instruments providing for the regulation
of working time, and then part-time work, fixed-term work and, more recently,
temporary agency work. All these Directives on ‘atypical’ work are premised on the
progressive idea of equal-treatment between atypical workers and ‘standard’ workers
with bilateral, full-time, and open-ended contracts of employment. However we will
see how the level of employment protection offered by these three instruments varies
considerably.
Essential Reading
A. Supiot, Beyond Employment (OUP, 2001), 58-84, 174-196.
N. Countouris, The Changing Law of the Employment Relationship Comparative
Analyses in the European Context (Ashgate, 2007), Ch 5.
G. Cavalier and R. Upex, ‘The concept of Employment Contract in European
Private Law’ (2006), IJCLLIR, 608.
Case 105/84, A/S Danmols Inventar [1985] ECR 2639 [25]-[26].
S. Fredman, ‘Women at Work: The Broken Promise of Flexicurity’ (2004) ILJ, 299.
Further Reading
P. Davies and M. Freedland, ‘The role of EU employment law and policy in the demarginalisation of part-time work: A study in the interaction between EU regulation
and member state regulation’, in S Sciarra et al (eds) Employment Policy and the
Regulation of Part-Time work in the European Union: A Comparative Analysis
(CUP, 2004).
Caruso and S. Sciarra (eds), ‘Flexibility and Security in Temporary Work: A
Comparative and European Debate’ (WP C.S.D.L.E. “Massimo D’Antona” INT
56/07).
N. Countouris and R. Horton, ‘The Temporary Agency Work Directive: Another
Broken Promise?’ (2009) ILJ, 329.
Background or Dissertation Reading
H. Collins, ‘Independent Contractors and the Challenge of Vertical Disintegration
for Employment Protection Laws’ (1990) Oxford Journal of Legal Studies 353.
S. Fredman ‘Labour Law in Flux: The Changing Composition of the Workforce’
(1997) ILJ, 337
B. Grandi, ‘Would Europe Benefit from the Adoption of a Comprehensive
Definition of the Term ‘Employee’ Applicable in All Relevant Legislative Models?’
(2008), IJCLLIR, 495.
K. Ahlberg, B. Bercusson, N. Brun and H. Kountouros, Transnational Labour
Regulation: A Case Study of Temporary Agency Work (Peter Lang, 2008).
European Commission, ‘Report on the implementation of the European social
partners' Framework Agreement on Telework’, SEC(2008)2178
S. Engblom, ‘Fixed-term-at-will: The New Regulation of Fixed-term Work in
Sweden’ (2008) IJCLLIR, 133.
L. Ratti, ‘Agency Work and the Idea of Dual Employership: A Comparative
Perspective; (WP C.S.D.L.E. “Massimo D’Antona” INT 68/2009).
L. Zappalà, ‘Abuse of Fixed-Term Employment Contracts and Sanctions in the
Recent ECJ’s Jurisprudence’ (2006) ILJ, 439.
L. Zappalà, ‘The Temporary Agency Workers’ Directive: An Impossible Political
Agreement?’ (2003) ILJ, 310.
Questions for Discussion
1. What are the objectives of EU policy- and law-making in the regulation of atypical
work?
2. Should EU social/employment law be constructed on the assumption that the
forms of work previously regarded as marginal are now its central concern?
3. What does it mean to equalize treatment between workers with different forms of
employment?
4. Do the Directives on part-time work, fixed-term work and temporary agency work
represent an appropriate balance between flexibility for employers and security for
employees?
5. Is there a need to clarify and rationalize the personal scope of application of EU
social legislation?
SEMINAR 4 – WHO IS A WORKER IN EUROPEAN LABOUR LAW – PART II?
THE EMERGING DEBATES
Thursday 11 November 2010
Introduction
In this seminar we begin to sketch out some possible reforms to the rather intricate,
and ultimately unsatisfactory, approach that EU Labour Law takes in respect of its
personal scope of application. We will look at some of the more recent judgement of
the ECJ and at some Advocate General Opinions, as well as at some reform
proposals proposed by various European scholars, sometimes with the endorsement
of some of the EU institutions. Some of the reading done for the previous seminar is,
perhaps inevitably, necessary for this seminar too.
Essential Reading
J. Kenner, ‘New Frontiers in EU Labour Law: from Flexicurity to Flex-Security’ in
M. Dougan, Fifty Years of European Treaties (Hart, 2009), 279.
A. Perulli, Economically dependent / quasi-subordinate (parasubordinate)
employment: legal, social and economic aspects (2003).
Case C-256/01, Debra Allonby v Accrington & Rossendale College and Others
[2004] ECR I-873.
Opinion of the AG in Case C- 313/02, Nicole Wippel v Peek & Cloppenburg GmbH
& Co KG, ECR [2004], I-9483.
Case C-78/98, Preston [2000] ECR I 3201.
Case C-116/06, Sari Kiiski v Tampereen kaupunki [2007] ECR I-7643.
Case Case C-307/05, Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de
Salud [2007] ECR I-7109.
AG Opinion in Case C-104/09, Pedro Manuel Roca Álvarez v Sesa Start España
ETT SA.
Further Reading
•
•
•
•
•
A. Perulli, ‘Lavori Atipici e Parasubordinazione tra Diritto Europeo e Situazione
Italiana’ (2006) Rivista Giuridica del Lavoro ,749.
G. Casale (ed), The employment relationship: A Comparative Overview (Hart,
Oxford, 2010).
P. Alleva, ‘Nuove norme per il superamento del precariato e per la dignità del
lavoro’ (2006) Quale Stato, 215; Proposta di Legge 2185/2007, Norme per il
Superamento del Lavoro Precario of 29 January 2007.
R. Dalmasso, ‘Salariés, travailleurs indépendants et travailleurs économiquement
dépendants : vers une troisième catégorie juridique régissant la relation de travail
?’ (2009) available at http://gree.univnancy2.fr/digitalAssets/51826_DALMASSO.pdf
P. Cahuc et F. Kramarz, De la précarité à la mobilité : vers une Sécurité sociale
professionnelle (La Documentation française. Paris, 2004). On the basis of these
proposals the UMP produced the report Repenser le contrat de travail en
instaurant un contrat de travail unique available at http://www.u-mp.org/site/index.php/ump/debattre/dossiers/economie_emploi/repenser_le_contra
t_de_travail_en_instaurant_un_contrat_de_travail_unique
•
•
•
Propuesta para la reactivación laboral en España, available at
http://www.crisis09.es/propuesta/. Also available in English
http://www.crisis09.es/PDF/restart-the-labor-market.pdf
Disegno di Legge n.1481/2009, ‘Disposizioni per il superamento del dualismo del
mercato del lavoro, la promozione del lavoro stabile in strutture produttive
flessibili e la garanzia di pari opportunità nel lavoro per le nuove generazioni’.
European Expert Group on Flexicurity, Flexicurity Pathways – Turning Hurdles
into Stepping Stones (June 2007).
Background or Dissertation Reading
•
•
•
•
•
•
•
H. W. Arthurs, Fairness at Work – Federal Labour Standards for the 21st Century
(2006).
M. J. Bernier et al., Les Besoins de Protection Sociale des Personnes en
Situation de Travail non Traditionnelle (2003).
P-H Antonmattei and J-C Sciberras, Le travailleur économiquement dépendant :
quelle protection ?- Rapport à M. le Ministre du Travail, des Relations sociales,
de la Famille et de la Solidarité (Novembre 2008).
P.H. Antonmattei and J. C. Sciberras, ‘Le travailleur économiquement dépendant,
quelle protection ?’, (2009) Droit Social, 221.
J. Cabeza Pereiro, ‘The Status of Self-employed Workers in Spain’ (2008), ILR,
91.
T. Boeri and P. Garibaldi, Un Nuovo Contratto per Tutti (Chiarelettere, Milano,
2008).
G. Ghezzi (ed.), La disciplina del mercato del lavoro, proposte per un testo unico
(Ediesse, Roma, 1996).
Questions for Discussion
1. Is the Court of Justice pushing for a reform of its traditional approach? How
much deference to the national definitions of contract or employment
relationship is the CJEU willing to accept?
2. Should the EU introduce an instrument for the protection of ‘economically
dependent workers’? Discuss.
3. Would a ‘single contract’ amount to a victory for labour lawyers, or to their
final capitulation?
4. Should ILO R-198 be better integrated with EU law instruments? Discuss by
reference to Jeff Kenner’s proposals.
5. Please identify and elaborate on at least five criteria for the distinction
between ‘autonomous worker’ and ‘bogus self-employed’.
SEMINAR 5 - WHO IS A WORKER IN EUROPEAN LABOUR LAW – PART III?
THE NEW NORMATIVE DISCOURSE OF ‘PERSONALITY IN WORK’
Firday 12 November 2010
Introduction
In this final seminar we discuss a series of proposals which have been the object of
our own research over the past few years. In a nutshell we have come to argue that
the concept of ‘personal work relation’ (PWR) should be placed at the centre of
labour law and become the yardstick on the basis of which its personal scope is
defined. Our idea of PWR relies on a number of ancillary concepts (such as that of
‘personal work nexus’ and personal work profile’) that have been the disseminated in
other published work, and that will not be discussed today.
Instead we wish to elaborate on the notion of PWR, and the normative discourse on
which it is premised (a normative discourse that we define as ‘personality in work’)
through the lens of the EU Charter. The adoption of the Charter of Fundamental
Rights of the EU, and its coming into force after the ratification of the Lisbon Treaty,
adds a further layer of complexity to the already intricate panorama discussed in the
previous seminars. The Charter recognises a number of important labour rights to
‘workers’, including the right to be protected in case of ‘unjustified dismissal,’ and the
right to ‘fair and just working conditions’, begging the question of ‘who is a worker’ for
the purposes of the application of its provisions.
We will argue, by reference to a number of textual and doctrinal analyses, that an
answer to this question requires a robust reform of the traditional approach described
in seminar 3, and possibly in ways that are (even) more ambitious than the proposals
discussed in seminar 4.
Essential Reading
•
•
•
•
•
M. Freedland and N. Kountouris, ‘Labour Regulation and the Economic Crisis:
Challenges, Responses, and Prospects’, in J. Heyes and L. Rychly Labour
Administration and the Economic Crisis: Challenges, Responses and
Opportunities (forthcoming) (text will be provided)
M. Freedland, ‘Application of Labour and Employment Law Beyond the Contract
of Employment’ (2007), International Labour Review , 5
The Charter of Fundamental Rights of the EU, the 2007 Explanations and the
original Explanations of the Convention (CONVENT 49) . You may also want to
consult the Protocol on the Application of the EUCFR to the UK and Poland.
European Committee of Social Rights, Conclusions XVI-2 (Austria), (Strasbourg,
2005), 11
Council of Europe, Digest of the Case Law of the European Committee of Social
Rights (1 September 2008), 333
Further Reading
•
M. R. Freedland, 'From the Contract of Employment to the Personal Work Nexus',
(2006) ,35(1), Industrial Law Journal, 1
•
•
M. R. Freedland and N. Kountouris, ‘Towards a Comparative Theory of the
Contractual Construction of Personal Work Relations in Europe’, (2008), 37(1),
Industrial Law Journal, 49
D. Ashiagbor, ‘Economic and Social Rights in the European Charter of
Fundamental Rights’, (2004) EHRLR, 62
Background or Dissertation Reading
J.-F. Akandji-Kombé, ‘The Material Impact of the Jurisprudence of the European
Committee of Social Rights’, in G. De Búrca and B. De Witte, Social Rights in
Europe (OUP, Oxford, 2005), 89
S. Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social
Space’ (2006), ELJ, 41
G. Cohen, ‘Are Freedom and Equality Compatible?’, in E. Goodin, and P. Pettit
(eds.), Contemporary Political Philosophy – An Anthology (Blackwell, Oxford,
2006) p. 416
G. Cohen, Why not Socialism?, (PUP, Princeton, 2009)
G. Cohen, Rescuing Justice and Equality, (HUP, Harvard, 2008)
A. Sen, ‘Work and rights’ (2000), ILR, 119-128
A. Sen, The Idea of Justice, (Penguin, London, 2009).
G. Moon and R. Allen, ‘Dignity discourse in discrimination law: a better route to
equality?’ (2006), EHRLR, 610.
M. Arany Tòth, ‘The right to dignity at work: reflections on art. 26 of the revised
European Social Charter’ (2008) Comp. Lab. Law § Pol.Y Journal, 275
A. Supiot ‘Conclusion: la capacité, une notion à haute potentiel’ in S. Deakin and
A.Supiot (eds.), Capacitas (Hart, Oxford, 2009), 165
B. Veneziani, ‘Il Lavoro tra l’Ethos del Diritto e il Pathos della Dignità’ (2010),
Giornale di Diritto del Lavoro e Relazioni Industriali (forthcoming).
Questions for Discussion
1. Should the EU Charter refer to a unified notion of ‘worker’, or should it instead
accept that different fundamental rights may exclusively apply to some
categories of workers?
2. How does the fundamental rights discourse affect the scope of application of
labour rights in your own national labour law systems?
3. ‘Contract’ or ‘employment relationship’?
4. What do you understand by ‘dignity at work’?
5. Should ‘stability’ in work relations be a normative value in and of itself? Can it
apply beyond traditional forms of dependent employment?