European labour law
European labour law is the developing field of laws relating to rights of employment and partnership at work within the European Union and countries adhering to the European Convention on Human Rights.
General principles
Treaties
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:"
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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 Organisation and the Versailles Treaty.
Equality
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.
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."
Human rights
- European Convention on Human Rights articles 4, 6, 9, 10 and 11
- European Social Charter 1961
- Community Charter of the Fundamental Social Rights of Workers 1989
Employment rights
Employment contracts
- 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."
- Employment Information Directive 91/553/EEC, right to be told of terms and conditions.
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.
- Citizens Rights Directive 2004/38/EC
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.
- Posted Workers Directive 96/71/EC
Working time and child care
- Working Time Directive 2003/88/EC
- Pregnant Workers Directive 92/85/EEC
- Parental Leave Directive 96/34/EC and 97/75/EC
Health and safety
- Health and Safety of Atypical Workers Directive 91/83/EEC
- Health and Safety Framework Directive 89/391/EC
- Minimum Workplace Safety Directive 89/654/EC
Pensions
A number of Directives deal with minimum standards for protecting the pension promise of employers in the event of business trouble, and require minimum standards of funding.
- Occupational Pension Funds Directive 2003/41/EC
- Insolvency Protection Directive 2008/94/EC[1] article 8
- Robins v Secretary of State for Work and Pensions (2007) C-278/05, the member state pension guarantee institution must reimburse at much more than 20% of pension
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
Social security
- Equal Treatment in Occupational Social Security Directive 86/378
- Equal Treatment in Social Security Directive 97/7/EC
- Social Security Regulation 1408/71/EC and 883/2004/EC
- Directive 2005/36/EC
Collective representation
Participatory governance
There are two general Directives which allow for ongoing workplace participation.
- Transnational Works Council Directive 2009/38/EC art 6(3)
- Employee Involvement Directive
- European Company Regulation
Information and consultation
In the context of business restructuring, the requirement to inform and consult the workforce is most pressing, and the obligation is found in two Directives.
- Information and Consultation Directive 2002/14/EC art 4(2)
- Business Transfers Directive 2001/23/EC art 7
- Collective Redundancies Directive 98/59/EC art 2
Furthermore, in the European Company, the "Societas Europea", allows for employee participation on the board of directors.
- Employee Board Participation Directive 2001/86/EC
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.
- Article 11 ECHR
- Wilson and Palmer v United Kingdom
- Demir and Baykara v Turkey [2008] ECHR 1345
However, a series of decisions recently determined by the European Court of Justice suggest that where member state law allowing trade union action results in a restriction of one of the fundamental freedoms protected by the European Union Treaties, the ECJ will (controversially) intervene.
- The Rosella [2008] IRLR 143 (C-438/05), on freedom of establishment
- Laval Un Partneri Ltd v Svenska Byggnadsarbetareforbundet [2008] IRLR 160 (C-319/05, see also (C-319/06), on free movement of services
Anti-discrimination
Protected grounds
- Equality Framework Directive 2000/78/EC
- Race Equality Directive 2000/48/EC
- Equal Treatment Directive 2006/54/EC
Atypical workers
- Part-time Workers Directive 97/81/EC
- Fixed-term Work Directive 99/70/EC
- Temporary and Agency Work Directive 2008/104/EC
Job security
Business restructuring
- Business Transfers Directive 2001/23/EC
- Insolvency Protection Directive 2008/94/EC, updating 80/987/EEC
- Francovich v Italy (1990)
- Collective Redundancies Directive 98/59/EC
Unemployment
The European Union 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. It does, however, have a high level of employment as a key objective of the union, and its agencies monitor employment across the continent.
- TFEU Article 9, "In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health."
- Articles 145-150, on coordinated strategies to promote employment
- European Union Labour Force Survey
- Eurostat
See also
References
- Catherine Barnard, EC Employment Law (3rd edn Oxford, OUP 2006)
- ↑ 80/987/EEC
External links
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