DISPATCHES

A dispatch is a brief essay, ordinarily not to exceed five printed pages, describing a significant development in national labor law: legislative, judicial, administrative. The importance of the development in domestic context should be explained; the reasons for transnational interest might be suggested.

Proposed dispatches should be submitted to the Journal’s editorial office at law-cllpj@illinois.edu and, if approved, will be posted on the Journal’s website. The titles and authors of Dispatches appearing from one number to the next will be published in the Journal.

 

 

Dispatch No. 13 – Italy – “With great power comes virtual freedom’: A Review of the First Italian Case Holding that (Food-delivery) Platform Workers are not Employees,” by Antonio Aloisi*

December 3, 2018

Introduction

While platform work is on the rise at a global level, attracting intense media attention and provoking considerable discussion among social partners, academics, and international organizations[[1]], there are only a few reported European court cases on the employment status of workers—a key controversial issue inherent to this phenomenon. Concomitantly, current social institutions seem to be under pressure: the heated debate revolves around the scope of application of employment protection and its suitability and adaptability in the midst of the ongoing digital transformation. On the one side, existing legal categories are deemed unable to accommodate tech-enabled organizational patterns and their “nonstandard” qualities, and on the other, “disruption” and “innovation” come at a high price for workers. Indeed, several “titans” are gaining their competitive advantage thanks to an aggressive (paradigmatic) mode of business based on avoiding the vast bulk of labor-related responsibilities whilst retaining a command-and-control position toward the contracted-out workforce.

Nevertheless, over the last years, tribunals and public bodies—in the wake of labor lawyers and advocates—have played an active role in raising public awareness on employment and working conditions in nonstandard arrangements facilitated by digital infrastructure (mainly apps)[[2]]. At the European level, the preliminary judicial results are mixed or even truly contradictory. Admittedly, it would be imprudent to generalize specific conclusions, as they are fact-dependent, let alone the heterogeneity of conditions across different types of platform work. In a few cases, the legal disputes lean toward the recognition of an employment relationship. On the contrary, more often they have resulted in the rejection of platform workers’ claims because of the supposed freedom they enjoy in deciding if and when to turn on the app and complete a task or project. This argument seems far from persuasive and, above all, it does not consider the formidable and even boundless advances of digital tools when it comes to organizing and vetting workers[[3]].

The first Italian ruling has long been awaited for various reasons, including the possibility of assessing both the enduring legacy of settled case law and the relevance of a new provision introduced by the 2015 labor market reform that, according to prudent interpretations, could extend labor protections to self-employed workers whose personal activity is organized by a client[[4]]. Yet, last April, the Employment Tribunal of Turin rejected a claim from six riders of the platform Foodora to be reclassified as employees. More recently, the Employment Tribunal of Milan made a similar decision for a delivery courier working for the platform Glovo and using his own car[[5]]. The importance of these rulings goes beyond the specific situations at stake, since they touch on the judicial interpretation of the notion of employment for the purposes of Italian labor law. This review mainly covers the Foodora case, which presents the greatest hermeneutical complications, but to a certain extent similar considerations are valid as regards the second case.

The dispatch is organized as follows. Section I describes the main facts underlying the legal dispute. Section II offers a context analysis of the Italian legal framework by clarifying the differences between the notions of employment and self-employment. Particular attention is paid to the most recent legislative interventions aimed at extending labor protections to independent workers whose personal activity is organized by the client. By arguing that the judge failed to consider the specificities of the digital work model, section III criticizes the reasoning relying on a too-narrow and formalistic understanding of the notion of subordination as well as the conclusive relevance attributed to the riders’ presumed flexibility. Section IV closes by summarizing the main rulings decided in a set of European countries. It also provides some reflections on the possibility of applying the current legislation to platform worker. In sum, the dispatch advocates that, in order to properly classify the nature of the actual activity performed by platform workers, judges should assess the role of digital tools when it comes to organizing, monitoring, and disciplining the workforce, rather than merely focusing on discontinuity and flexibility.

I. A Snapshot of the Main Facts under Scrutiny, According to the Judge’s Description

The facts underlying the first litigation on platform work ever decided in Italy were briefly outlined by the judge[[6]], who specifically refused to consider the appropriateness of the agreed remuneration, the risk of labor exploitation and “the other complex issues concerning the gig-economy.” The Italian branch of Foodora hired six riders under a “coordinated and continuous collaboration” contract (a subcategory of the self-employment model, as discussed in more detail below). The contract expired and was not renewed by the platform at the end of November 2016. The group of workers filed an employment claim demanding: (i) wage differentials according to either the national collective agreement for logistics or that of the service sector; (ii) job reinstatement after the wrongful termination; (iii) compensation for the harm suffered as a result of the infringement of privacy; and (iv) actions for damages for breach of safety and health regulations. They also alleged they were dismissed as a form of retaliation against their decision to lead or take part in a collective demonstration against the shift in the payment system from an hourly-based to a piece-rate model, announced in October 2016.

According to the judge’s assessment (the case also involved witness examination), after filing an online form, the six riders attended a preliminary interview where middle managers clarified that a bicycle and a smartphone with Internet access were required for the work and requested a deposit of € 50 of their riders for safety devices such as helmets, fluorescent jackets, and a lunchbox. The appellants voluntarily signed a “collaborazione coordinata e continuative”[[7]] pre-formulated standard contract according to which “the worker shall be free to apply or not apply for a specific delivery depending on her or his personal availability” (p. 4). The gross hourly pay was € 5.60. The workers had to enroll in a separate social security regime and were covered by insurance paid for by the platform (only two-thirds of the premium). Moreover, the contract stipulated that, “the necessary coordination aside, the worker shall not be subject to any hierarchic or disciplinary power or time and availability obligation to the platform.” Despite that, once the order was accepted, the worker had to deliver the meal “mandatorily” within thirty minutes of collection—a penalty of € 15 would otherwise apply.

Slots were assigned through an online scheduling software (named “Shyftplan”) and an app downloaded on the worker’s smartphone (“Hurrier,” previously “Urban Ninjia”). At the beginning of every week, the platform published a list of available shifts and the relevant number of riders needed. Having collected the personal preferences, a Foodora team leader confirmed the shift allocation. Based on the agreed calendar, the workers wearing the company’s branded clothes had to reach one of the “hotspot areas,” turn on the app with their own credentials, log into it, and activate the geo-localization widget. The app displayed orders and location. Once accepted, the rider had to reach the restaurant, pick up the order, check it, and notify the result via the app (in the event of any cancellation, the rider had to send a message to the support staff). After that, informed of the details concerning the exact address and location, the rider had to deliver the meal to the final customer and send confirmation of the completed drop. Admittedly, this format of service provision is commonly found in the food-delivery (sub)sector.

II. The Normative Background (an “All-or-Nothing” Scenario), the Case-by-Case Approach and the “Jobs Act” Reform(s)

Before reviewing the judicial reasoning, it is worth sketching out the Italian system where there exists a fundamental strict binary divide between employment (lavoratore subordinato) and self-employment (lavoratore autonomo), reinforced by the recent legislative interventions. Although in a civil law system, the discretion enjoyed by the Employment Tribunals as regards the assessment—and the subsequent qualification—of a work relationship is remarkable. Tribunals normally base their rulings on evidence, irrespective of how the parties classify a given contractual relationship. For the purposes of the distinction between the two categories, the way that tasks are structured and accomplished is crucial. The “primacy of facts” is established as a general principle according to which substance must prevail over form, i.e. the label placed on the relationship is a factor in the judicial outcome, but it is certainly not the most important one[[8]]. Moreover, neither the legislature nor the contractual parties can classify a relationship in order to exclude the protective regime attached to its actual nature (according to the principle of “non-availability of the legal regime”).

Article 2094 of the Civil Code defines a subordinate employee as “a person bound, in return for a remuneration, to cooperate in the firm by providing either physical or intellectual labour, under the direction of the entrepreneur.” The key element of the employment relationship is the worker’s personal subjection to the command, organizational, and disciplinary powers of the employer (for example, the ability to modify the content of the contractual relationship unilaterally, to monitor performance execution and to implement sanctions in case of failure to comply with guidelines)[[9]]. More specifically, managerial power—whatever the means used to exercise it—and protective obligations are hallmarks of employment status, together with a complementary trade-off: employees have to follow their employers’ orders in exchange for economic stability and legal security[[10]]. Understandably, this legal template allows for the implementation of a hierarchical structure, enabling the employer to implement flexible strategies in the use of the labor force in such a way as to cope with changing organizational needs.

A variety of doctrines have been developed to ensure that the law qualifies a relationship according to the realities of the situation. A ruling could disregard or override the contractual label that the parties choose when the substance of the work relationship contains legal indications of subordination and if the level of dependence is such that in reality the relationship is one of employment. Because of the complexity and diversity of the process, case law developed a wide spectrum of “symptomatic” factors that could suggest the existence of an employment relationship “by approximation.” The so-called “typological” test (i.e. a balanced assessment) covers a range of complementary and accessory “indexes” such as (i) the requirement that the worker follows reasonable work rules or even nonspecific guidance; (ii) the length of the relationship and its continuous nature; (iii) the respect of set working hours; (iv) the form of remuneration (i.e. a fixed monthly salary); (v) integration with the employer’s core business; (vi) the absence of risk of loss related to the business. The analysis is multifactorial and no single factor is dispositive.

On a different note, article 2222 of the Civil Code provides for the definition of a contract for services (“contratto d’opera”) under which “a self-employed worker performs work or services in exchange for remuneration mainly through her own effort and in the absence of a relationship of subordination vis-à-vis the principal.” However, more than forty years ago, the Italian legislator has introduced a subset of the self-employment category, which has been mistakenly considered an intermediate category. Act No. 533 of 1973 modified article 409 sub-section 3 of the Code of Civil Procedure by declaring the legislation concerning the settlement of labor disputes applicable to commercial agents and to all “contractual relations implying a continuous performance of work, mainly of a personal character, although not in a position of subordination” (collaborazione coordinata e continuativa, the so-called Co.Co.Co.). As a result, some protection was extended to a tranche of self-employed workers (“quasi-subordinate worker,” lavoratori parasubordinati). Hiring these employees is substantially cheaper than hiring an employee who is entitled to substantive labor rights such as annual leave, sick leave, maternity leave, overtime, and job security against unfair dismissal[[11]].

After a permanent process of legislative intervention[[12]], the ultimate result is a return to the binary distinction of employee and self-employed workers. In particular, article 2 of Legislative Decree 81 of the 2015 Jobs Act reform has meritoriously extended employment protection to workers whose performance is organised by the client, also as regards place and working hours[[13]]. This new provision, applicable only when the performance displays a purely personal and continuous nature, has given rise to conflicting interpretations and criticism of its unfortunate wording[[14]]. Despite that, it could provide for an easing of the burden of proof[[15]]. In 2017, the legislature further amended the article governing (genuine) coordinated and continuous collaborations whose scope is now limited to “collaborators organis[ing] the work activity independently, in accordance with the coordination arrangements mutually agreed by the parties.” In short, if job performance is organized by the principal, the collaborator must be treated as an employee, if the work is organized autonomously, although in coordination with the client, then the activity is outside the domain of labor law.

III. The Judges’ Narrow Interpretation of the Notion of Subordination: An Inadequate Solution to the Long-Lasting Dilemma

At first glance, the judge in the commented Foodora case relied on a very narrow understanding of the notion of subordination, “defined as the worker’s subjection to managerial, organisational and disciplinary powers, resulting from specific orders given [by the employer] as well as to a constant surveillance and monitoring over the performance execution”[[16]]. Dissimilarly, alternative case law acknowledges that workers could have a considerable amount of autonomy—granted by general directives—yet they still could be classified as employees. It must be said that case law has moved toward a “soft” notion of subordination in order to bring both creative and complex as well as menial and repetitive activities under the protective scope of employment status[[17]]. Yet the judge fully subscribed to a traditional approach based on a continuous and detailed notion of control (an analogic version of this power), without even exploring alternative and pluralistic conceptualizations[[18]]. In this regard, it should be recalled that the European Commission’s Communication on the agenda for the collaborative economy stresses that “[t]he existence of subordination is not necessarily dependent on the actual exercise of management or supervision on a continuous basis”[[19]].

Moreover, it is striking how the examination was limited to a merely formalistic analysis (“there was no obligation the workers offer their services and no obligation for the company to provide further work”). Nothing is said on the subtle or implicit forms of constraint affecting the worker’s will. The metrics on availability, time-to-respond, and success rate, not to mention the erratic evaluation outsourced to customers, might impact on a rider’s personal career and determine whether the worker will be assigned the selected shifts in the future and will receive further orders. Therefore, it could be said that the implicit threat of unspecified consequences, together with the inevitability of following the platform’s guidelines, makes workers compliant with “tacit binding instructions,” thus minimizing their autonomy. There can be little doubt that platforms monitor, admonish, or even terminate workers for failing to meet internally set standards, “in [a] form . . . that far exceeds the level of supervision experienced by most traditional employees”[[20]]. Hence, the supposed autonomy could be, in a way, merely virtual. Moreover, technically speaking, riders are free because the platforms can rely on an almost infinite range of “fungible” workers, promptly recruited thanks to near zero transaction costs.

In spite of this strict definition of command-and-control, the judge emphasized a factor bearing little or no relation to it. By relying on a previous interpretation developed in the context of a misclassification lawsuit filed by a motorcycle messenger (known as “pony express”) in the late 1980s (a broadly comparable, but not identical situation, also in the light of the nondigital organization of that business)[[21]], the judge claimed that “subordination is at odds with the possibility for a worker to interrupt the performance”[[22]]. In short, the Tribunal stated that the workers were free to decide when to work, by accepting or refusing a particular call, and even to disregard previously agreed shifts. In the eyes of the judge, this instantiation is “in itself, a decisive factor when it comes to excluding the workers’ subjection to the managerial and organisational power of the employer, since it is evident that, if [the platform] cannot request work, then it cannot exercise its command power” (p. 7). After this “cursory assessment,”[[23]] the judge scrutinized the existence of managerial and disciplinary prerogatives, “once workers are in a shift, after communicating their availability,” but without success, in spite of the allocation of shifts, the specification of locations, the repeated follow-up phone calls, the remote monitoring, and the internal ranking of the best performers.

This section concludes by focusing on the restrictive interpretation given to art. 2 of Legislative Decree 81/2015. As argued above, the 2015 reform marked a paradigm shift: instead of amending or rewording traditional definitions, the protective effects of employment status were “attached” to a specific group of collaborators—nominally independent—whose personal activity is unilaterally organized by the principal (a criterion based on space-temporal coordination). According to preliminary comments, the new regulatory tactic could have captured atypical arrangements facilitated or, even better, organized via a digital infrastructure[[24]]. However, these new provisions are much-debated in relation to their effectiveness in “updating” the scope of employment. Nevertheless, only by way of “obiter dictum,” the judicial interpretation goes even further, thus neglecting the expressed intention of the law-maker as well as the text of the law and its systematic interpretation[[25]]. It is indeed contradictory that the requirements to be met in order for a worker to qualify for the protection traditionally afforded to employees are even stricter than the ones defining the status of employment[[26]].

IV. The Italian Rulings in a Comparative Perspective: Discussing the Way Forward

The strong intermingling of old and new legal challenges constitutes the underlying reason why the gig economy has attracted so much interest in recent times. Roughly speaking, across Europe the “qualifying dilemma” has been dealt with in two conflicting ways. In June a ruling by the Valencia court stated that Deliveroo’s riders are employees because they are subject to tight control by the platform monitoring their delivery rides, with GPS features, and to the laying down of the main terms and conditions, including prices[[27]]. Last March, a Belgian administrative commission came to similar conclusions[[28]]. Conversely, in 2017 the Paris Court of Appeals held that a Deliveroo courier could not be reclassified as an employee because he was free to select his shifts, in addition to refusing to work without any consequences[[29]]. Two other British cases involving drivers and couriers respectively were decided in the opposite way. The first, dating back to 2016, has placed Uber drivers in an intermediate category entitled to minimum wage and working time protection. By fully upholding the Employment Tribunal’s findings[[30]], the Employment Appeal Tribunal argued that the platform exercised significant control over how drivers performed their work[[31]]. On the contrary, an administrative committee[[32]] and a High Court denied food-delivery workers statutory collective labor rights by virtue of a clause, allowing them to be replaced by other colleagues, purposely introduced and hardly practicable.

As emerges from this case note, the judge in Turin decided the case by looking at the rear-view mirror. The ruling uncritically embraces the case law considered crucial for the determination of employment, of whether workers are free to decide their time schedule. In the search for a legal precedent, the judge applied the same reasoning made thirty years ago for delivery couriers on mopeds, even though technological progress and the regulatory framework have taken significant steps forward. He renounced investigating in depth the impact that the digital transformation is having on employment relationships, specifically in the last mile logistics sector. He argued that elements such as working conditions determined by the platform, the indication of the places where and precise time limit within which the deliveries must be completed, the frequent monitoring activity through the GPS feature must be considered “defining patterns of the business model, rather than distinctive elements of the nature of the relationship” (p. 11), arguably a strong legal argument[[33]]. Still, the Foodora case is a squandered opportunity to apply to platform work a provision of the Jobs Act, seeking to extend employment protection to workers who are only nominally independent without too much upheaval. “[A]s [art. 2 of Legislative Decree 81/2015] is worded, it has a narrower scope than the notion of employment” (p. 14), as disputed by the judge, but this puzzling reading would appear to violate the spirit, if not the letter, of the new law.

At the time of writing, several remarkable initiatives have been taken, namely a new national collective agreement regulating the job position of the “rider” in the logistics sector, the draft of a new legislative decree proposed by the Labour and Industry Minister (this project was abandoned), and a number of local efforts carried out by municipalities, workers’ representatives, spontaneous movements and food delivery platforms[[34]]. However, in many cases, the delimitation of the “border areas” of the employment and self-employment statuses has regularly posed insurmountable difficulties. In Italy, as well as in other European countries, ascertaining employment status is not merely a dogmatic issue, as is pivotal to determine the scope of workers’ protection. Therefore, it is important to interpret the quintessence of the notion of subordination as a legal subjection to the managerial control and disciplinary authority of the employer. To this extent, the flexibility of workers to refuse individual calls does not preclude the existence of unilateral management or reinforced surveillance[[35]], nor does it justify the exclusion of nonstandard workers from labor protection[[36]]. In addition to this, a more in-depth examination of working conditions could instead lead to different solutions. Indeed, despite the seeming novelty of the medium, the hierarchical or, at least, organizational power over platform workers might be robust at times when performance is executed, as illustrated by the case at hand.

* Antonio Aloisi, Ph.D., is a Max Weber Postdoctoral Fellow in the Law Department at the European University Institute and Teaching Fellow in European Social Law at Bocconi University: antonio.aloisi@eui.eu

 Notes

  1. For most recent contributions see, for instance, Willem Pieter de Groen et al., Employment and Working Conditions of Selected Types of Platform Work, Eurofound (2018); Janine Berg et al., Digital Labour Platforms and the Future of Work: Towards Decent Work in the Online World, International Labour Office (2018).
  2. Notably, the European Court of Justice reveals expressly the Uber business model: “[the platform] influence[s] . . .  the conditions under which that service is provided by those drivers. On the latter point, it appears, inter alia, that Uber determines at least the maximum fare by means of the eponymous application, that the company receives that amount from the client before paying part of it to the nonprofessional driver of the vehicle, and that it exercises a certain control over the quality of the vehicles, the drivers and their conduct, which can, in some circumstances, result in their exclusion.” The Court took the view that the service provided by the platform was more than a matching activity connecting, by means of a digital app, a nonprofessional driver with a private individual wishing to make “urban journeys.” It is important to stress the fact that the Advocate General’s Opinion refrains from addressing the crucial issue of worker classification, denying that the intrusive control is “exercised in the context of a traditional employer-employee relationship.” See Case C-434/15, Asociación Profesional Elite Taxi v. Uber Systems, ECLI:EU:C:2017:981 (Dec. 20, 2017) (Spain).
  3. For a preliminary mapping exercise, see Valerio De Stefano, Platform Work and Labour Protection. Flexibility Is Not Enough, Regulating for Globalization (May 23, 2018), https://goo.gl/w6Ujai.
  4. Annamaria Donini, Il Lavoro su Piattaforma Digitale ‘Prende Forma’ Tra Autonomia e Subordinazione. Nuove Regole per Nuovi Lavori?, 26 Diritto delle Relazioni Industriali, 164, 164-67 (2016).
  5. Tribunale di Milano, 10 settembre 2018, n. 1853.
  6. Tribunale di Torino, 11 aprile 2018, n. 778.
  7. Literally “coordinated and continuous collaboration.”
  8. See also International Labour Organisation, R198 - Employment Relationship Recommendation (2006). For a detailed guide, see International  Labour Organisation, Regulating the Employment Relationship in Europe: A Guide to Recommendation No 198 (2013).
  9. See, for instance, Cass., 29 novembre 2007, n. 24903 (It.) (“the principal element of an employment contract—and the criterion that distinguishes it from a self-employment contract—is subordination, understood as a link of personal subjection to the power of direction”). See also Cass., 13 maggio 2004, n. 9151 (It.); Cass., 11 maggio 2005, n. 9894 (on the notion of “hetero-organisation”). For a complete overview, see Luca Nogler, The Concept of ‘Subordination’ in European and Comparative Law (Università degli Studi di Tre ed. 2009).
  10. Jeremias Prassl,, Collective Voice in the Platform Economy: Challenges, Opportunities, Solutions, Syndicat European Trade Union (Sept. 2018), https://goo.gl/L3x2R6.
  11. See Miriam Cherry & Antonio Aloisi, Dependent Contractors in the Gig Economy: a Comparative Approach, 66 Am. U. L. Rev. 635, 635-89 (2017).
  12. Id.
  13. However, collective agreements may lead to opt-out from labor law regulation.
  14. Tosi Paolo. (2015), L’art 2, Comma 1. D.lgs. n. 81/2015: Una Norma Apparente?, 6 Argomenti di Diritto del Lavoro 1117, 1117-133; Fiorella Lunardon, Le Reti D’impresa e le Piattaforme Digitali della Sharing Economy, 2 Argomenti di Diritto del Lavoro 375, 375-88 (2018).
  15. The elements that should be considered are: (i) a purely personal nature of the activity and (ii) the organisation of the performance by the client (a criterion based on space-temporal coordination). If that is the case, the application of employment protection legislation is “automatic.”
  16. Cass., 8 febbraio2010, n. 2728 (It.) as mentioned in Tribunale di Torino, supra note 6, at  6.
  17. This was done by taking into account accessory indexes such as “general guidance merely indicating an objective which requires subsequent implementing actions” or the “integration into the employer’s core business.”
  18. Maurizio Del Conte& Orsola Razzolini, La Gig Economy alla Prova del Giudice: la Difficile Reinterpretazione della Fattispecie e Degli Indici Denotativi, 40 Giornale di Diritto del Lavoro e di Relazioni Industriali 673, 673-82 (2018); Giuseppe Recchia, Gig Economy e Dilemmi Qualificatori: La Prima Sentenza Italiana, 7 Il Lavoro nella Giurisprudenza 721-34 (2018).
  19. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “A European agenda for the collaborative economy.” See A European Agenda for the Collaborative Economy, SWD (2016) 184 final, June 2, 2016, at 12 (referring to Danosa (C-232/09)). See also Antonio Aloisi, The role of European Institutions in Promoting Decent Work in the Collaborative Economy, in  Multi-disciplinary Design of Sharing Services 161 (Maurizio Bruglieri ed., 2018).
  20. Elizabeth Kennedy. (2016), Employed by an Algorithm: Labor Rights in the On-Demand Economy, 40 Seattle U. L. Rev.,,987, 987-1048 (2016).
  21. Cass., 10 Luglio 1991, n. 7608, in 1 Rivista Italiana di Diritto del Lavoro (RIDL) 1, 103 (1992); Cass., 20 January 2011, n. 1238, in RFI, 2011, No. 721. On the contrary, Cass., 21 Marzo1989, in 2 FI ¶ 462. See Marco Biasi, Il Tribunale di Torino e la Qualificazione dei Riders di Foodora, 4/5 Argomenti di Diritto del Lavoro (forthcoming Novermber 2018).
  22. The Tribunal of Milan and the highest judicial authority, Corte di Cassazione, agreed that the worker was independent. See Tribunale di Milano, 10 Ottobre 1987, in 2 Rivista italiana di diritto del lavoro 688 (1987) (“[t]he work, performed by the courier assigned to pick up and delivery by using the own vehicle, has not to be considered ‘subordinate,’ in the absence of the crucial requirement of continuity. Those workers are not required to appear every day at the workplace and the can refuse to complete the performance”). See also Cass., 14 aprile 1989, n. 5671 (It.).
  23. Del Conte et al., supra note 18.
  24. Antonio Aloisi, Il Lavoro ‘a Chiamata’ e le Piattaforme Online Della Collaborative Economy: Nozioni e Tipi Legali in Cerca di Tutele, 2 Labour & Law Issues 16, 16-56 (2016).
  25. Pietro Ichino, Subordinazione, Autonomia e Protezione del Lavoro Nella Gig-economy, 2 Rivista Italiana di Diritto del Lavoro 294, 294-303 (2018).
  26. In particular, the judge argued that, in order to qualify for the protection afforded by art. 2 of the Legislative Decree 81/2015, the worker “must be subject to the [fully-fledged] managerial and organisational power of the employerand not only as regards the time and space requirements” (p. 14). See Patrizia Tullini, La Qualificazione Giuridica dei Rapporti di Lavoro dei ‘Gig-workers’: Nuove Pronunce e Vecchi Approcci Metodologici, 1 Lavoro, Diritti, Europa 1, 1-9.
  27. See CGPJ 1 June 2018, Roj: SJSO 1482/2018, ECLI: ES:JSO:2018:1482 (Spain).
  28. Commission Administrative de Règlement de la Relation de Travail, 18 JLMB 857, 857-65 (2018) (Belg.).
  29. As in the Italian case, it emerged that nonresponses and absences did not result in disciplinary sanctions. Other factors taken into account were the autonomous organisation as regards time and space, the absence of exclusivity clauses and noncompete agreements. See Cour d’appel [CA] [regional court of appeal] Paris, chambre 2, pôle 6 Nov. 9, 2017, pôle 6, n. 16/12875.
  30. Aslam v. Uber, [2016] (E.T)  2202551/2015 (U.K.).
  31. Uber v. Aslam, [2017] (E.A.T) UKEAT/0056/17/DA.
  32. Independent Workers’ Union of Great Britain v RooFoods Ltd, [2016] (C.A.C)  TUR1/985.
  33. Elena Gramano, Dalla Eterodirezione alla Eteroganizzazione e Ritorno. Un Commento alla Sentenza Foodora, Labor, Il Lavoro nel Diritto (Forthcoming 2018).
  34. Willem Pieter de Groen et al., supra note 1.
  35. Valentina Cagnin, Gig-economy e la Questione Qualificatoria dei Qig-workers: Uno Sguardo Oltre Confine, in Lavoro Autonomo e Capitalismo delle Piattaforme 31 (Adalberto Perulli  ed., 2018).
  36. Benjamin Sachs,  Enough with the Flexibility Trope, On Labor (May 15, 2018), https://onlabor.org/enough-with-the-flexibility-trope/.

 

Dispatch No. 12 – Italy – “Whistleblower protection in Italy: an employment law perspective on a controversial brand-new legislative intervention,” by Giovanni Gaudio*

September 2, 2018

Definitions and rationales

This dispatch will analyze the legal issues regarding whistleblowing in Italy, where the law has not extensively regulated it for years, until the legislative intervention by Law No. 179, 30 November 2017.

According to a widely accepted definition among scholars, whistleblowers are “organization members (including former members and job applicants) who disclose illegal, immoral, or illegitimate practices (including omissions) under the control of their employers, to persons or organizations who may be able to effect action.”[1] To the extent of this brief comment, it is useful to draw a few distinctions among different types of whistleblowing. Namely, the basic classification that will be used in this dispatch distinguishes various kinds of whistleblowing depending on the nature of the employer, i.e. private versus public employers, and the recipients of the reporting, i.e. internal versus external whistleblowing.

As a general remark about the scope of this brief dispatch, it will only cover the regulation applicable to private employers, although the abovementioned Law has provided a brand new legal framework on this matter for both public and private employers. Moreover, it will focus only on, among organization members, employee whistleblowers.

I. The Traditional Absence of any Whistleblowing Regulation in Italy and the Role Played by Case Law in Protecting Whistleblowers

The main reason why many legislators, first in Anglo-Celtic countries, started to introduce specific regulations in this respect has traditionally been in order to offer protection to the whistleblower against retaliation by the employer, i.e. dismissal, demotion or any other change in employment conditions that may be detrimental for who blew the whistle. This has become a hot topic for employment lawyers, since it is critical to understand the legal implications with regard to safeguarding the position of the whistleblowers within the organization of the employer.

While the very first regulations regarding whistleblowing were introduced in the United States,[2] this legislative model has traditionally remained largely foreign to European countries, with the sole exception of the United Kingdom.[3]

This has also been true in Italy, where there was a lack of specific legislation until very recently. The causes of this legislative inertia can be attributable to both Italians’ cultural background and Italian employment laws. On the one hand, the poor attention paid to whistleblowing can be ascribed to sociological reasons, due to the fact that in Italy “there is a widespread feeling . . . of collusion and code of silence, that leads to consider the whistleblower a spy, an informer, reporting exclusively for its personal interest.”[4] On the other hand, when drawing a comparison between Italy and the United States, there has not traditionally been a legal need to protect employees from an at-will dismissal in Italy, as it would be traditionally possible under U.S. law, because whistleblowers are already safeguarded by existing employment laws.

In this respect, Italian case law has traditionally deemed that the protection of whistleblowers against retaliation falls within the scope of the right to criticize others, which is a specification of the freedom of expression generally safeguarded by both Article 21 of the Italian Constitution and Article 1 of the Italian Workers’ Statute. Consequently, if an employer dismisses an employee because he/she blew the whistle, this will be considered a retaliatory action taken by the employer, who shall be condemned to reinstate the relevant employee.[5] In these cases, the burden of proof lies solely on the employee.

However, the right to criticize others must be balanced with the employee’s duty of loyalty and confidentiality provided for by Article 2105 of the Italian Civil Code. Accordingly, the whistleblowing shall be considered as a protected form of freedom of expression provided that the relevant information is true, its communication has been measured, and the content of the information is of an interest worthy of protection. Otherwise, the employee breaches the duty of loyalty and, as such, will be exposed to well-grounded disciplinary sanctions; in the most serious cases, this may result in dismissal. Thus, Italian case law uses a sort of proportionality analysis in weighing the whistleblower’s right to report against conflicting interests.

As a result, it was argued that a legislative intervention to protect whistleblowers against retaliation was not needed because Italian law already provided for appropriate remedies in this respect.[6] On the contrary, a specific legislation would have been appropriate in order to regulate other critical issues not covered by Italian employment laws, such as the safeguard of the whistleblower’s anonymity or confidentiality, and the protection of the right of defense of the alleged author of the misconduct.[7]

In lack of any specific legal provisions, these issues, as well as the implementation of institutional internal channels to report the wrongdoings, have been left to the unilateral decision of employers, above all Anglo-Celtic multinational companies who have transplanted their codes of conduct and/or internal policies in Italy.[8]

II. Legislative Intervention in the Private Sector

With the exclusion of certain sectoral legislative provisions aimed at banks, financial institutions, and antimoney laundering that transposed EU Directives in recent years, there has been a lack of ad-hoc intervention in the private sector until recently.

However, this legislative inertia has not hindered private employers from unilaterally providing for systems to facilitate voluntary internal reporting and encourage it within broader strategies of corporate social responsibility. These systems have often been implemented by Italian employers within the scope of Legislative Decree No. 231, 8 June 2001, which regulates the administrative liability of corporate entities resulting from the commission of certain crimes. In order to avoid being held responsible before the criminal Courts, the relevant companies may establish appropriate organizational models and set up a supervisory body known as the Organismo di Vigilanza. Although these provisions did not expressly provide protection for neither the whistleblower nor the alleged author of the misconduct, many employers started to introduce internal ad-hoc procedures, allowing employees to report wrongdoings to the Organismo di Vigilanza or to other bodies or individuals in charge, de facto partially filling the normative gap. These procedures are aimed at guaranteeing the effectiveness of the organizational models so that companies may decrease the likelihood of being held responsible for the commission of crimes within their organizations.

Within this broader context, Law No. 179, 30 November 2017 has recently amended Article 6 of Legislative Decree 8 June 2001, No. 231.

As a preliminary remark, it should be noted that this system is not a mandatory generalized one, as the legislator has introduced it within the organizational models, which are by definition optional legal tools.

This piece of legislation generally provides for institutional systems of internal whistleblowing, since the organizational models shall introduce channels through which the employee can report wrongdoings. However, the only types of misconduct that fall within the scope of this provision are the ones that are relevant pursuant to Legislative Decree 8 June 2001, No. 231, i.e. specific crimes hereby enumerated and violations of the organizational models. As for the internal channels, at least one of them has to be implemented through IT systems and they must guarantee the confidentiality of the identity of the discloser. No external channels are expressly provided, although the law specifies that, if a discriminatory measure is adopted against the whistleblower, the latter and the trade unions can report such fact to the labor inspectorate. In addition, the discloser cannot be the subject of any direct or indirect retaliatory measure connected to the content of the whistleblowing, which will be considered as null and void. Moreover, the customary allocation of the burden of proof has been reversed, as it is the employer who must demonstrate that any discriminatory or retaliatory action was not grounded on the content of the whistleblowing. Lastly, the organizational models must provide for disciplinary sanctions against both those who do not respect the anti-retaliation protections for the whistleblower and those, who intentionally or by serious negligence, make unfounded reports.

Moreover, the same Law provides for certain revisions to the criteria to balance between the right to criticize others and the duty of loyalty and confidentiality. In particular, the interest worthy of protection of the information revealed prevails over the duty of loyalty and confidentiality when the information is disclosed by the whistleblower using the channels provided by the abovementioned Law.

III. Points of transnational interest and final remarks

Law No. 179, 30 November 2017 is the most important attempt of the Italian legislator to deal with the phenomenon of whistleblowing and tries to regulate it with the primary goal of guaranteeing the protection of the informant.

As a preliminary comment, it should be pointed out that the law does not provide for a generally applicable protection of the informers for two important reasons. First, it only applies to those private employers that implement the organizational models pursuant to Legislative Decree 8 June 2001, No. 231, which are not mandatory legal tools. Second, the definition of wrongdoings is particularly narrow, as it is limited to certain crimes and/or the violations of the relevant organizational models. As a result, in all other cases, the protection of the whistleblower is still left to the general principles developed by the case law highlighted above.

From a policy perspective, the intention of the legislator was to implement a culture of legality in the workplace in a country where, for cultural reasons, a whistleblower is often seen as a spy. In this respect, transplanting this legal tool in Italy is a step in the right direction, also considering that blowing the whistle was almost an unknown option for Italian employees. Therefore, the mere fact that the law expressly introduces antiretaliation protections may reverse this social perspective, encouraging individuals in the workplace to start reporting wrongdoings and changing organizational cultures by persuading employees that reporting may have a positive impact on their organization and society as a whole.

In addition, the legislative intervention is also legally significant to the extent that it institutionalizes ex ante specific channels and procedures to report misconduct, which must be implemented with  view to guarantee confidentiality in relation to the identity of the whistleblower. In fact, it has often been pointed out that this kind of provision may be effective in incentivizing employees to speak up when they uncover illegitimate practices within the workplace.[9]

Nevertheless, the same conclusion cannot be reached from a technical standpoint. First, the law specifies that the discloser cannot be the subject of any retaliatory measure connected to the content of the whistleblowing, thus transplanting in Italy a rule that has been central in other jurisdictions like the United States. However, this legislative intervention seems to be an example of poor comparison. In particular, this point was already undisputed in the Italian case law outlined above and, as a result, this provision does not seem to add anything to the existing legal framework.[10]

Similar conclusions can be reached with reference to the change in the customary allocation of the burden of proof, according to which it is the employer that must demonstrate that any discriminatory or retaliatory action was not grounded on the content of the whistleblowing. Although this straightforward provision is quite common in common law countries,[11] it could be argued that a more balanced wording may have avoided possible unintended consequences in Italy. On the one hand, this provision seems futile with reference to measures taken by the employer, such as dismissals and transfers, whose grounds are to be proven by the employer in any case. On the other hand, this provision is not in line with what it is generally provided by the law with reference to burden of proof in cases of discrimination. In such cases, the customary allocation is reversed only where the employee can at least offer some indications that the alleged discrimination took place. Without this technical addition, the current provision can lead to controversial consequences where, in absence of any retaliation, the whistleblower can claim so only to obtain some undeserved advantages from the employer where the latter cannot prove the opposite.

In addition, several doubts can be raised with reference to the need for revising the criteria used by case law in order to balance, on the one hand, the right to criticize others and the duty of loyalty and confidentiality, on the other. The law now provides that the sole explicit limitation to the right to criticize others is the interest wrothy of protection of the information revealed. Such wording demonstrates a clear preference for the interests of the whistleblower and of the public in general over the interests of the employer and the protection of the reputation of the alleged author of the wrongdoing. In doing so, it may be argued that the existing position of the case law on this point seemed more balanced, because it operated a more comprehensive proportionality analysis.

This last remark sheds light on another issue, namely the fact that the law is relatively silent when it comes to the protection of the reputation and the right of defense of the alleged author of the misconduct. The lack of any substantial provision in this respect is even more significant in Italy, where, for cultural reasons, anti-retaliation whistleblowing laws may be wrongly perceived as being an incitement to report wrongdoings for personal interests and, especially where reports can be made with a strong guarantee of the confidentiality on whistleblower’s identity, leaves the law vulnerable to abuse.

*Giovanni Gaudio is a Ph.D. Candidate in Legal Studies—Business & Social Law at Bocconi University. 

Notes

  1. Marcia P. Miceli et al., Outsider ‘Whistleblowers’: Conceptualizing and Distinguishing ‘Bell-ringing’ Behavior, in International Handbook on Whistleblowing Research 71 (A.J. Brown et al. eds., 2014).
  2. David Lewis et al., The Key to Protection: Civil and Employment Law Remedies, in International Handbook on Whistleblowing Research 350, 352-59 (A.J. Brown et al. eds., 2014).
  3. Roberto Lattanzi, Prime Riflessioni sul c.d. Whistleblowing: Un Modello da Replicare “ad Occhi Chiusi”?, Rivista Italiana di Diritto del Lavoro 335, 338 (2010).
  4. Mapping Journalism: Whistleblowing Protection, Centre for Media Pluralism and Media Freedom - Robert Schuman Centre for Advanced Studies - European University Institute (2014), http://journalism.cmpf.eui.eu/maps/whistleblowing.
  5. Cass., 17 January 2017, n. 996 (It.).
  6. Lattanzi, supra note 3, at 347.
  7. Id. at 349.
  8. Id. at 340.
  9. Björn Fasterling, Whistleblower Protection: A Comparative Law Perspective, International Handbook on Whistleblowing Research 331, 339-45 (A.J. Brown et al. eds., 2014).
  10. Fasterling, supra note 9, at 346.
  11. Lewis, supra note 2, at 374.

 

 

Dispatch No. 11 – United Kingdom – "Winners and losers in the 2018 UK university faculty strike (with some comparisons to U.S. law)," by Carol Daugherty Rasnic*

August 8, 2018

Management has no divine rights.
Walter Reuther, President of United Auto Workers, 1946-1970

In January 2018, the British university group (Universities United Kingdom, UUK) and the pension manager (Universities Superannuation Scheme, USS) announced that the faculty and staff defined benefit pension program (DB) for faculty and staff would be converted to a defined contribution one (DC).

University and College Union (UCU) voted on January 22, 2018 for fourteen days of strikes staggered according to university. This four-week period of work stoppages by sixty-four universities that began on February 22, 2018 was the longest in British higher education history.

UCU’s estimated effect on a typical lecturer was £200,000 (current exchange rate is £1 to U.S. $1.32) in retirement,[1] or as much as £10,000 per year.[2] UCU disputed UUK’s claim of a £5 billion deficit,[3] countering that between 1997 and 2009, when assets were high, UUK made no contributions.[4]

I. The Duty to Bargain

Unlike labor-management law in the United States, there is no duty to bargain during a labor dispute under UK law. The comprehensive U.S. statute, the Taft-Hartley Act, requires both parties to bargain in good faith over issues concerning wages, hours, and other conditions of employment.[5]

To the contrary, the governing UK statute, the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA)[6] simply establishes procedures for recognition of a union.[7] There is no corresponding duty to negotiate toward arriving at a collective bargaining agreement. Collective bargaining rights are considerably more indirect under UK law than in its U.S. counterpart. A provision in TULRA provides immunity from liability for workers engaged in lawful collective activity,[8] but there is no express positive right.

UK workers’ rights in this regard are derived more from international treaties. For example, the European Convention on Human Rights (ECHR) protects both the right to strike and to bargain collectively.[9]

Regarding the right to strike, many European countries include this as a fundamental right in their constitutions.[10] Any such right in the United States is derivative from statutory law.[11] The United Kingdom has no written constitution and no domestic law other than that instigated by international law that grants the right to strike. Nonetheless, the United Kingdom is a signatory to International Labour Organization (ILO) Convention No. 87, which has language similar to the U.S. statute, that is, the right to associate and to engage in activities for mutual benefit.[12] Additionally, the United Kingdom is a member state of the European Convention on Human Rights (and among the ten founding members of the Council of Europe, of which the ECHR is a body),[13] which includes the right to bargain collectively.[14] Whether the right to strike is incorporated into the Article 11 freedom of association is a question that the European Court of Human Rights has not addressed. Moreover, until Brexit (the departure of the United Kingdom from the European Union) becomes official,[15] the United Kingdom is still bound by similar provisions in EU law.[16]

The Taft-Hartley Act applies only to private sector employment, excluding railroads and airlines, whereas, the struck UK universities were public institutions. U.S. public universities are state institutions governed by fifty different sets of laws. Only eleven states permit public sector strikes.[17]

II. USS’ Unilateral Change in Structure of the Pension Plan: Breach of Contract?

Generally, U.S. employment contracts include pension provisions, whether in collective bargaining agreements or in individual contracts, so that these agreements might make a plan unilaterally unalterable. Any unilateral change would likely constitute a breach of the contract.

The British universities pension plan is not part of the collective bargaining agreement, but it is structured through a series of documents adopted by USS and no breach of contractual obligation has been claimed, presumably because there is no such contractual clause in the union agreement. One could argue that a contractual obligation is implied or, in the alternative, that the promissory estoppel theory might be used because of reliance on the pension structure by each faculty member upon acceptance of their job.

III. Legality of Deductions from Strikers’ Salaries

U.S. law views this strictly on a contractual basis, so strikers are not compensated for hours not worked. Moreover, the U.S. Supreme Court has held that economic strikers can lawfully be permanently replaced.[18] An employer that might terminate workers implicitly might also eliminate pay for work not performed.

The answer under British law is more complicated. Pension law expert Ewan McGaughey, Professor of Law at King’s College London, reasons that pay reductions during this strike violate established law. In Liverpool City Council v. Irwin,[19] the House of Lords permitted nonperformance by one party to a contract in the event of breach by the other. Because of the landlord’s failure to maintain common premises, tenants were within their rights not to pay rent when due. Thus, the nonbreaching party (faculty in the instant case), but not the breaching party (universities), could refuse to perform.

Moreover, even if pay reduction during a strike were regarded as legal, McGaughey posits that the amounts deducted were excessive. In Hartley v. King Edward VI College,[20] the House of Lords held the employer’s reduction of 1/260 of total salary, based upon total days worked annually, to be excessive. The Hartley court held that only 1/365 was lawful (based upon total days in the calendar year),[21] and the universities were deducting considerably more.[22]

IV. Universities’ Obligation to Refund Students’ Tuition

No student fees were charged by British or continental European universities until the 1990s. The UK’s initial tuition charge was through a 1998 law[23] that authorized fees up to £1,000 per year. These amounts were incrementally increased to the 2017-2018 academic year maximum fees of £9,250 (exchange rate for 1 Euro is U.S. $1.3),[24] high by European standards. For example, some countries (Austria and Denmark) do not currently charge student fees, the amount in France ranges only from €200-650 per year, and in Germany, €100-250.[25]

This should be a contractual issue. Students pay for taught hours, and if those hours are not being taught, the universities’ consideration fails. Nonetheless, most universities staunchly refused to refund any part of tuition payments to students. Because university officials blamed the strike on faculty and staff, most confirmed that there would be “alternative learning materials and supervisory support.”[26] The simplistic rebuttal would be that students had been promised classroom contact hours, not “alternative . . . materials . . . and supervisory support.”

Minister of Education Sam Gyimah publicly stated that fees should be returned to students. An exception was King’s College London that had announced it would reimburse students.[27]

Several students had demanded repayment, and a student petition at the University of Liverpool demanded payment to each student of £1,078.16, the fractional amount of total tuition allotted to the fourteen days of strike.[28] Some predict a class action seeking reimbursements.

Thomas Hale, a writer for Financial Times Alpha, mentioned an unusual feature in this strike. Striking faculty were not being paid during the strike, but students’ tuition was retained. This resulted in the struck institutions’ actually being financially benefitted from the labor dispute.[29]

V. Penalization of “Scabs” Who Work Despite Majority Approval of a Strike

The union-to-union member relationship is also contractual in U.S. law. The Labor Management Reporting and Disclosure Act of 1959 (commonly referred as the Landrum-Griffin Act)[30] imposes union reporting requirements and implements many safeguards to members against union abuse.

At the same time, the statute supports members’ duty to pay dues in a timely fashion and to comply with internal union rules. Generally, a union member is required to strike upon a majority vote to strike, and if a majority votes not to strike, to refrain from striking. For example, the Communication Workers of America Constitution, while requiring a majority vote for a strike,[31] provides that a member who does not participate might be disciplined (generally by payment of a penalty).[32] International Order of Machinists also provides similar punitive measures in such cases.[33]

To the contrary, UK statutory law prohibits any such punishments. In Britain, a union member is free to decide whether he will strike, despite a majority vote by his union. Legislation strictly forbids any punitive measure taken against him as a consequence.[34]

VI. Tentative Settlement and Suspension of Strikes

On March 5, 2018, the Advisory, Conciliation and Arbitration Services (ACAS) began mediation sessions with UUK and UCU.[35] After six days, that body drafted a proposal in which UUK would permit independent assessors to study the claimed deficit and defer until 2020 any action changing the DB to a DC structure. Additionally, contributions to the fund from both sides would be increased, and faculty would agree to reschedule teaching any classes missed because of the strike.[36] UCU members rejected this proposal on March 13, 2018.[37]

The next series of strikes scheduled were to begin on April 16, 2018, while ACAS and representatives from UUC and UCU continued to meet. On April 4, 2018, a second proposal was presented and voting on this version would end at 2 pm on April 13, 2018.[38] The DC plan would be withdrawn by UUK, and faculty would not reschedule classes. A jointly appointed panel of experts would evaluate the funds to determine the extent of a deficit, if any. Results of that body’s determination would be factored into further negotiations that will, it is hoped, resolve all issues.[39] Significantly, if rejected, exams would be canceled.

A record 63.5% voted, with a 64% margin approving this offer.[40] Faculty had been tenacious, and the linchpin issue—the DB-to-DC plan—had been resolved in their favor. Because the original vote to strike provided for additional work stoppages until resolution of all contentious matters, the “settlement” is a provisional one.

VII. Economic and Business Model Concerns

There have been criticisms in recent years, both in the United States[41] and in the United Kingdom bemoaning the corporatization of universities over achievement and retention of academic excellence. Des Freedman, Professor of Media and Communications at Goldsmiths, University of London, is in this camp. He criticizes the “bloated nature of a higher education system that gobbles up tuition” so that it might continue to support infrastructure and increasing salaries for vice-chancellors (the counterpart to a U.S. university’s President), while being persistently parsimonious in compensating faculty.[42]

This view has much merit. The Times (London) covered what Lord Adonis, former Labour minister of Education, called the “greed” of “some grossly overpaid” vice-chancellors, referencing Dame Glynis Breakwell, Vice-Chancellor of Bath who was paid $451,000 (including pension contributions).[43] The average package for UK vice-chancellors was £268,103.[44] Michael Shattuck, Visiting Professor at UCL, credits this to the morphing of institutions of higher education into business model, with boards replete with persons from industry and finance and relatively few true academics.[45]

A comparison with faculty salaries is instructive. The average full professor’s salary is £61,203 per year. The highest average earnings were those at Queens University Belfast at £88,268. Perhaps surprisingly, the lowest were at Oxford (£28,448) and Cambridge (£25,358), usually regarded as the United Kingdom’s stellar universities.[46] The majority of faculty are ranked lower than professor status. The United States university’s counterpart to Associate Professor average pay was £51,679, and for Assistant Professor, £42,104.[47]

VIII.    Final Comment

U.S. labor law scholars would likely advise that (1) the United Kingdom add mandatory bargaining during a labor dispute to its statute; (2) faculty insist that pension provisions be included in the next collective bargaining agreement; and (3) students file an action seeking tuition reimbursements on a breach of contract basis.

Whether the suspended strike will come to a timely demise depends upon the success of current ACAS negotiations. For now, the conclusion of the labor dispute that has so disrupted higher education in Britain is a classic waiting game.

*Carol Daugherty Rasnic is Professor Emeritus of Labor and Business Law, Virginia Commonwealth University, and Adjunct Professor, Regent University School of Law

 

Notes

  1. Sally Weale, UK universities face disruption as staff back industrial action, The Guardian (Jan. 22, 2018), https://www.theguardian.com/education/2018/jan/22/uk-universities-face-disruption-staff-back-industrial-action.
  2. Sally Hunt, Strike action on this scale has never been seen before on British university campuses, The Telegraph (Feb. 22, 2018), https://www.telegraph.co.uk/education/2018/02/22/strike-action-scale-has-never-seen-british-university-campuses/.
  3. Weale, supra note 1
  4. Ewan McGaughey, Pension strike: university staff are getting a ‘Die Quickly’ pension plan. It won’t work, London School of Economics Politics and Policy blogs (Mar. 6, 2018). blogs.lse.ac.uk/politicsandpolicy/pension-strike-explainer
  5. The Labor-Management Relations Act, 29 U.S.C. §§ 141-197, §§ 8(a)(5), 8(b)(3), and 8(d) (1947).
  6. Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA).
  7. TULRA Schedule A1.
  8. Id. at § 219.
  9. Eur. Convention on Human Rights [Convention for the Prot. of Human Rights and Fundamental Freedoms] (4 November 1950, entered into force 3 September 1953) ETS 5 (ECHR) art. 11.
  10. See, e.g., Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBI. I, art. 9 (Ger.).
  11. Sec. 7 of the Wagner Act, 29 U.S.C. §§ 11-159 (1935), to which the Taft-Hartley Amendments were added in 1947, vests workers with the right to associate and to engage in concerted activities for mutual aid and protection, inferring a right to strike.
  12. The General Conference of the International Labour Organisation, 31st Sess., San Francisco, U.S., June 17, 1948, Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ILC.31/VII, arts. 3, 8, & 10 at p. 87.
  13. Convention on the Protection of Human Rights and Fundamental Freedoms (4 November 1950, entered into force 3 September 1953) ETS 5 (ECHR). See art. 11 for freedom of association.
  14. Id. Article 11. The 1998 UK Human Rights Act c.42 Schedule 1 incorporates the ECHR into domestic law, so those rights might be enforced in domestic courts.
  15. The announced date is March 29, 2019. See James Blitz, Alex Barker, and George Parke, Brexit timeline: key dates in UK’s divorce with EU, Financial Times (June 22, 2018), https://www.ft.com/content/64e7f218-4ad4-11e7-919a-1e14ce4af89b.
  16. Interestingly, Article 12 of the Charter of Fundamental Rights of the European Union, 2007/C 303/01 includes the “right to freedom of peaceful association and freedom of association . . . in . . . trade union . . . matters,” but The Treaty of the Functioning of the European Union (TFEU) art. 153(5) excludes the right to strike from areas of competence of EU legislation.
  17. See Kirsten Bass, Overview: How Different States Respond to Public Sector Labor Unrest, On Labor (Mar. 11, 2014), https://onlabor.org/overview-how-different-states-respond-to-public-sector-labor-unrest/.
  18. NLRB v. Mackay Radio and Telegraph, 304 U.S. 333 (1938).
  19. Liverpool City Council v. Irwin, [31 March 1976] UKHL 1.
  20. Hartley v. King Edward VI College, [2017] UKSC 39.
  21. Ewan McGaughey, Can universities cut staff pay for the strike as they please?, “No way”, says the law. London School of Economics blog site (Mar. 17, 2018), http://blogs.lse.ac.uk/politicsandpolicy/staff-pay-pensions-strike/, or, https://.printfriendly.com/p/g/jp2fe4.
  22. Richard Adams, Universities threaten to punish striking staff over cancelled lectures, The Guardian (Mar. 2, 2018), https://www.theguardian.com/education/2018/mar/02/uk-universities-threaten-punish-striking-staff-cancelled-lectures.
  23. Higher Education Act 1998, amended yearly.
  24. House of Commons Library, Briefing paper No. 917, 19 Feb. 2018.
  25. See Tuition Fees at Universities in Europe in 2018—Overview and Comparison, Studyportals (Jan. 8, 2018), https://www.mastersportal.com/articles/405/tuition-fees-at-universities-in-europe-in-2018-overview-and-comparison.html.
  26. Thomas Hale, The Strange Economics of the University Strikes, Financial times Alphaville (Feb. 22, 2018), https://ftalphaville.ft.com/2018/02/22/2198956/the-strange-economics-of-the-university-strikes/.
  27. Eleanor Busy, University Strikes: Students Set to Receive ‘Direct Compensation’ Over Lectures Missed Due to Action, Minister Says, Independent (Feb. 28, 2018), https://www.independent.co.uk/news/education/education-news/university-strikes-compensation-lecturers-students-sam-gyimah-direct-minister-latest-a8232746.html.
  28. Hale, supra note 26.
  29. Id.
  30. 29 U.S.C. §§ 402-531 (1959).
  31. Commc’n Workers of Am. [CWA] Const. art. XVIII, § 6.
  32. Id. at art. XIX §1(f).
  33. Electronic message from William H. Haller, Esquire, Associate General Counsel of IAM (May 21, 2018).
  34. The Advisory, Conciliation, and Arbitration Services (ACAS) is the UK governmental body charged with assisting in the resolution of labor disputes. Employment Act 1988 sec 3-5 (Part I).
  35. Employment Protection Act, 1975, repealed and replaced by Trade Union Labor Relations Act, 1992.
  36. Sean Coughlin, Deal Offered in University Pensions Row, BBC News (Mar. 13, 2018), http://www.bbc.com/news/education-433880857.
  37. Katie Tarrant & Daniel Ruben, Strikes Set to continue during exam season as UCU rejects deal, The Boar [student newspaper, University of Warwick] (Mar. 15, 2018) at 3.
  38. Ballot opens over latest proposals in university pensions dispute, University and College Union (Apr. 4, 2018), https://www.ucu.org.uk/article/9431/Ballot-opens-over-latest-proposals-in-university-pensions-dispute?list=1676.
  39. Rosemary Bennett, Lecturers end strike in time for finals, The Times, Apr. 14, 2018, at 2, col. 2-4.
  40. UCU members vote in record numbers to accept proposals in pensions dispute, University and College Union (Apr. 13, 2018), https://www.ucu.org.uk/article/9439/UCU-members-vote-in-record-numbers-to-accept-proposals-in-pensions-dispute.
  41. See, e.g., Noam Chomsky, The Death of American Universities [an edited version of his remarks to the Adjunct Faculty Association of the United Steelworkers, Pittsburgh, Penn., Oct. 10, 2014]. Jacobin (Mar. 3, 2014). https://www.jacobinmag.com/2014/03/the-death-of-american-universities/.
  42. Des Freedman, Universities Ending the Strike is not a Climbdown – The Fight Goes On, The Guardian (Apr. 16, 2017), https://www.theguardian.com/commentisfree/2018/apr/16/university-pensions-strikes-union-campaign.
  43. Jack Grove, The Times Higher Education v-c survey 2018, The Times (Feb.22, 2018), https://www.timeshighereducation.com/features/times-higher-education-v-c-pay-survey-2018. A link in this article includes a compilation of the salaries (basic and including pension contributions) of the vice-chancellors in every UK university.)
  44. Id.
  45. Id.
  46. Professor Salaries in the United Kingdom. Indeed [a job search site], https://www.indeed.co.uk/salaries/Professor-Salaries.
  47. Id.

 

 Dispatch No. 10 – Belgium – "Marginal part-time in Europe: 2018’s expansion of flexi-jobs in Belgium," by Mathias Wouters* and Pieter Pecinovsky*

July 11, 2018

While in some common law countries the concept of “daily” or “casual” employment is clearly established in statutory and case law, this is far from being the case in continental European countries.[1] Nonetheless, as Valerio De Stefano observed,[2] working arrangements that allow employers to scale their workforce by determining unilaterally the working hours of workers, such as on-call and zero-hour work, and thus resemble the common law idea of casual employment, are spreading in Europe. Often, these arrangements have been introduced to combat undeclared work by affording high amounts of flexibility to employers.

In Belgium, a flexible arrangement that does not, however, go as far as allowing on-call work and also functions as a policy instrument against undeclared work has been introduced. In fact, one of the compensatory measures introduced by the Belgian legislature in 2015 to compensate for the introduction of the so-called “white cash register,” i.e. a measure to prevent undeclared work in the “hospitality sector” (hotels, restaurants and bars), was to adopt a new employment status called travailleur exerçant un flexi-job. The popularity of this status is predominantly driven by the favorable fiscal and para-fiscal treatment—i.e. social security contributions—hence the compensatory nature of this scheme. With regard to the implications for labor law, we first briefly describe the main conditions that must be met for a worker to be engaged as a “flexi-jobber” and the social protection given to these workers. The second part first relays the concerns of the National Labour Council and Council of State, to consequently indicate why the Constitutional Court did not annul the statute. The third and final part describes the legislature’s recent multidimensional expansion of the statute and why this is a significant development.

The loi portant des dispositions diverses en matière sociale of 16 November 2015 constitutes the main legal basis for flexi-jobs. As mentioned above, article 2 initially limited its use to employers belonging to the joint committee for the hospitality sector or to temporary work agencies supplying workers to user firms in the hospitality sector. Besides this sectoral limitation, there are also restrictions linked to the persons that can be actually employed in flexi-jobs. These criteria ratione personae provide that only employees who already are employed for four fifths of the time, as compared to a full-time job in the respective industry, by one or more employers different to the flexi-employer are eligible to engage in a flexi-job.[3]

The legal framework for an employee who is eligible to work as a flexi-jobber necessitates a framework agreement to first be concluded between the flexi-jobber and flexi-employer with mandatory information. This framework agreement aims to avoid the creation of on-call work. Despite this intention, as Sarah De Groof points out, it is unclear how these mandatory particulars will prevent this factual outcome.[4] Especially since a prospective flexi-jobber can conclude multiple framework agreements for a definite or indefinite term with several employers wanting to offer them flexi-employment. Nevertheless, only once this framework agreement has been drafted, can a legally valid contrat de travail flexi-job be agreed upon between the parties of the framework agreement and only this actual employment contract, concluded for a definite term or well-defined work, contains an actual duty for the flexi-jobber to perform the work.

Most importantly with regard to social protection, flexi-jobbers accrue social rights despite the lower amount of social security contributions owed. Furthermore, the general loi relative aux contrats de travail in principle applies to the contrat de travail flexi-job. As such, for example, pursuant to the Belgian implementation of Council Directive 1999/77/EC on fixed-term work, the flexi-employer will have to prove that the use of these successive fixed-term employment contracts is justified based on the nature of the job or other legitimate reasons. Whereas this is probably justifiable in relation to the hospitality sector because of seasonal and holiday related fluctuations in demand, the same is not necessarily true for different sectors. The law itself also creates the notions flexisalaire and flexipécule de vacances. This “flexi-wage” consists of an indexed hourly minimum wage of 8.82 euro. Additionally a “flexi holiday pay” is paid together with the wage by multiplying the wage with 767%.

Even though the current government remains convinced that it struck a fair balance between flexibility and social protection, several legal and political concerns have been raised. On a policy level, it is important to note that the representative trade unions represented in the National Labour Council[5] formulated a negative advice. Multiple reasons were cited for this rejection, but the most important policy considerations were that since the status was intended to compensate for the impact of antifraud measures, and these “white cash registers” did not seem to get adequately implemented, the flexi-job scheme would ultimately rather serve to legitimate illegal employment and while withholding government revenue due to the corresponding beneficial (para-)fiscal contributions due. In addition, the scheme pursues both flexibility and low labor costs, thereby threatening permanent jobs while advancing a precarious form of employment. Besides, according to the trade unions, the government also did not respect their right to collective bargaining since the social partners were left in the dark during the legislative process.

By way of introduction to the legal objections, it is only appropriate to first convey the remarks made by the Council of State’s Legislation Section back in 2015. A major question mark posed by the Council was whether the flexi-job status was in compliance with the constitutional principle of equality. In that regard the first remark concerned the sectoral limitation of the status to employers belonging to the hospitality sector, especially since not all companies considered a hotel, restaurant, or bar necessarily belong to this particular joint committee. A second remark related to the ratio of 4/5th of fulltime employment as a condition for eligibility. Interestingly, the Council noted that this amounts to what it called “imposed solidarity among employers”, meaning that despite the nonexistent fiscal and lower social security contributions benefitting the flexi-employer, the flexi-jobber nevertheless accrues social rights and the payment of the corresponding social benefits is therefore at least in part dependent on the social contributions paid by the employers who contribute to the condition of 4/5th full employment. Despite the explanatory memorandum clarifying that the status is mainly justified because of the labor-intensive nature of these activities and high labor costs, the imminent implementation of the “white cash registers,” and the need to thus lower labor costs and provide for a flexible but legal alternative, the Council nevertheless issued strong reservations about the legality in light of the principle of equality.

The Constitutional Court, however, concluded in a judgment of 28 September 2017[6] that the flexi-jobbers were not unequally treated in comparison to standard employees in the hospitality sector. In particular, two conclusions in the judgment stand out. The first relates to Belgium’s article 23 of the Constitution which imposes a “stand-still obligation” to preserve the existing level of fair working conditions and remuneration, social security and collective bargaining unless reasons of public interest justify otherwise. In that regard, the Court states that the legislative measure cannot reasonably be considered a significant deterioration of that level because of the provided guarantees. The main consideration leading up to that conclusion seems to be that flexi-jobs do not substitute “normal” employment contracts and this characteristic seems to primarily prevent it from violating the stand-still obligation.

The second conclusion of the Court is that all differences between flexi-jobbers and normal employees in the sector are objectively and reasonably justified. The trade unions who lodged the appeal, had pointed out in particular the difference in employment conditions, holiday pay schemes, publication and control of the work schedules, wage definitions, social contribution and benefit mechanisms and the possibility to negotiate wage payments using a framework agreement. An important first consideration in order to reach this decision was that the legislator has broad discretionary powers to decide the category of workers and employers eligible to adopt a new form of employment contracts. The role of the Court is limited to assessing whether the different treatment of the beneficiaries is reasonably justified and does not disproportionally affect the rights of the affected employees and employers. Looking at some of the more contested elements of the law, the Court notes that for example the 4/5th eligibility condition is justified, due to the goal of the legislator to make sure that flexi-jobs would not substitute permanent employment, therefore only allowing employees who already enjoy “quasi-permanent” employment to become flexi-jobbers. The fact that the legislator diluted the requirement to 4/5th does not contradict this objective but arises from the socioeconomic increase in quasi-fulltime employment.[7]

Besides this favorable judgment, the government released impact assessments of the flexi-job status indicating that the growth of permanent employment in the hospitality sector picked up pace, thereby implying that flexi-jobs surely have not negatively impacted the growth of traditional employment in the sector. Detractors however contend that this growth of standard employment in the sector is largely dependent on the overall improved economic situation and thus does not prove that flexi-jobs do not substitute permanent employment. In any case by September 2017 there were over 28.000 flexi-jobbers working in 7300 businesses.

Following the positive evaluation of flexi-jobs and its success in the hospitality sector, in the summer of 2017 the government (urged on by the Flemish liberal party) agreed to pursue the expansion of the flexi-job status both in sectoral terms as well as ratione personae. On 1 January 2018 the Loi Programme of 25 December 2017 expanded the flexi-jobs-system to the retail industry. This includes the sectors of small businesses like bakeries, butcher shops, hairdressers, beauty parlors, catering services, etc. But the new law also expanded the system to department stores and supermarkets. This is remarkable since these last categories are usually big employers, although many smaller supermarkets are franchised undertakings with ‘independent’ employers (in which case the use of undeclared work is usually more prevalent). The system also became possible for agency workers who are sent to work in one of the included sectors.

Next to this rather massive sectoral expansion, the Loi Programme of 25 December 2017 also made flexi-jobs possible for retired persons in order for them to be able to raise their net income (supplementing their pension). Pensioners naturally do not have to comply with the condition that they must be employed at least 4/5th. Already in January 2018 this expansion has proven to be popular with 1200 retired flexi-jobbers. This amount is expected to increase rapidly seen the formidable available workforce of Belgian pensioners. Lastly the Loi Programme made sure that young teachers who work on a contractual basis (instead of the standard fixed appointment) could do flexi-jobs even during the summer break when they are in factual state of unemployment.

The flexible nature of this scheme can be interesting from a comparative perspective. The system of flexi-jobs started as a sort of compensatory measure for employers in the hospitality sector because of the introduction of “white cash registers” to combat undeclared work and fiscal fraud. This initial intention can be questioned taking into account the recent expansion of the system to the retail sector. In fact, flexi-jobs are now looking more and more like a half-hearted attempt of certain political parties in the ruling majority to make flexible Belgian labor law. On the one hand it creates fiscal and working time opportunities for employers and employees, but on the other hand it may threaten standard and full-time jobs. However, the strict conditions to be fulfilled to enter a flexi-job make this form of work not entirely comparable to the far more flexible systems of zero-hours contracts or on-call work (e.g. in the Netherlands and the UK), which are still disputed and quantitatively trivial in Belgium. Yet, a possible further expansion of the system to other sectors or persons and a softening of the conditions (especially the 4/5th rule) in the future might turn the initially rather stringent flexi-jobs-system into a gateway to make flexible and to deconstruct the Belgian social security system and labor law regulation. This, of course, is what the social partners have warned of in the National Labour Council. In any case the Government emphasizes the current success of the system. It will have to be seen if the system can maintain a healthy balance between allowing workers to earn additional income on the side (and combatting social fraud), and its potentially disruptive effect on standard forms of employment.

Mathias Wouters and Pieter Pecinovsky are PhD Researchers at KU Leuven 

Notes

  1. In Belgium, most notably Patrick Humblet rejects the concept, stating that “[s]uch on-call contracts testify to a 19th-century view on the employee; he/she is relegated to a wage slave who turns up by order of the boss.” Patrick Humblet, Apologie van het recht op uitbuiting Een provocatie, (Te) hoge werkdruk: psychosociaal risico of economische dwangmatigheid? De limieten van het welzijnsrecjt 17, 27 (2015).
  2. Valerio De Stefano, Casual Work Beyond Casual Work in the EU: The Underground Casualisation of the European Workforce – and What To Do About It, 7 Eur. Lab. L.J. 421 (2016).
  3. Whether an employee fulfils this threshold is judged in reference quarter T-3, meaning that in order to perform a flexi-job from January until March 2018, the employee in question must have worked 4/5th of a fulltime job for one or more employers combined in the reference quarter from April until June 2017. This eligibility condition has to be complied with for each consecutive quarter. Several additional measures were also taken to prevent abusive use of the beneficial (para-)fiscal scheme.
  4. Sarah De Groof, Flexi-jobs in de horeca, 1 Arbeidsrecht J. 10, 11 (2016).
  5. [4] An institution meant to bring social partners together to reach national (or sectoral) collective bargaining agreements and to give the most authoritative opinions on legislative proposals. “Together with the Central Economic Council, the National Labour Council is traditionally called ‘the House of the Belgian social Partners.’” About Us, Nationale Arbeidsraad (Aug., 2016), www.cnt-nar.be/DOC-DIVERS/About-us.pdf.
  6. Cour Constitutionnelle [CC][Constitutional Court] decision no 106/2017, Sep. 28, 2017.
  7. Another contended part of the eligibility condition was that the 4/5th ratio was only to be complied with in reference quarter T-3. This means that the flexi-jobber does not have to be employed for 4/5th in reference quarter T-2, T-1 or T in order to work as a flexi-jobber in reference quarter T. This element was deemed justified by the Court because the official figures of actual employment in the social security database need to be sufficiently stable to efficiently verify the ratio.

 

 

Dispatch No. 9 – Italy – “The new legal status of independent contractors in the Italian legal system,”
by Elena Gramano*

July 3, 2018

Rapid technological developments, new ways of offering services in the market through websites, digital platforms, and online providers, fragmentation of the employer’s role into groups or nets of companies that share decisions and processes, often outside formal relationships of control or of capital sharing, the mechanization of working activities, and the increased level of workers’ skills required by the labor market all seem to have created a crisis in the traditional legal parameters of the definition of work, challenging the dogmatic categories of subordinate and self-employed workers.

The problem of the distinction between subordination and self-employment in working relationships between increasingly disintegrated companies and their workers is certainly not new. Legal scholars and the courts have for a long time been addressing this issue, which concerns relationships that it is difficult to describe in terms of the archetypal employee who is subject to the precise direction and overall control of a unique and distinctly identifiable employer.

After years of debate, the Italian legislator decided for the very first time to protect, enhance, and support genuine self-employment in all its forms and dimensions, thus recognizing the strategic value that it has progressively assumed in the Italian economic system.

Law No. 81/2017, known as the “Self-employment Statute,” entered into force in the Italian legal system on June 6 2017, and introduced what has been defined as a “Statute” of rights and protections for self-employed workers.[1] Far from mimicking on a smaller scale the typical rights of subordinate employees, it enhances and protects the specific characteristics of the autonomy of organization and management of independent contractors, to support all forms of work that do not fall within the rules on employment law.

Traditionally, a self-employed worker has been considered as an economic subject capable of negotiating independently the contractual conditions of her activity, without the need for a heteronomous intervention by the legislator. For decades, this assumption has justified the complete absence of a legislative plan in this area.

Labor market developments have shown that this hypothesis is no longer true or, at least, that it is not always and not necessarily true.

The adoption of the Self-employment Statute marks an important break with the labor law that developed in the last century. Today, for the first time, self-employed workers are joining a community governed by legal regulations designed and built to meet their specific needs. The legislator chose to create a set of provisions containing rights and protections exclusively for self-employed workers, to establish for the first time a common legal identity for them.

On the one hand, some provisions recall the protection already provided for employees; on the other, some focus on protecting the social and contractual position of these workers, to correct the functioning of the market where market freedom ends up harming the worker, even if she is self-employed. In a very brief summary, the characteristic features at the base of this recent intervention in Law No. 81/2017 can be identified as follows: a) the protection of an independent contractor against unfair contractual terms (unilateral changes to the conditions of the contract, unilateral termination without notice, excessive payment terms); b) protection against delays in payment of compensation and the recognition of intellectual property rights for self-employed workers; c) the provision of social protections during the working relationship with the principal, similar to some of the protections so far only granted to employees; and d) protection in the labor market, with a series of measures to promote the chances of independent contractors finding clients and occasions of work.[2]

The Italian legal system does not have a definition of self-employment.

At the beginning of Title III of Book V of the Civil Code, Article 2222 defines a contract for services (“contratto d’opera”) as a contract under which an independent contractor “performs work or services in exchange for remuneration, mainly through her labor and in the absence of a relationship of subordination vis-a-vis the principal.”[3]

Far from providing a separate definition of self-employed workers, the Code limits itself to illustrating that work performed without subordination is autonomous. The meaning of the provision thus reflects the concept of “subordinate employee” described in Article 2094 of the Civil Code, which specifies that whoever undertakes to collaborate in an enterprise in exchange for remuneration, providing her intellectual or manual work at the dependence and under the direction of an entrepreneur, is subordinate.[4]

The scope of application of the Self-employment Statute is established through the explicit reference to the cited Article 2222 of the Italian Civil Code[5] and the explicit exclusion of two categories of subjects: on the one hand, employees and, on the other, entrepreneurs (even small ones, as defined by Article 2083 of the Italian Civil Code) (Article 1).[6]

It is important to underline that the legislator has not created any new third category or subspecies of existing categories: the law applies to “genuinely” self-employed workers, providing rules that reflect the full independence of their work.

In particular, the Statute articulates the protection afforded to self-employed workers in three main sets of rules.

The Statute recognizes that, unlike subordinate employees, self-employed workers must continuously go into the market to offer their services, which are mainly personal and self-organized. However, the law also recognizes that a self-employed person may be in a position of contractual weakness with respect to other subjects and may, therefore, encounter difficulties in negotiating good economic conditions in exchange for the work she provides.

Therefore, the first step taken by the legislator concerns the protection of the self-employed person during the negotiation and execution of the contract with the client.

First, the law guarantees the employee’s claims so that she can be protected in the event of late payment or non-payment. For this reason, it establishes that the provisions of Legislative Decree No. 231/2002 are also fully applicable to commercial transactions between self-employed persons and undertakings, between two self-employed persons, or between self-employed persons and public administrations, subject to the application of more favorable provisions (Article 2).[7]

The application of Legislative Decree No. 231/2002, which implemented European Directive 2000/35/EC on combating late payment in commercial transactions,[8] means that self-employed workers are entitled to payment of default interest, unless the debtor proves that the payment of the price was delayed because it was impossible for the service to be performed as the result of a cause not attributable to the debtor. Interest commences from the date established in the contract or, failing that, from the date set by law (Article 4, Legislative Decree No. 231/2002).[9]

The parties may, as part of their own contractual freedom, set a longer period for payment than the legal period, provided that the agreement is made in writing (otherwise it is null). Article 3, Law No. 81/2017 specifies, however, that terms under which the client is entitled to pay the worker more than 60 days after the payment note has been sent are considered unfair ex lege.[10]

The worker is also entitled to compensation for the costs incurred for the recovery of sums not paid in good time, subject to proof of greater damage if the debtor cannot prove that the delay is not her fault.

Finally, an agreement on the date of payment, or on the consequences of late payment, is null and void if, having regard to good commercial practice, the nature of the services covered by the contract, the condition of the parties and the business relations between them, as well as any other circumstances, it is grossly unfair and acts to the detriment of the creditor.

In particular, an agreement which, with no objective justification, has as its main object the provision of the debtor with additional liquidity at the worker’s expense, or an agreement whereby a contractor or a main subcontractor imposes on its suppliers or subcontractors unjustifiably longer payment terms than the payment periods granted to it, is considered to be grossly unfair.

The Self-employment Statute becomes applicable at the stage of negotiations on the contractual terms and conditions to be applied between the client and the self-employed worker, and establishes that a term under which the client may unilaterally modify the content of the contract or may unilaterally withdraw from the contract without notice (if the contract provides for continuous work) shall be regarded as an abuse under the law.

In the event of unfair terms and therefore—as has been said—void clauses, an independent contractor is also entitled to compensation for damages. It is not clear whether the list of unfair terms and, therefore, terms that render the contract null and void should be considered as exhaustive or whether it can be extended by judicial interpretation.

The last paragraph of Article 3 of the Statute provides for the application of Article 2, par. 9, of Law No. 192/1998, on the abuse of economic dependence.[11] 

Parts of Italian legal doctrine, together with some rather isolated jurisprudence, strongly supported the idea of specific protection for self-employed workers who are in a position of economic dependence on their major client. This proposal has been systematically rejected by the legislator because economic dependence is a criterion that attaches importance to an aspect (the economic situation of one of the parties) that is unrelated to the cause of the contract and unrelated to the subjective positions—obligations and rights—generated by the contract.

This approach has been preserved by the regulatory intervention of 2017, which, on the contrary, excluded the need for a contract to meet this particular criterion from the outset, extending the new discipline to the entire area of self-employment.

However, by its reference to Article 2, par. 9, Law No. 192/1998, the new law specifies that when a situation of economic dependence does occur, the abuse of this position is prohibited. More specifically, a condition of economic dependence occurs where an undertaking is capable of causing an excessive imbalance in its business relations with a self-employed person. It is also assessed by taking into account the real possibility of the worker finding satisfactory alternatives on the market.

The abuse of a position of economic dependence may also consist of a refusal to sell or purchase, the imposition of unjustifiably burdensome or discriminatory contractual conditions, or the arbitrary termination of existing business relationships.

An agreement that leads to economic dependency is null.

Finally, Article 4 of the Statute[12] protects the worker’s position with regard to the rights to use for economic purposes original inventions and contributions made in the performance of the contract, by stating that these rights belong to the independent contractor, unless the inventive activity is envisaged as the object of the contract and the contractor is therefore economically compensated for it. The new legislation provides for the application of Law No. 633/1941 and the so-called Industrial Property Code.[13] It should be noted that, by contrast, an employer is the owner of the economic rights in the inventions of her employees, where the inventions have been made in the performance of the employment contract.

As mentioned above, the Statute for the very first time establishes certain specific social protections for independent contractors.

Self-employed women are entitled to maternity allowance for the two months preceding the date of birth and for the following three months, irrespective of whether they actually abstain from work (Article 13).[14] Therefore, while women who are employed as subordinate employees must cease to work during this period, self-employed women are given the freedom to choose whether to work or to suspend their activity, as the allowance is paid in either case.

Moreover, the pregnancy, illness, or injury of a self-employed worker who works continuously on behalf of a client does not lead to the termination of the contract, the performance of which, at the worker’s request, may be suspended, without entitlement to compensation, for a period not exceeding 150 days per year (Article 14).[15] However, the client is entitled to withdraw from the contract if she has no interest in its continuation.

Moreover, in the event of maternity, it is possible that a self-employed female worker, with the prior consent of the client, can be replaced by another trusted worker who meets the necessary professional requirements, and there may also be job-sharing between the replaced worker and her substitute (Article 14, par. 2).[16]

Finally, self-employed workers are entitled to parental leave of up to six months for both parents during the child’s first three years. The allowance is equal to 30% of the income from work relative to the contribution paid and is due only if the worker has made at least three months’ worth of contributions (Article 8, par. 2).[17]

Lastly, Law No. 81/2017[18] provides for a series of tools, made available by public institutions but also with the help of private subjects, which favor both orientation in the labor market and access to professional opportunities.

In particular, the law establishes that public employment centers and specifically authorized bodies must carry out intermediary activities so that there is a branch office dedicated explicitly to self-employed workers in each office that is open to the public (Article 10).[19]

The purpose of this advice desk is to collect applications and offers from workers, to provide relevant information to professionals and businesses who request it, and to provide information on procedures for starting up self-employment activities, on access to public procurement, and on possible credit opportunities.

Public authorities themselves are called upon to promote the participation of self-employed workers when they act as contracting authorities in public contracts for the provision of services or in calls for tenders for personal consultancy or research assignments, in particular by facilitating their access to information on public tenders and their participation in award procedures (Article 12[20]).

*Elena Gramano, Ph.D., is a post-doctoral Research Fellow at Goethe University of Frankfurt, under the guidance of Professor Dr. Bernd Waas.

Notes

  1. Legge 22 maggio 2017, n. 81, G.U. June 13, 2017, n. 135 (It.).
  2. Id. at art. 3, 12, 14.
  3.  Article 2222 C.c.
  4.  Article 2094 C.c.
  5. Article 2222 C.c.
  6. Article 2083 C.c.
  7. D.Lgs. 9 ottobre 2002, n. 231, art. 2, G.U. Oct. 23, 2002, n. 249 (It.).
  8.  Council Directive 2000/35, 2000 O.J. (L. 200) (EC).
  9. D.Lgs. n. 231/2002, art 4.
  10. L. n. 81/2017, art 3.  
  11.  Id. (citing Legge 18 giugno 1998, n.192, G.U. Jun. 22, 1998, n.143, art. 2, ¶ 9 (It.).
  12.  Id. art. 4.
  13. Legge 22 aprile 1941, n.633, G.U. Jul. 16, 1941, n.166 (It.).
  14. L. n. 81/2017, art. 13.
  15. Id. art 14.
  16.  Id. ¶ 2.
  17. Id. art. 8, ¶ 2.
  18. L. n. 81/2017.
  19.  Id. art. 10.
  20. Id. art. 12.

 

DISPATCH No. 8, "Workers’ Privacy in the Employment Contract: Developments From Chile,"
by Sergio Gamonal C.[1] and César F. Rosado Marzán[2][3]

June 27, 2018

I. Facts and Context

Journalists, social critics, and legal commentators are discussing hot-button issues related to “video surveillance” and “cyber surveillance” of workers by their employers. Indeed, some of these critics argue that employer surveillance could lead to so-called cyber subordination threatening fundamental privacy rights and presenting challenges to labor and employment law (hereinafter referred to as “work law”).  Fortunately, courts are addressing these priva cy challenges.  In the Chilean Supreme Court’s recent opinion, Sindicato Interempresas N° 6 de Conductores y Trabajadores Flota Talagante v. Asociación Gremial de Empresarios de Taxibuses Flota Talagante[4] (“Talagante”) involving an employer, a bus company, that monitored its workers with video cameras, the Court reaffirmed its prior jurisprudence placing limits on employers’ surveillance activities.

The Court reached its opinion in Talagante after aggrieved workers, represented by their labor union, filed a special constitutional review action called “recurso de protección,” which generally alleges that a party violated an individual’s fundamental rights.[5] Parties may file a recurso de protección when they believe that the government or a private individual has violated their fundamental rights and, as such, the plaintiff requires immediate equitable assistance from the Court. Because the recurso de protección is an emergency procedure, its purpose is solely to stay the infringing actions of the party violating fundamental rights and restore the aggrieved individual(s) to the status quo. Recursos de protección require that the allegedly infringed right is “undoubted”—certain and clearly recognized. If the court doubts the existence of the right, then the party alleging the violation must file an ordinary suit. Moreover, parties who file a recurso de protección cannot claim damages. If they claim damages, they must do so through an ordinary proceeding. Parties must file the recurso de protección in an appeals court and, if necessary, appeal that decision to the Supreme Court.

In this particular case, the president of the Interempresas No. 6 Talagante Fleet Workers’ Union (the “Union”), filed a recurso de protección in representation of all Union members against an intercity bus company called the Taxibuses Flota Talagante (hereinafter “Employer”).[6]

The Union alleged that the Employer installed surveillance cameras on the buses to watch the drivers.[7] While the Employer had previously installed two cameras for security purposes, it installed a third camera to record the drivers, as the video showed workers’ faces.[8] The Union alleged that such general surveillance was unrelated to safeguarding security in the buses and therefore violated workers’ fundamental rights.[9] The Court thus had to order the employer to desist video recording the workers.

The Employer challenged the Union’s allegations. It alleged that since August 2016 it had improved security in the buses by installing new cameras with better resolution.[10] In addition, according to the Employer, its employment contracts and its workplace safety manual provided for workplace video recordings.[11] It alleged that the third camera installed in all the buses captured a panoramic view of the door, the entrance area, the ticket box, the money collected by the driver, and seats located on the right side of the driver, showing the driver’s head only occasionally.[12] Therefore, the employer alleged that the camera’s purpose was to provide safety and security in the bus, not to observe the drivers in a general fashion.[13]

II. The Legal Issue and Relevant Law

The legal question before the Court was whether the employer could place surveillance cameras that directly recorded the worker, as the cameras did in this case.[14]

Chilean jurisprudence had already settled a very similar issue, holding that an employer could video record activities only for security reasons, but not to monitor the behavior of workers.[15]  Extant jurisprudence was built on constitutional principles: Article 19 N ° 4 of the Chilean Constitution expressly states that privacy is a fundamental right.[16] Moreover, article 5 of the Labor Code states that employers must exercise their authority only to the extent permitted by the Constitution, especially because the Constitution protects the privacy and honor of workers.[17] Moreover, article 154 of the Labor Code states that the employer can only exert control of workers in the least personal fashion to guarantee workers’ privacy.[18]

III. The Court’s Decision

The Court of Appeals of San Miguel decided the case in the first instance.[19] Given the legal precepts stated above, and reviewing the facts alleged, the Court determined that the employer was violating workers’ fundamental privacy rights by recording the workers, showing their faces, and recording audio.[20] The Court of Appeals recognized that, generally, cameras do not disturb privacy rights.[21] However, the aim of the video recording in this particular case, which focused on the workers’ faces, violated the privacy rights of the workers.[22] The Court ordered the employer to change its surveillance practices so that they fulfilled the declared security purposes while respecting the workers’ fundamental privacy rights.[23]

On March 20, 2017, the Supreme Court, in a 4-1 opinion, affirmed the Court of Appeals’ decision.[24]  A minority vote stated, without any explanation, that the Court should have denied the Union’s recurso de protección.[25]  As reported in the opinion:

The court reached this opinion with one contrary vote by Minister Egnem, who would have reversed the ruling below and, consequently, rejected the recurso de protección because the facts and law did not show that the plaintiffs had an undoubted right that required assistance and protection through this precautionary route of urgency.[26]

IV. Commentary

We fully agree with the majority vote of the Chilean Supreme Court.

First, it is well established in Chile that constitutionally enshrined, fundamental rights percolate into the contract of employment. These rights include protecting the physical and mental integrity of a person, his or her private and public life, the honor of the person and his or her family, the inviolability of all forms of private communication, freedom of conscience, the manifestation of all beliefs, including the free exercise of worship, the freedom to express opinions without censorship, nondiscrimination, and freedom of association.[27]

Second, human rights in the contract of employment are part of what Chile understands to be the “Citizenship in the Enterprise” (Ciudadanía de la Empresa). Citizenship of the Enterprise implies that the management’s authority, rulemaking capacity, and overall control of the workplace are limited.[28]

The idea of “Citizenship of the Enterprise” first stemmed from a 1969 opinion of the Directorate of Labor (“DT”), the administrative authority that enforces the Labor Code, which determined that the employer could not physically search employees before they exited the workplace after a day’s work.[29] The DT decided that such searches ran against workers’ dignity.[30] The DT has continued to argue that physical searches violate fundamental rights, such as those pertaining to the dignity of the person, the right to privacy, workers’ psychic integrity, and the inviolability of all forms of private communication. [31]

In 2001, the Chilean legislature amended the Labor Code with Law No. 19759, providing a new first paragraph for Article 5 that recognized constitutional guarantees in employment, including privacy rights and dignitary concerns.[32] In addition, the amendment requires that when employers implement measure to control workers, these measures must be germane to security concerns, and must be of general applicability in order to ensure protection of workers’ dignity.[33]

Citizenship of the Enterprise constitutes an evolution of both labor and constitutional law. At the outset, it was understood that the state, as the public authority, was exclusively bound to safeguard human rights. However, in the twentieth century, labor and constitutional law began to understand that private parties, namely employers, must also respect the human rights of subordinates. This legal relationship between private individuals has been denominated in Spain and in Latin America (following the German theory) as “horizontal effects” of fundamental rights.[34] Contemporary constitutional and labor jurisprudence thus understands that “any center of power” can violate human rights, not just the state or other public authority. Some scholars also speak of “diagonal efficacy “of fundamental rights in the contract of employment.[35]

The Supreme Court’s doctrine in this case has existed since at least 2003.[36] Then, the Court determined that the employer’s use of video cameras in the workplace is licit only for “technical” or safety reasons, and if the employer is not seeking to monitor workers generally.[37] It also supports prior administrative holdings of the DT. For example, the DT has established that an employer does not violate workers’ dignity if it installs a closed circuit television to avoid robberies.[38] Security cameras could survey the entrances and exits of offices, bathrooms, lockers, showers, dining halls, the union bulletin board, and work areas.[39] In other words, a camera necessary for security does not necessarily violate workers’ fundamental rights.[40]

In another administrative opinion, the DT noted two possible employer uses of cameras: (1) to watch workers generally, or (2) for “technical” needs associated with the production process or for security reasons.[41] The DT determined that general worker surveillance was illicit.[42] The second type, serving “technical” needs associated with the production process or for security reasons, was legal.[43] The DT recognized that legal surveillance—the second type of surveillance—may result in what otherwise could be deemed an illegal oversight of workers.[44] However, the DT determined that apparent illegal surveillance resulting from legitimate security concerns was merely an “accidental consequence” or a “side effect” of licit surveillance, and, hence, legal.[45]

In conclusion, we believe that the Supreme Court’s holding was correct. It followed prior Supreme Court opinions and administrative rulings pertaining to workers’ privacy rights. It also helps us to extend privacy concerns in other areas, such as “cyber surveillance.” Given developments in information technologies, it is possible for employers to monitor the behavior of subordinate workers by invasive means that threaten privacy rights. The Chilean Supreme Court’s recent opinion on video surveillance thus helps to protect other contemporary privacy concerns. Simply put, an employer should not be able to monitor employees through cyber means. It would need to prove security concerns, or aims towards safeguarding productivity to justify cyber surveillance.

We should note that one dissenting judge, of five, disagreed with the four-member majority. She insinuated, without making any explicit argument or providing any rationale, that the facts and law failed to show a violation of workers’ privacy rights, despite what appeared to be an overbroad filming of workers’ activities. She may have also insinuated that workers’ privacy rights were doubtful.[46] But workers privacy rights are not doubtful. Perhaps, the dissenting judge believed that the employer could dispose of workers’ fundamental rights and annul them in the workplace. It’s hard to give any weight to such innuendos, especially when not backed by reasoned statements.

Notes:

  1. Professor of Law, Universidad Adolfo Ibáñez
  2. Visiting Professor of Law, University of Iowa College of Law. Associate Professor of Law and Co-Director, Institute for Law and the Workplace, IIT Chicago-Kent College of Law.
  3. The authors are listed in alphabetical order. They thank Sarah Bahn for editorial assistance. The opinions here are solely the authors.’ Mistakes and omissions are the sole responsibility of the authors. Direct any inquiries to crosado@kentlaw.iit.edu.
  4. Corte Suprema de Justicia [C.S.J.] [Supreme Court], 20 marzo 2017, “Sindicato Interempresas N° 6 de Conductores y Trabajadores Flota Talagante c. Asociación Gremial de Empresarios de Taxibuses Flota Talagante,” Rol de la causa: 39-2017 (Chile).
  5. Id.
  6. Id.
  7. Id.
  8. Id.
  9. Id.
  10. Id.
  11. Id.
  12. Id.
  13. Id.
  14. Id.
  15. See Sergio Gamonal C., La “Cibervigilancia” dentro de la empresa: comentario a una sentencia de la Corte Suprema, Revista Laboral Chilena, June 2004, at 90, 90–94 (2004).
  16. Constitución Política de la República de Chile [C.P.] art. 19.
  17. Código del Trabajo [Cód. Trab.] [Labor Code] art. 5.
  18. Cód. Trab. art. 154.
  19. Corte de Apelaciones [C. Apel.] [Court of Appeals] 19 Diciembre 2016, “Sindicato Interempresas N° 6 de Conductores y Trabajadores Flota Talagante c. Asociación Gremial de Empresarios de Taxibuses Flota Talagante,” Rol de la causa: 3441-2016 (Chile).
  20. Id.
  21. Id.
  22. Id.
  23. Id.
  24. C.S.J., 20 marzo 2017, “Sindicato Interempresas N° 6 de Conductores y Trabajadores Flota Talagante.”
  25. Id.
  26. Id.   
  27. The original Spanish text states:
    Acordada con el voto en contra de la Ministra Sra. Egnem, quien estuvo por revocar el fallo en alzada y consecuencialmente, por rechazar el recurso de protección deducido en autos, teniendo únicamente presente para ella que los antecedentes no dan cuenta de un derecho indubitado que asista a los recurrentes y que requiera ser resguardado por esta vía cautelar de urgencia.
  28. See José Luis Ugarte Cataldo, Tutela de Derechos Fundamentales del Trabajador 33–39 (2009); Sergio Gamonal Contreras., El Procedimiento de Tutela de Derechos Laborales 21–23 (2007). 
  29. Antonio Baylos Grau, Derecho del Trabajo: Modelo para Armar 99 (1991).
  30. Dirección del Trabajo, Dictamen Nº 3965, (June 5, 1969).
  31. Id.
  32. See Sergio Gamonal Contreras, Ciudadanía en la Empresa: o los derechos fundamentales inespecíficos 26 (2004).
  33. Cód. Trab. art. 5.
  34. Id.
  35. See generally Stephen Gardbaum, The “Horizontal Effect” of Constitutional Rights, 102 Mich. L. Rev. 380, 391 (2002) (describing how Germany is recognized for its doctrine of “horizontal effects.).
  36. See generally Sergio Gamonal C., Cidadania na Empresa e Eficácia Diagonal dos Direitos Fundamentais (Jorge Alberto Araujo trans., 2011); Sergio Gamonal C., La Eficacia Diagonal u Oblicua y los Estándares de Conducta en el Derecho del Trabajo (2015) [hereinafter Gamonal C., Eficacia Diagonal].
  37. [36]. Corte Suprema de Justicia [C.S.J.] [Supreme Court], 12 mayo 2003, “Sindicato Nacional Interempresa de Trabajadores Metalúrgicos, Comunicaciones, Energía y Actividades Conexas c. Electroerosión JAPAX Chile S.A.,” Rol de la causa: 1575-03 (Chile). See Gamonal C., supra note 12, at 90.
  38. C.S.J., 12 mayo 2003, “Sindicato Nacional Interempresa de Trabajadores Metalúrgicos, Comunicaciones, Energía y Actividades Conexas,” [<publication abbreviation>] No. < > p. < >.
  39.  See Gamonal C., Eficacia Diagonal, supra note 32, at 93–94.
  40. Id.
  41. Ministerio del Trabajo y Previsión Social, Dictamen Nº 363, (January 25, 2002).
  42. Id.
  43. Id.
  44. Id.
  45. Id.
  46. Dirección del Trabajo, Dictamen Nº 363, (January 25, 2002).
  47. C.S.J., 20 marzo 2017, “Sindicato Interempresas N° 6 de Conductores y Trabajadores Flota Talagante.”

 

 DISPATCH No. 7, "The Peculiarities of Telework in Post-Soviet Space: Russia, Kazakhstan, Belorussia, and Ukraine," by Elena Sychenko

May 8, 2018

Abstract:

The main objective of this paper is to provide a critical overview of the new Russian and Kazakh legislation by comparing it with the norms of the European Framework Agreement and exploring the possible ways of protecting teleworkers’ rights in Belorussia and Ukraine in the lack of special provisions. The article will comprise of three parts: the first one will trace Russian experience, the second will analyze the Kazakh approach to distant work, and the third part will be dedicated to the relevant policies in Ukraine and Belorussia. In the concluding part the perspectives of further development in this sphere will be evaluated.

The Peculiarities of Telework in Post-Soviet Space: Russia, Kazakhstan, Belorussia, and Ukraine

The spread of telework has become a strong trend in a contemporary world since 1990s labor law scholars and national (as well supranational) governments and social partners sought to establish a due legal framework for the regulation of such a type of employment contract.  Much work has been done in this direction on the European level; the European Framework Agreement established the unique understanding of telework and fixed the minimum guarantees of distant workers’ rights. The adoption of this agreement lead to gradual changes of national approaches to this type of work and contributed significantly to the enhancement of national labor provisions that are fixed in the legislation or in the collective agreements. In the countries chosen for the present research, the situation is completely different. Trade unions do not play any important role in the elaboration of labor law provisions, and national legislation either has recently adopted certain norms on telework (as in Russia or Kazakhstan) or does not deal with this matter (as in Belorussia and Ukraine).

The main objective of this paper is to provide a critical overview of the new Russian and Kazakh legislation by comparing it with the norms of the European Framework Agreement and exploring the possible ways of protecting teleworkers’ rights in Belorussia and Ukraine in the lack of special provisions. The article will comprise of three parts: the first one will trace Russian experience, the second will analyze the Kazakh approach to distant work, and the third part will be dedicated to the relevant policies in Ukraine and Belorussia. In the concluding part I will evaluate the perspectives of further development in this sphere and estimate whether national legislation is likely to provide adequate and equal protection to teleworkers in future.

1. The Regulation of Telework in Russia

In 2013 Russian Labor Code was amended, introducing the new chapter on the peculiarities of regulations of labor of distant workers. Russian law thus preferred to refer to “distant workers” rather than to “teleworkers” or “remote workers.” These provisions were very long in coming as the need to adopt special provisions became apparent already in the beginning of the twenty-first century. In the absence of special provisions, parties of the employment contract had to refer to the special regulation of homework (Chapter 49 of the Labor Code),[1] which evidently did not correspond to the peculiarities of distant work or concluded civil law contracts, excluding the access of such “workers” to labor law guarantees. Thus, for about fifteen years the Russian market of distant work was “almost completely slipping out of the legal field and remained in the shadow.”[2]

New provisions introduced the possibility to conclude an employment agreement through the exchange of electronic letters and fixed the main peculiarities of such work, establishing the methods of communication between the employer and the distant worker. According to the recent report published by J'son & Partners Consulting experts, the number of employees working remotely in Russia in 2014 amounted to about 2.53 million people (about 4% of all workers) compared to 2.3 million in 2013. Experts predict that by 2020 this figure will rise up to 20%.[3] It becomes evident that the adequate regulation of distant work has gained crucial importance.

According to the Labor Code, the distant worker is an employee who concluded an employment contract on distant work, and is defined as a

[P]erformance of a labor function determined in the employment contract out of the location of the employer, its subsidiary, representative office, other detached structural unit (including those sitting in another territorial locality, out of a stationary workplace, territory or object, which lies directly or indirectly under the employer’s control provided that commonly shared informational and telecommunicational networks (including Internet) are used for this function performance and for the interaction between an employer and an employee on issues related to its performance communicate.[4]

The definition of the distant work made Russian labor law scholars argue that the remote work is losing many of the characteristics of an employment relationship and is getting closer to civil contract relations.[5] It was also criticized for the limitation of distant work by fixing as a main feature the use of commonly shared informational and telecommunicational networks, as such a provisions significantly narrow the circle of employees who may be involved in such work.[6]

The provisions of the introduced chapter provide a special “shortened” status of the distant worker, meaning that some of the most significant labor rights and guarantees are not applicable to them.

1.1 Dismissal of Distant Workers

In contrast with the majority of employees whose dismissal is governed by the provisions of Labor Code, which specify the permitted reasons for dismissal and the necessary procedure, employment contract with the distant worker might be dissolved in any case as stipulated by the contract.

Thus a normal worker might be dismissed at the will of his employer only in cases listed in article 81 of the Russian Labor Code. As such, Labor Code provides the possibility to discontinue the contract in cases of: 1) liquidation of the organization or termination of the activities of an individual entrepreneur; 2) redundancy or staff cuts at the organization, individual entrepreneur; 3) the employee's failure to meet the requirements associated with his position or job due to insufficient qualifications as confirmed by the results of an attestation; 4) change of the proprietor of the organization (with respect to the manager of the organization, his deputies and the chief accountant); 5) numerous failures by the employee to fulfill labor duties without justifiable reasons if he has been reprimanded; 6) a single severe violation by the employee of his labor duties: a) absenteeism, i.e. absence from the workplace without a good reason during the whole working day (shift) irrespective of the duration thereof, and also in the event of absence from the workplace without a good reason for more than four consecutive hours during the working day (shift); b) the appearance of the employee at the workplace (at his workplace or on the territory of the employer's organization or of the facility where the employee has to perform his labor function on the instructions of the employer) in the state of alcoholic, narcotic, or another intoxication; c) disclosure of the secret protected by the law (state, commercial, service and other) that became know to the employee as a result of his execution of labor duties, including the disclosure of the personal information of another employee; d) committing pilferage at the place of work (including petty pilferage) of others' property, embezzlement, wilful destruction or damage to property as determined by a court ruling that has entered into legal force or the decision of a judge, body, official empowered to hear administrative offences cases; e) the fact, established by a labor protection commission, of violation by the employee of the labor protection requirements if this resulted in severe consequences (industrial accident, disaster) or is known to have created a real hazard of such consequences; 7) committing of culpable actions by an employee directly handling money or valuables if these actions provide grounds to loose confidence in him on the part of the employer; 8) committing by an employee engaged in educational functions of an immoral deed that is incompatible with the given work; 9) adoption of an unjustifiable decision by the manager of the organization (branch, representation office), his deputies and the chief accountant that resulted in damage to property, its illegal use or other damage to the property of the organization; 10) a single severe violation by the manager of the organization (branch, representation office) or his deputies of their labor duties; 11) presentation of faked documents by the employee to an employer at the conclusion of the labor contract, etc.

This is not the complete list of the possible grounds for the dismissal which might complemented by other Federal law, however it is illustrative enough in order to understand that the dismissal of the normal worker (not a distant one) is a complicated matter. In certain cases the employer, having decided to dismiss the employee under this article has to pay the severance pay not less than the sum established by the Labour Code (in general in case of redundancy an employee might be entitled to receive from two to three average wages). Distant workers according to the provisions of the special chapter of the labour code might be easily excluded from the list of those who receive the severance payment as they might be dismissed on any ground, stipulated by the contract. We can easily imagine the situation where the employer foresees in the employment contract with the distant worker the possibility to dismiss him in case if his work would not be needed any more without the obligation to pay any severance payments. In these circumstances the employer does not have to respect the procedure of dismissals in redundancy, does not have to inform the distant worker two months in advance, and also will not be obliged to pay any compensations. Such an approach might lead in practice to the abuse of the employer’s right to stipulate the grounds of dismissals in the employment contract and, in the end, to the discrimination of distant workers. As in the similar circumstances of redundancy, they might be deprived from all statutory guarantees if they will be dismissed on the grounds stipulated by their employment contract.

It is interesting to note that at the present moment there is no relevant case law in this field, however the distant labor is frequently publicized as a type of employment contract that permits an employer to dismiss the employees much easier in comparison with the general procedure.[7] I suppose that this point is quite alarming and there is a need to ensure the equal treatment of distant workers in the field of dismissal. To the end, I suppose that it is necessary to include in the employment contract only such special grounds of dismissal which are linked with the special type of the work, with its remote character. This approach can be traced in the article 4 of the European Framework Agreement, which provides a possibility to fix specific complementary conditions of distant work in order to take into account the particularities of telework.

1.2 Occupational Health and Safety of Distant Workers

According to article 312.3 of the Labor Code, the employer’s duties in the field of occupational health and safety are cut in respect of distant workers. The general list of such duties might be found in the article 212 and comprises twenty three duties, while special norms on distant work provide only four duties from this list.  Thus the employer has the following duties:

  1. to investigate and register accidents at work and occupational diseases;
  2. to comply with the orders of officials exercising state control (supervision);
  3. to provide the employee with compulsory social insurance against industrial accidents and occupational diseases;
  4. to familiarize the employee with the requirements of labor protection when working     with the equipment and tools, recommended or provided by the employer.[8]

Evidently, the majority of the employers’ duties that were excluded from the list in respect of occupational safety of distant workers might be hardly performed in the conditions of remote work.  However it remains unclear why the legislator excluded the duty to elaborate and approve of rules and instructions in the area of labor protection for employees with account taken of the opinion of the elected body of the primary trade union organization or another body empowered by employees in the procedure established by Article 372 of the Labor Code for the adoption of local normative acts; or the duty to ensure the availability of a set of regulations containing the labor protection requirements in accordance with the specifics of its activity.

It is also hard to understand the logics of the legislator who excluded the employer’s obligation to inform employees of the conditions and protection of labor in work places, of the risk of an injury and the compensation for them, and means of individual protection as well as the obligation to provide necessary information to the relevant federal executive bodies exercising the functions of elaboration of state policy and normative legal regulation in respect of labor protection. The duty to take steps to prevent emergency situations and to preserve employees' life is not relevant in respect of distant workers as well. Practitioners note that provisions on occupational safety of distant workers should be adopted to the peculiarities of distant work, taking into account its remote location.[9]

These provisions of Russia law make us turn to European experience in order to see whether in European countries the approach to occupational safety of distant workers is different. Even before the approval of the European Framework Agreement on telework, national legislations on occupational safety and health of distant workers (or teleworkers) provided much broader obligations of the employer in this field than Russian provisions.

In Belgium, for example, the employer was obliged to take all necessary material safety measures for the workers against all demonstrable risks inherent to their labor. In Belgium, specific standards and regulations concerning the physical factors were to be found in the General regulations on labor protection (ARAB). It applied to all those who engage laborers according to an employment agreement and to all workers themselves, including the tele(home)workers. In the contract of ABB (insurance company), with the employee it was stipulated that the safety officer of the enterprise would check, case by case, the workrooms at home. A description of these rooms was made and put down in a report. [10]

In France, ergonomic layout was indispensable for the installation and organization of the work station as well as awareness of operating rules by users. The common tennis elbow-type musculoskeletal injury was particularly prone to occur in telework and it could be qualified as work-related injury, even though it had not yet been recognized as such.[11]

The Irish approach to the definition of employer’s obligations in the field of occupational safety of distant employees is particularly noteworthy. The adequacy of the work environment was monitored by the Health and Safety Authority Inspectors who visit work places to check compliance with the 1989 Act and the 1993 General Application Regulations. Equipment choice was covered by the Use of Work Equipment Directive 89/655/EEC. Part IV of the 1993 General Application Regulations implemented this Directive in Irish law. It stated that in selecting work equipment account should be taken of the specific working conditions, characteristics, and hazards in the place of work and any additional hazards posed by the use of such work equipment. The Regulations also put a duty on the employer to ensure that the equipment used by the employees is without risk to their safety and health or ensure measures are taken to minimize any such risk.[12]

According to article 8 of the European Framework Agreement on telework signed in 2002, EMPLOYER is responsible for the protection of the occupational health and safety of the teleworker and they must inform the teleworker of the company's policy on occupational health and safety, in particular requirements on visual display units. This agreement also stipulates the right of the employer to access the telework place, and the right of the teleworker to request inspection visits. 

The employer has to inform the teleworker of risks related to the work. This applies, in particular, to risks related to working with computer equipment. The teleworker is, in turn, responsible for correctly applying these safety policies.[13]

Even a very superficial comparison of European and Russian provisions on occupational health of distant workers demonstrates that Russian labor law treats distant workers as “second-class” employees, ensuring too much space for the employer’s discretion.

1.3 The Right of Distant Workers to Organize

The right of distant workers to organize is another problematic point of the Russian Labor Code. Russian collective labor law does not contain special provisions which might ensure distant workers’ rights to organize and to collective bargaining. General norms of the Labor Code on the election of the employees’ representatives for collective bargaining do not admit distant voting, thus distant workers are de facto excluded from the list of workers who might participate in these elections. At the same time, according to article 399 the requirements put forward by the employees’ representatives should be approved at the general meeting of employees and it is permitted to adopt the decision, having collected at least two-thirds of the workers' signatures in support of workers’ demands if it is impossible to hold a meeting (conference). I suppose that in respect of distant workers such an approach means the possibility to vote distantly by signing the document with the reinforced qualified electronic signatures used in the relations with the employer according to art. 312.1. However it is difficult to foresee the court’s opinion on this matter as there is no relevant jurisprudence up-to-date.

Legal clarity is needed in order to ensure collective rights of distant workers. The legislator should consider the peculiarities of distant work while establishing the conditions of elections of employees’ representatives in collective bargaining in order to overcome the factual isolation of such workers from other employees, to ensure their access to the process of collective bargaining, and to the information about employer’s activities.  

To effectively implement collective rights granted to distant workers, Russian legislators should amend the procedure of decision-making by workers, stipulating the possibility to vote to each worker independently from their factual location. Distant workers should be granted a possibility to participate at the meetings of workers through the electronic means of communication,[14]  to vote, and to sign resolutions using electronic signature.

Russian scholars note that de facto no special agreements were signed until today to promote interests and right of this category of employees. The same way none of collective labor disputes, strikes, or other types of collective actions were organized by teleworkers or in their interests.[15]

1.4 Employee’s privacy protection

The comparison of Russian approach with the European Framework Agreement reveals that new provisions lack clarity and precision in such aspects as data protection and right to privacy. The provisions of the chapter of the Labour Code establishing the peculiarities of employment relations with the distant worker remain silent about the right to data protection and the right to privacy. Therefore in the absence of special norms, general provisions should apply to such workers.    

According to the Chapter 14 of Labor Code, the scope of the use of the employees’ personal data is limited and might be collected by an employer upon the employee’s consent. Such information should be received directly from the employee, or, if it is received from other sources, the employee should express their consent. The employer has to ensure proper safety of the obtained personal data and to provide employees the possibility to access their personal data files and to correct inaccurate information.

Russian labor law does not contain special provisions on the employees’ right to privacy at work. Article 23 of the Russian Constitution as well as Article 63 of the Federal Law No. 126-FZ "On Communications" provides that a person has a right to privacy of correspondence, telephone conversations, mail, telegraph, and other communications transmitted via telecommunications and electronic networks, unless such right is limited by federal law. Under article 24 of the Constitution collection, storage, use, and dissemination of information about the private life of a person without their consent is prohibited.

These provisions are equally relevant for distant workers. However, Russian courts tend to interpret the notion of the private life in a narrow way if it concerns workplace privacy. Thus they admit as a proof of employees’ misbehavior the information obtained from the private letters and sent through the private mailbox while using the workplace computer. In such case the court did not inquire whether the employee was notified about the possibility of monitoring and whether he gave his consent.[16]  Therefore there is an evident need to ensure specific regulation of the protection of private correspondence and private calls in respect of all the workers. Distant workers are to a certain extent more vulnerable to the possible interference with their right to respect for private life, as it is impossible to draw a clear line separating the use of computer for work and for private life when the employee uses for work his own computer.

The brief research of the Russian approach to the regulation of distant work demonstrates that still there is much to be done in this sphere. There is need to ensure that distant workers are not treated less favorable than other workers and that they enjoy the same rights and guarantees, in particular in the field of occupational safety, workplace privacy, and collective rights.

2. The Regulation of Distant Work in Kazakhstan

2.1 General Assessment

The development of distant work in Kazakhstan is very interesting; this country was the first one among the chosen countries to adopt special provisions regulating telework. Relevant provisions were enacted in 2012 and were changed already in 2015 when the new Labor Code came to force.

The need to ensure due regulation of distant labor was emphasized by national labor law scholars.[17] Kazakh researchers pointed that the Transition to the accelerated industrial and innovative development carried out in present time requires development and implementation of new approaches to involve internal manpower reserves into the labor market to increase quality and economic activity of the manpower.[18]  

However the regulation of nonstandard employment in post-Soviet countries is a difficult task. During the Soviet time as a result of the formal domination of the overall equality idea, the concept of the nonstandard employment itself didn’t have a right to exist.[19] Employment law in these countries is traditionally rather “clumsy” and the process of adoption of the new provisions, which for decades have been successfully implemented in Europe, is very slow. 

The special regulation of distant work appeared in Kazakhstan in 2012, when the Labor Code was supplemented with the Chapter 23-1 “The peculiarities of labour regulation of employees engaged in distant work.” According to article 221-1 of the Labor Code adopted in 2007,[20] distant work was acknowledged to be a special form of work carried out outside the employer's location through the use of information and communication technologies. Further provisions stipulated the employer’s duty to provide necessary equipment and bear the cost of their installation and maintenance. In the case where an employee uses their own means of communication on a regular basis, the employer had a duty to pay the compensation that should have been established in the employment contract. The employer might also have a duty to reimburse other expenses associated with the performance of distant work such as the cost of electricity, water and so on if such a provision was fixed in the contract. The provisions of the Labor Code in 2007 left much space to the employer’s discretion in determining of the methods and frequency of working contacts with the employee, in the control of working hours, and in the field of occupational safety. All these matters, according to the provisions enacted in 2012, should have been regulated by the employment contract. Therefore the wording of these provisions excluded the application of statuary norms on employer’s duties to ensure employee’s occupational safety if the relevant employment contract (prepared in the majority of cases by the employer) provided that the employee himself should be responsible for safe conditions at work.  Such a legal decision undermined the fundamental rights of employee and almost equated him to a free civil law contractor.

The considered provisions of the Labor Code of 2007 were abolished when the new Labor Code was adopted in 2015. In this document the peculiarities of distant work are gathered in one article: article 138. New provisions have corrected the most significant shortcomings listed above. It is interesting to note that I have not found academic papers or any other signs of public discussion on the regulation of distant work by previous Labor Code. Articles dedicated to the development of the national labor law that were published in the relevant period just briefly pointed the need to adjust the regulations of the distant labor, although restrained from formulating any precise recommendations to the legislator.[21]

According to the new article 136 of Labor Code of Kazakhstan,  the employer’s discretion has been significantly narrowed. Since 2015 employer has to ensure occupational health of the distant worker without any exception. This approach, in contrast with the Russian norms regulating occupational safety of distant workers, provides the most essential guarantees to those who undertake telework and is much more in line with the European Framework Agreement on telework.

Kazakh legislation provides the general list of grounds for the dismissal of employees at the will of employer (article 53 of Labour Code 2015), which, in contrast with the Russian approach to the matter, cannot be complemented by other grounds in the employment contract concluded with distant workers. This decision of the legislator evidently contributes to the establishment of equal treatment of distant workers.

   Special provisions on distant work are very brief. Article 138 provides the following regulation:

  1. Distant work is a special form of the labour process outside of the employer's location carried out with the use of information and communication technologies.
  2. The employer provides the employee with the means of communication and bears the costs of their installation and maintenance. In a case where an employee uses his own means of communication on a regular basis, the employer pays the compensation, its sum, and the way of payment is established by the agreement with the worker.
    According to the agreement of the parties, distant worker can receive  reimbursement of other expenses associated with the performance of work from the employer (the cost of electricity, water, and other expenses).
  3. For the workers carrying out distant work, the fixed records of working hours is set, its peculiarities are defined in the employment contract.

2.2. Collective Rights of Distant Workers

The brevity of norms on the peculiarities of distant work makes us conclude that the Kazakh legislation does not provide special provisions on collective rights of such workers. The research of collective labor law in Kazakhstan demonstrated that the distant workers in this country face the same problems as Russian workers due to the absence of special approach to the realization of collective rights. The opportunity to vote distantly for the strike or for the initiating of collective bargaining is not provided by the Labour Code of Kazakhstan.

The positions of Kazakh distant workers are in fact much worse than that of the Russian workers as the recently introduced procedure of collective bargaining and collective dispute resolution as well as regulations of strikes are formulated in a way that significantly complicates the realization of these rights. According to the article 164 of the Labor Code:

The workers requirements concerning the application of the labour legislation of the Republic of Kazakhstan, the implementation or changes in the agreements, collective and (or) employment contracts, the employer’s acts between employees and the employer, the employers' association have to be formed and approved by the general meeting (conference) of employees.

General meeting of workers is considered competent if attended by at least two-thirds of the total number of employees of the organization.

The Conference is considered competent if it attended by at least two-thirds of delegates elected by the employees in accordance with the protocol decision.

The decision of the General meeting (conference) of employees is considered to be adopted if the requirements put forward by workers were supported by the votes of not less than two-thirds of the participants. If it is impossible to hold a meeting (conference) of employees the representative body of employees has the right to adopt its decision, having collected at least two-thirds of the workers' signatures in support of their demands.

Workers' representatives agree with the employer on the order of the meeting (conference) of employees, its location, time, number of participants in the meeting (conference).

These provisions eloquently demonstrate that the rights of distant workers in collective relations are almost neglected. The legislator stipulated the possibility to organize voting through the collection of signatures however, in contrast with the Russian legislation, it did not provide the use of qualified electronic signatures by the distant employee in the regulation of distant work. Therefore the way of distant worker’s participation in such voting remains unclear, in particular in the case when he does not use qualified electronic signatures in relations with the employer.

The need to gather two-thirds of workers of the enterprise (NB not even a branch office or independent department) for the adoption of decision is another problematic point. I suppose that these provisions in fact deprive distant workers from their collective rights. In particular, the need to agree with the employer on the order of the meeting (conference) of employees, its location, time, number of participants in the meeting (conference). Taking into account that the employer is rarely interested in collective bargaining there is a great risk that the employer will not agree to organize the collection of signatures when it is impossible to hold a meeting of employees. It is quite questionable if in this case employees have a right to organize such collection.  

These regulations were criticized by international bodies, as even in respect of normal workers they complicate the procedures of collective relations. The Human Rights Committee was concerned that the restrictive legal framework regulating strikes and the mandatory affiliation of trade unions to regional or sectorial federations under the 2014 Act on Trade Unions may adversely affect the right to freedom of association under the Covenant.[22]

The UN Special Rapporteur on the rights to freedom of peaceful assembly and association also raised concerns about the legal framework regulating strikes, which, in his opinion, is more focused on limiting strikes than on facilitating the exercise of the right to freedom of association.[23]

In 2015 and 2016, the International Labour Organization (ILO) at its annual conference strongly criticized Kazakhstan for its restrictions in the 2014 trade union law. In June 2015, the Committee on the Application of Standards, the highest-level decision-making body of the ILO, said that Kazakhstan should "amend the provisions of the Trade Union Law of 2014 consistent with the Convention." Kazakhstan has not amended the law. Kazakhstan's Justice Ministry has accused the confederation, which registered after significant delays in February 2016, of violating the trade union law by failing to confirm its status as a national union within six months.[24]

Therefore the protection of collective rights of distant workers in Kazakhstan might be guaranteed only after adoption of the amendments to the Labour Code in order to bring its provisions in compliance with the International Charter on Civil and Political rights and the ILO Conventions. The facilitation of procedures of collective bargaining and of collective dispute resolution in general would evidently increase the opportunities of distant workers to organize.

2.2 Privacy protection

As in Russia, Kazakh legislation does not provide special regulation of distant workers’ privacy. It is silent on the issue of employee surveillance.  According to the Constitution of Kazakhstan, everyone has the right to the inviolability of private life, personal or family secrets, and protection of honor and dignity. Under general norms, established by the Law Of The Republic Of Kazakhstan “On personal data and its protection” adopted on 21 May 2013 года No.Z4-V,[25] the use of the personal data should be limited and could be collected upon the consent on the person. According to article 11 of this Law, the owners and (or) operators, as well as third parties accessing personal information of limited access, should ensure its privacy by complying with the requirements to prevent its distribution without the consent of the person or his legal representative.

Persons who have become aware about the personal information of limited access during labor relations are obliged to ensure its confidentiality.

The general provisions of Kazakh legislation have the same shortcomings as the Russian ones—they are too general to provide efficient protection of privacy of employees, and of distant workers in particular. In Russia, in theory the lack of such provisions might be filled by reference to the interpretation of the European Convention on Human Rights by the European Court of Human Rights, which establishes certain rules on the right to privacy. This is impossible in case of Kazakhstan as this country is not a party to the Council of Europe. Therefore the need to ensure the due legal framework which will provide distant workers as well as other workers with the guarantees of privacy protection at work is more than actual.

3. Regulation of distant work in Belorussia and Ukraine

Belorussia and Ukraine will be considered within this one part of this dispatch as neither of them provides special regulation of distant work. However, digital progress goes on in these countries as well since there are many workers who fulfil distant work without being covered by Labour law and are treated as self-employed. Ukrainian and Belorussian labour scholars argue the need to provide special regulation for distant work and underline the importance of this type of labour in the remote regions and for the most disadvantaged groups of society, they also lament the lack of official statistics of those who work distantly.[26]

Belorussian and Ukrainian legislation inherited from Soviet Labour law the regulation of homework and in the lack of any provisions on distant work we might refer to special norm on homework as a possible legal basis.

Ukrainian Code of Labour laws does not contain any provisions on homework, and the regulation of this type of labour is based on the Soviet act "The regulation  of conditions of labour of homeworkers", approved by the USSR State Committee for Labour and Social Affairs and Secretariat of Trade Unions on 29.09.1981.[27] According to this document, adopted in the nondigital era, homeworkers are persons who have concluded an employment contract with the employer on the implementation of the work at home using materials and instruments provided by the employer or purchased at the expense of the employer. These regulations stipulate the list of those employees who have a preferential right to conclude the contract for homework. Evidently the realization of this right in distant work nowadays is impossible as it would mean the obligation of employer to hire at the first place those who are included in this list. Such an approach evidently undermines the freedom of employer to choose employees.

Almost the same regulation might be found in the articles 304-307 of Belorussian Labour Code,[28] which almost in the same wording defines the notion of homework and lists those workers who have a preferential right to conclude such an agreement. Belorussian labour code also stipulates that the regulation of overtime work, entitling employees to additional payments and guarantees, is not spread on  homeworkers. Thus this category of workers is deprived from the right to receive extra-payment for overtime work, and special restrictions of this type of work are not applicable to homeworkers. This regulation can be justified in respect of traditional manufacturing homework as the employer does not have an opportunity to control the working time of his employee. However, it cannot be justified if applied to distant work. The deprivation of distant worker of the right to receive extra-payment for overtime would amount to discrimination of such workers.

Ukrainian and Belorussian regulation of homework is applicable to manufacturing at home, employment relations in such circumstances do not, as a rule, include any communication between an employee and his employer. In distant work the contract is concluded to do intellectual work, the employer has to provide technical means for its realization, the results of such work are transmitted in digital form through internet and the possibility of communication with the employer is crucial for such work.

It is evident that the legal framework of homework is not suitable for the regulation of distant work as it does not correspond to its special character, it does not stipulate the way of communication between the employer and the employee, does not provide employers’ obligations in the field of occupational safety and employees’ privacy protection.

The project of the new Labour Code of Ukraine, unfortunately, does not contain norms on distant work. Article 51 of the project provides a possibility for the parties to employment contract to include a clause on the right of employee to fulfil his work from home, if the conditional there meet the requirements of occupational safety, fire safety and sanitation.[29]

According to the Presidential Directive of December 31, 2010 N 4 "On the development of entrepreneurship and stimulating business activity in Belarus"[30] the Ministry of Labour and Social Protection of the Republic of Belarus has to ensure the promotion of the use of flexible forms of employment. As distant work is one the flexible forms of employment there is a hope that the Belorussian Ministry of Labour and Social Protection will propose to regulate this type of work in Belorussia and will use European Framework Agreement on telework as a template.

4. Conclusions

The present research demonstrated that even though Russia and Kazakhstan have elaborated a legal framework for the regulation of telework, they have not attached enough attention to the issue of occupational health, privacy and collective rights of such workers. The legislators in Ukraine and Belorussia tend to ignore the wide use of telework in these countries and do not provide special regulation. The approach to this type of employment as to a type of homework is outdated is does not ensure the due protection of teleworkers.

Therefore the regulation of telework in all the chosen countries is rather problematic. I suppose that this trend might be explained by the reference to their common Soviet past, to the overprotective Soviet labour legislation and denial of collective rights. Labour law is deemed to provide the employer with much control over the performance of employment duties by an employee and, perhaps, much time is needed for “rooting” new forms of labour where this control is much lower (such as distant labour) within the labour law of these states.

In conclusion I would like to mention a curious finding of Simula Raghuram. This author researched the interconnection between the cultural Frames and the values affecting employment practices. She came to conclusion that in collectivistic cultures in which employees expect their employers to look after their needs, the use of new forms of labour, such as telework, may be viewed negatively.[31] This stance might be also used to explain the reluctance of the chosen states to create an effective legal framework for distant work regulation.

Elena Sychenko, PhD, Associate professor, Saint Petersburg State University, Russia
Contact: e.sychenko@mail.ru

 

Notes

  1. Anastasia Dulenkova, Derzhi distantsiyu [Keep the distance], Capital release №5533,Ros. Gaz., 157 (2011).
  2. 16 Strebkov Denis, Shevchuk Andrey & Spirina Marina, Razvitiye russkoyazychnogo rynka udalennoy raboty, 2009-2014 gg. (po rezul'tatam Perepisi frilanserov) [The development of the Russian-speaking telework market, 2009-2014 (According to the Census of freelancers)] 194 (VV Radayev ed., 2015), available athttps://www.hse.ru/pubs/share/direct/document/167025662.
  3. Irina Yuzbekova, Pyataya chast' rossiyan budet rabotat' udalenno k 2020 godu[One-fifth of Russians will work remotely by 2020], RBC (June 17, 2015), http://www.rbc.ru/technology_and_media/17/06/2015/5580515f9a7947e7bf4bfc99.
  4. Translation is cited from Elena Gerasimova, Tatiana Korshunova & Daria Chernyaeva, New Russian Legislation on Employment of Teleworkers: Comparative Assessment and Implications for Future Development. Report at the  International Conference ReMarkLab Final Conference: Regulating Markets and Labour (May 19, 2016).
  5. Nikita Lyutov, Rossiyskoye trudovoye zakonodatel'stvo i mezhdunarodnyye trudovyye standarty: sootvetstviye i perspek tivy sovershenstvovaniya: Nauchno-prakticheskoye posobiye [Russian labour legislation and international labour standards: conformity and prospects for improvement: Scientific and practical manual] 250 (2017); Nushtaykina Ksenia, Realizatsiya prava rabotnikov na sotsial'noye partnerstvo v usloviyakh distantsionnogo truda[Realization of workers' right to social partnership in conditions of distance work], 21 Vestnik Permskogo universiteta: Yuridicheskiye nauki [Bull. of Perm Univ.: Jurisprudence], no. 3 152-156 (2013).
  6. Orlovsky Yury et al., Kommentariy k Trudovomu kodeksu RF [Commentary to Russian Labour Code] 265 (Orlovsky Yuriy ed., 7th ed. 2015).
  7. See, for example, Sergey Vasilyev, Raskryty Sekrety Legkogo Uvol'neniya Distantsionnykh Rabotnikov[The Secrets of Easy Dismissal of Distant Workers are Disclosed], KLERK, (Feb. 19, 2016), www.klerk.ru/law/articles/439357/.
  8. Trudovoi Kodeks Rossiiskoi Federatsii [TK RF] [Labor Code] art. 212 (Russ.).
  9. Bikmetov R. I., Osobennosti obespecheniya trebovaniy okhrany truda distantsionnykh rabotnikov. Vozmozhnyye protivorechiya v obespechenii sotsial'noy zashchity distantsionnykh rabotnikov, postradavshikh v rezul'tate travmy na proizvodstve i profzabolevaniy[Peculiarities of ensuring occupational safety of remote workers. Possible contradictions in social protection of remote workers injured in the result of occupational accident or occupational disease], Trudovoye pravo v Rossii i za rubezhom, 2013, at 48-49.
  10. Pekka Huuhtanen, The Social Dimensions of Telework: The Health and Safety Issues for Teleworkers in the European Union, at 9, Eurofound (1997).
  11. Id. at 10.
  12. Id. at 11.
  13. Christian Welz and Felix Wolf, Telework in the European UnionDublin: European Foundation for the Improvement of Living and Working Conditions, at 17, Eurofound (Jan. 10, 2010).
  14. Nushtaykina Ksenia, Realizatsiya prava rabotnikov na sotsial'noye partnerstvo v usloviyakh distantsionnogo truda [Implementation of the rights of workers in the social partnership in a remote labour], 21 Bul. of Perm State U. Jur. 152-56 (2013).
  15. Gerasimova, Korshunova & Chernyaeva, supra note 4.
  16. Sergey Slesarev, Slezhka za sotrudnikami, ili Kogda sud priznayet videonablyudeniye v ofise i chteniye elektronnoy pochty sotrudnikov zakonnymi[Surveillance of staff, or when the court finds video surveillance in the office and reading e-mail employees legitimate], Legal information portal Garant.ru (Mar. 24, 2016), http://www.garant.ru/ia/opinion/author/slesarev/704454/#ixzz4TCRUmgK7.
  17. Bayzholova Raisa,  Povysheniye effektivnosti gosudarstvennogo regulirovaniya natsional'nogo rynka truda v usloviyakh globalizatsii [Improving the efficiency of the state of the national labour market regulation in the context of globalization] 10 Aktualnі Problemi Economyki 344, 347 (2012).
  18. Aybeniz Tariverdi Kizi Mamedova & Aigul Maidyrova, Economic and Legal Aspects of Labor Market Regulations in the Modern Kazakhstan, 14 Business: Theory and Practice 270 (2013).
  19. Id. at 272.
  20. Concerning the Introduction of Amendments and Additions in some legislative acts of the Republic of Kazakhstan on environmental issues. 491 V Law: Republic of Kazakhstan (8 Apr. 2016), http://online.zakon.kz/Document/?doc_id=30103567#pos=1;-263.
  21. Aybaniz Mammadov & Venus Balgabaeva, K Voprosu Ekonomiko-Pravovogo Regulirovaniya Rynka Truda V Sovremennom Kazakhstane[To The Question Of Economic And Legal Regulations Of The Labour Market In Modern Kazakhstan], 154 Aktual'ní Problemi Yekonomíki 184 (2014).
  22. Human Rights Comm., Concluding Observations on the Second Periodic Rep. of Kaz., U.N. Int’l Covenant on Civil and Political Rights, U.N. Doc. CCPR/C/KAZ/CO/2 (Aug. 9, 2016).
  23. Special Rapporteur on the rights of peaceful assembly and of association, Fourth Rep. on the Rights to Freedom of Peaceful Assembly and of Association, U.N. Human Rights Rights Council, U.N. Doc. A/HRC/29/25 (Apr. 28, 2015) (by Maina Kiai).
  24. Kazakhstan: Move to Shut Down Trade Unions, Human Rights Watch (Dec. 7, 2016), available athttp://www.refworld.org/docid/5847dc354.html.
  25. Law Of The Republic Of Kazakhstan “On personal data and its protection,” No. Z4-V (May 21, 2013), available in Russian athttp://online.zakon.kz/ (accessed 20 Dec. 2016).
  26. Elena Vanksvich & Olga Zaitseva, Nestandartnaya zanyatost: sushchnost, formy, masshtaby, regulirovaniye[Non-Standard Employment Essence, Forms, Size, and Regulation], Belr. Econ. J., no. 3, 2015 at 129; Tomashewskiy Kirill Leonidovich, Komp'yuterne Domashni Promysly (Telerobota) yak Odna z Hnuchkykh Form Zaynyatosti v XXI Stolitti [Computer Homework (telework) as One of the Flexible Forms of Employment in the Twenty-first Century], Labour Law in Russ. and Abroad, no. 3, 2011 at 32-36.
  27. Pro pohodzhennya materialiv Polozhennya pro umovy pratsi nadomnikiv, Zakony Ukrainy [Ukranian law database], http://www.uazakon.com/ (last visited Dec. 20, 2016).
  28. Belarus Labour Code art. 304-307 (Text No. 432 July 26, 1999), available at http://pravo.by/pravovaya-informatsiya/normativnye-dokumenty/kodeksy-respubliki-belarus//.
  29. Svechkareva Yaroslava,  Distantsionnaya rabota v Ukraine: voprosy pravovoy reglamentatsii[Distant work in Ukraine: issues of legal regulation], 80 Zhurnal Nauchnykh Publikatsiy Aspirantov i Doktorantov, 29-34 (2013), available at jurnal.org/articles/2013/uri9.html.
  30. On the Development of Entrepreneurship Initiative and Stimulation of Business Activity in the Republic of Belarus, Directive No. 44 (Dec. 31, 2010), available at http://president.gov.by/en/official_documents_en/view/directive-no-4-of-31-december-2010-1642/.
  31. Sumita Raghuram, Cultural Frames and Values Affecting Employment Practicesin How People Evaluate Others in Organizations 279-94 (Manuel London ed., 2001).

 

DISPATCH No. 6, Germany—“Prohibition on the Use of Temporary Workers as Strike Replacements,” by Thomas Klein and Dominik Leist

April 6, 2018

On 1 April 2017, an important amendment to Germany’s Temporary Employees Act (Arbeitnehmerüberlassungsgesetz or “AÜG”) came into force.[1] The amendment prevents the abuse of temporary work and limits the use of such work to its core function. One of the most important aspects of the amendment is that it prohibits the use of temporary workers as strike replacements.[2]

Previous Legal Situation in Germany

Prior to the amendment, temporary workers could legally replace striking employees.[3] The relevant legal provision, § 11(5) AÜG, provided only an individual right for temporary workers to withhold performance. That is, in the case of a strike temporary workers were allowed to refuse to work in the affected firm. However, in the light of their precarious employment situation, this right had no practical significance.

In Germany, temporary workers are in most cases employed for a limited time and are only rarely protected against dismissal. They are mainly low-skilled and can therefore be replaced easily. Additionally, there is only weak protection through collective institutions due to the low number of works councils in temporary work agencies and the very low rate of trade union membership among temporary workers. Not surprisingly, temporary workers avoid individual conflict with their employer during a strike.

While trade unions have sometimes been able to exclude the use of temporary workers during strikes through collective labor agreements, these exclusions are not binding upon user undertakings and affect only temporary work agencies. Moreover, their impact has been limited for two reasons: firstly, trade unions could not legally enforce the prohibition against temporary work agencies. They could only request employers’ associations to ask their members to comply with the collective agreement. Secondly, the prohibition could be evaded by setting up subsidiary companies which were not bound by collective labor agreements. Therefore collective agreements were unable to address the situation effectively.

The Nature of the Amendment

The core of the amendment is a prohibition, addressed to user undertakings, on the use of temporary workers as strike-replacements. Firms that are directly affected by strikes are no longer allowed to employ temporary workers as replacements. The penalty for violation is a fine of up to €500,000.

However, this restriction is of limited scope: if a temporary worker neither directly replaces a striking employee nor an employee who himself replaces a striking employee, an indirect replacement is still allowed. Therefore, the use of temporary workers having already been employed before the strike is possible. Nevertheless these temporary workers still have an individual right to withhold performance, as was the case before this amendment. They are not forced to work during strikes conducted by the permanent workforce, even if they are not replacing striking workers.

Despite the improvements due to the amendment, there are still legal loopholes. First, to bypass the prohibition, it is possible to use two or more permanent workers in chain to replace a striking employee before then being permitted to use a temporary worker as the third replacement. Due to the exceptions made by the law, such "replacement chains" are still not prohibited as long as the temporary worker does not directly take over the work of a striking worker or the work of an employee who replaces the striking one. Furthermore, the AÜG is not applicable to employer assignments within a group of companies, including assignments of temporary workers. Consequently, an employer can assign temporary workers from one related entity to another for the purposes of replacing striking workers, providing that the entities exist within the one parent company.

Finally it must be stressed that § 11(5) AÜG is only applicable to temporary work. Other forms of worker deployment in strike-affected companies, such as the use of contractors, are not covered by the law and therefore still permitted.

Compatibility with the Constitution

During the drafting of the amendment, concerns[4] were raised about its compatibility with the German Constitution, the Basic Law for the Federal Republic of Germany. In particular, commentators pointed to a breach of Article 9(3), which guarantees freedom of association. These concerns are not well-founded. The prohibition on using temporary workers as strike replacements in § 11(5) AÜG does not limit the use of strike replacements in general. The legislation only prohibits using temporary workers. The relevant question is not whether the prohibition in § 11(5) AÜG is an unjustified interference in the freedom of association of employers, but whether the legislature is obliged to permit the use of temporary workers as strike replacements. No such obligation can be derived from Article 9(3).

The use of temporary workers leads to a division in workforce between internal and external staff. The external staff are not directly involved in strikes for working conditions at the user undertaking. This weakens the effectiveness of trade union action. The use of temporary workers as strike replacements could further weaken the action to the point where strikes become obsolete.[5] The prohibition on the use of temporary workers as strike replacements is therefore necessary to prevent an overwhelming negotiating advantage for employers at the expense of workers and to guarantee the functionality of collective bargaining.

Legal Framework in the European Union

In the light of European Union law, the Temporary Agency Workers Directive[6] provides binding provisions for the national legislature concerning the use of temporary workers. § 11(5) AÜG as a temporary restriction for the use of temporary workers must be assessed in the light of Article 4(1) of the Directive, which provides that prohibitions or restrictions on the use of temporary agency work shall be justified only on grounds of general interest relating in particular to the protection of temporary agency workers, the requirements of health and safety at work or the need to ensure that the labor market functions properly and (that) abuses are prevented.

According to the directive, restrictions on grounds of general public interests are justified. Especially the protection of temporary workers counts as an issue of public interest according to Article 4(1) of the Directive. Furthermore, when interpreting the Directive, the fact that the right to strike as such is protected as a fundamental right by Article 28 of the European Charter of Fundamental Rights[7] must be considered. The Directive explicitly is without prejudice to national legislation or practices that prohibit workers on strike being replaced by temporary agency workers.[8] Thus with regard to EU law there are no concerns about the validity of § 11(5) AÜG.

International Legal Framework

The amendment brings the legal situation in Germany closer to international national standards, although it does not achieve full compliance. Although there are no specific international agreements on the use of temporary workers in companies affected by a strike, the responsible international supervisory bodies have criticized the use of strike replacements on multiple occasions. The International Labour Organization’s Committee for Freedom of Association (CFA) regards the replacement of striking workers in a nonessential sector as a serious violation of the freedom of association according to the Convention No. 87.[9] Also according to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) the use of strike replacements affects the freedom of association and the right to strike.[10] According to their/its latest statements, the use of strike replacements is only permitted when the strike is illegal.[11] The use of strike replacements has also been criticized by the UN Committee on Economic, Social and Cultural Rights[12] as well as—in connection with the use of civil servants in strike-affected companies—by the European Committee of Social Rights[13].

Taking this into account, especially the statements of the ILO Committees, the Federal Republic of Germany was actually obliged by international law to exclude the use of temporary workers as strike replacements or at least to restrict it. Germany has now attended to its obligations under international law with the amendment to § 11(5) AÜG. Therefore at least in relation to temporary agency work there is now a legal situation which conforms to the international legal framework. Nevertheless, German law does not fully meet the requirements of the ILO supervisory bodies because workers other than temporary workers and civil servants can still be used as strike replacements.

 

Dr. Thomas Klein is a Research Associate at the Institute for Labour Law and Industrial Relations in the European Union (IAAEU), Trier, Germany

Contact: klein@iaaeu.de

Dominik Leist is a Research Associate at the chair of Professor Monika Schlachter, Law Faculty, Trier University, Germany

Contact: leist@uni-trier.de

 

 Notes:

  1. Bundesgesetzblatt [Federal Law Gazette—BGBI], Vol. 1, No. 8, 258 (2017).
  2. The amendment also limits the duration of a temporary work assignment to eighteen months. Furthermore, it requires a general application of the principle of equality of payment between temporary workers and the user undertaking’s permanent staff after nine months.
  3. In recent years, the retail and service sectors (e.g. postal operators) have been particularly affected by the use of temporary workers as strike replacements in order to undermine strike action taken by the permanent workforce during wage disputes. Some temporary employment agencies have even focused on strike replacements as a special business model. This has further weakened the effectiveness of trade unions in these sectors, which are in any case generally not well organized.
  4. E.g. M. Franzen, Neuausrichtung des Drittpersonaleinsatzes—Überlegungen zu den Vorhaben des Koalitionsvertrags, in RECHT DER ARBEIT 150 (2015); H.J. Willemsen and C. Mehrens, Beabsichtigte Neuregelung des Fremdpersonaleinsatzes – Mehr Bürokratie wagen?, NEUE ZEITSCHRIFT FÜR ARBEITSRECHT, 901 (2015).
  5. This has already happened in sectors such as retail, where substitute workers are readily available.
  6. Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, 327 OFFICE JOURNAL OF THE EUROPEAN UNION (May 12, 2008), 9-14, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:327:0009:0014:EN:PDF.
  7. Charter of Fundamental Rights of the European Union, 202 OJ C (July 6, 2016), 389–405, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2016.202.01.0389.01.ENG&toc=OJ:C:2016:202:TOC.
  8. See the 20th recital in the preamble to Directive 2008/104/EC.
  9. International Labour Office, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th (revised) edition 2006, Geneva 2006, para. 632; also the new statements of the committee show that they see in the use of strike replacements a restriction of the right to strike: Report No. 376, October 2015, Case No. 3019 (Paraguay) para. 847; Report No. 360, June 2011, Case No. 2770 (Chile) para. 376; Report No. 357, June 2010, Case No. 2638 (Peru) para. 797; Report No. 353, March 2009, Case No. 2619 (Comoros) para. 574.
  10. International Labour Office, International Labour Conference, 81st Session 1994, Report of the Committee of Experts on the Application of Conventions and Recommendations, General Survey, Geneva 1994, para. 175; International Labour Office, International Labour Conference, 101st Session 2012, Report of the Committee of Experts on the Application of Conventions and Recommendations, General Survey, Geneva 2012, para. 152.
  11. Direct Request (CEACR) – adopted 2015, published 105th ILC session (2016), INTERNATIONAL LABOUR ORGANIZATION, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3252702,102805,Peru,2015.
  12. Concluding observations of the Committee on Economic, Social and Cultural Rights, 1 Dec. 2004, E/C.12/1/Add.105 para. 19, 42.
  13. Conclusions XII-2 (Germany), Art. 5 and Art. 6§4; Conclusions XIII-4 Art. 6 §4.

 

 

DISPATCH No. 5, Israel – “Using a Biometric Database in the Workplace – Employee Privacy, Trade Unions, and Public Employer Interests,” by Tammy Katsabian

July 8, 2017

The right to privacy of employees is at the center of contemporary legal debates around the world. The rapid development of technology, particularly digital technology, greatly facilitates the capacity of employers to closely supervise and monitor their employees. These changes led to new and unfamiliar scenarios that were brought to the courts, involving the employee’s right to privacy and the prerogative of the employer to manage its business autonomously. One of the innovative, yet problematic, ways to supervise an employee’s activity today – or more accurately, her presence at the workplace – is the use of a biometric time clock, through which the employee has to report whenever she enters and leaves her workplace.

The legality of using a biometric database at the workplace (which relies on employees’ fingerprints) was recently addressed by the Israeli National Labour Court (NLC) in The Histadrut vs. the Municipality of Qalansuwa (judgment of March 15, 2017). The Israeli legislature has not regulated this question, as of yet. That is why the NLC’s decision seems crucial on the national level. Furthermore, the NLC’s decision pertains to issues of consent versus notice, as well as to whether consent should be granted by the employee’s representatives or by each employee, and also raises questions of specific rules versus flexible standards. Therefore, I believe that the decision can also contribute to the global discourse on employees’ right to privacy in the technological age.

But before we will attempt to interpret the NLC’s decision, we should start with the factual background. Qalansuwa Municipality employees, including those at the municipality’s education department (most of whom are women) are represented by the national trade union, the “Histadrut”, and a general collective agreement with the Federation of Local Authorities regulates their rights and duties. In June 2012, the Municipality decided that all employees in the education department would be obligated to report, through a biometric time clock, each time they enter and leave the workplace, in order to accurately register their working hours. One of the Municipality’s claims was that the collective agreement gives it the mandate to require employees to do so. The Municipality clarified that employees who did not abide by these instructions would be considered absent and therefore would not receive their salary. The Municipality’s main justification for its dramatic decision was that, in the past, several employees manipulated the (previous) registration system. Therefore, it was decided to adopt a biometric time clock, which, it said, is the most efficient and accurate way to track employees’ working hours.

The Histadrut rejected the Municipality’s demand, arguing that it non-proportionally violated the employee’s right to privacy, and, moreover, that it was formulated without consulting with the labour union. Consequently, the Histadrut instructed the employees to ignore the Municipality’s new requirement and to refrain from using the biometric time clock. The Municipality, in turn, decided to pay only partial salaries to the employees who did not follow its instruction. Ultimately, after the sides did not reach an agreement, the case was brought to the Israeli Regional Labour Court (RLC). The RLC ruled that the prerogative of the employer to decide how to manage its business supersedes the employee’s right to privacy in this case, especially when taking into account that public funds are involved and that the biometric clock is used only for entrance and exit registrations.

Dissatisfied with this decision, the Histadrut appealed to the NLC. Given the novelty of the issue and its effects on the rights and interests of both sides, third parties were allowed to join the proceeding (the Israeli Attorney General, the Federation of Local Authorities in Israel, the Manufacturers Association of Israel, and civil and labour rights NGOs).

The NLC started the judgement by explaining that, first and foremost, we should ascertain whether the employees’ right to privacy was violated. Only if the answer to this initial question is affirmative, then there is a need to examine, and then balance, the other rights and interests at stake. Following this, the NLC clarified that a fingerprint is a person’s private information, and therefore protected in the framework of her right to privacy. By so doing, the NLC followed the perception of privacy as control over one’s life, particularly over information about her, in accordance with her right to autonomy.1 Next, the NLC noted that there are interests of the employer that need to be taken into account as well, namely the employer’s prerogative to manage its business as it wishes as well as its property rights. Furthermore, since the case at hand involves a public employer, there is a need to balance also the public authority’s obligation to operate in good faith and respect its employees’ rights versus the importance of saving public funds and assuring that employees are, in fact, present at the workplace. At this stage, the NLC referred to the proportionality test, which has been adopted and applied in previous Israeli cases pertaining to employees’ right to privacy, notably in the context of professional e-mail accounts.2 Yet, even though the NLC refers to proportionality principles, in practice it seems to accord the employee’s right to privacy an almost absolute status. 

Thus, after the NLC reached the conclusion that the right to privacy of the employees was violated, it examined whether there was legislation authorizing the employer to mandate its employees to provide a fingerprint or any other biometric information. After finding that there was no such legislation, it sought to determine whether each of the employees gave her free and informed consent to the Municipality’s instruction. Unsurprisingly, given that the issue reached a legal tribunal, the NLC asserted that the employees did not give their free and informed consent. Therefore, the NLC concluded, the Municipality’s decision should be overturned.

The NLC’s decision to examine each employee’s consent in order to determine whether Qalansuwa Municipality’s orders were valid or not, is interesting for several reasons. First, while not stating it explicitly, the NLC prioritized the element of consent over that of notice, thereby following the European approach to privacy (rather than the American one).3 By so doing, the NLC gave the right to privacy of the employee an almost absolute status, not taking into consideration the interests and rights of the employer. Or, put differently, without employing the proportionality principle. When we approach the issue from a labour rights perspective and as we consider the numerous ways in which employers can nowadays intrude into their employees’ privacy, it makes sense to give significant weight to the employee’s consent, and to demand that it is informed and authentic. However, it is interesting that the NLC does so in practice, and yet rhetorically it pretends to balance between the employers’ interests and the employees’ rights.

Second, when relying on the legislation and the consent of the employees, it seems that the NLC demonstrates a need for concrete and clear-cut rules. In terms of its rhetoric, the NLC follows its previous precedents and applies the open-ended proportionality standard.4 Yet, in practice, it operates differently and prefers not only the right to privacy of employees over the interests of the employer, but also a clear-cut rule rather than a more amorphous standard of regulation (such as the proportionality principle).5

Finally, when applying the consent element in this case the NLC clarified that it examined the concrete consent of each employee, as well as whether it was an informed consent that was given freely. In this case, the Histadrut did not consent to the privacy violation and had in fact instructed the employees to disobey the employer’s orders. Therefore, the NLC leaves unanswered the question of whether in principle a trade union can consent in the name of the employees to privacy violations. However, throughout its decision the NLC has repeatedly emphasized that each and every employee must give her consent after receiving detailed explanation of the privacy violation and freely and authentically agreeing without the interference of any other party. It therefore seems that the NLC implies that only the individual employee can consent and legitimize a violation of her privacy. Yet even from a labour-rights perspective it is worth questioning this approach. Given the general enforcement crisis in the labour field,6 along with the countless new ways to violate the right to privacy of employees in the technological era, there is a strong case for strengthening modes of regulation that are based on trade unions and employers’ representatives.7 Because, generally, trade unions are in a better position than the employee (and even the courts) to adapt privacy rules to the concrete workplace, and to assure that the employer is abiding by these rules.8 (Having said that, it should be taken into consideration that as a collective, a trade union might be less protective of the privacy of each employee).

To conclude, the NLC’s decision in this matter demonstrates its real commitment to the rights of employees, which seem to be under constant threats nowadays, to a large extent because of rapid technological developments. However, the decision may indicate a tendency of the NLC to accept only the employee’s individual consent, without balancing it with the rights and interests of the employer or opening the option of a trade union’s consent. Moreover, it appears that the NLC is doing so in a way which gives explicit priority to the right to privacy of employees, and incidentally, prioritizes clear-cut rules over flexible standards.

 

Tammy Katsabian (LLB, Bar-Ilan; LLM, Yale) is a doctoral candidate at the Hebrew University of Jerusalem, under the guidance of Professor Guy Davidov.

  1. Alan F. Westin, Privacy and Freedom 6–7 (1967). Michael Birnhack, Domination and Consent: The Theoretical Basis of the Right to Privacy, 11 L. & Gov’t 9 (2008) (Hebrew).
  2. Isakov v the Israeli State – the Commissioner on Women’s Work Law (judgment of February 8, 2011).
  3. Matthew Finkin, Chapter 7: Privacy and Autonomy, Employee Rights and Employment Policy Journal (forthcoming 2017); Marta Otto, The Right to Privacy in Employment (2016).
  4. See supra note 2.
  5. For more information on the tension between rules and standards, see Guy Davidov, A Purposive Approach to Labour Law 159–63 (2016).
  6. Id., at ch. 9.
  7. The notion of turning to trade unions in order to set up privacy rules in every workplace and ensure compliance seems to be accepted and acted upon in some European countries. The French Labor Code requires that employers notify the representatives of employees of monitoring practices in the workplace. In Germany, employers can interfere legitimately with the employees’ right of privacy only if a collective agreement, legislation or any other similar mechanism authorizes such interference. See Jay P, Kesan Cyber-Working or Cyber-Shirking?: A First Principles Examination of Electronic Privacy in the Workplace, 54 Fla. L. Rev. 289, 308–10 (2002).
  8. Id.

DISPATCH No. 4, France—“The new French labor law: Loi n° 2016-1088 du 8 août 2016 relative au travail, à la modernisation du dialogue social et à la sécurisation des parcours professionnels,” by Gwenola Bargain

March 25, 2017

“Work in progress.” Not surprisingly, in the midst of summer, the law related to labor, modernization of social dialogue and the security of career paths was finally passed. The process of the reform plan intended by the French socialist government at the beginning of the year 2016 was long and chaotic. It led to civil society mobilizations, online petitions, street protest, strikes, blockades of the oil refineries…etc. Given this massive reaction, the draft of the reform was revised and, then, the revised version was corrected again. Even the title of the law appeared to be undefined. At first, the draft law was entitled “building new freedoms and new protections for businesses and assets.” The title of the law now refers to “labor” and is commonly identified as the “labor” law or the “El Khomri law” – the name of the French Minister of Labor. The culmination of this series of attempts was the government choice to use the French constitution 49-3 provision, which allows, under conditions, the adoption of a law without a vote in the National Assembly.

Adopted on 21 July 2016 and published on 9 August 2016, the law came into force last summer but needed 127 measures to be implemented by a decree. Some provisions came into force on August, others on December 2016, and others on January 2017…etc. The final version of the reform is far different from what was initially planned. The reform has been elaborated without consultation with unions, in spite of Article 1 of the Labor Code, which provides the social dialogue with social partners when a reform related to social policy is intended. After the struggle between unions and the government, several measures have been left out of the final version. Among the most controversial measures were the cap imposed on damages for unfair dismissal and the assessment of economic difficulties of a company belonging to an international group at a national level; both have been abandoned. In the end, the text contains 123 articles and it is divided in 7 titles. It covers a wide range of subjects; from working time to personal account of activity; from the legal right to avoid checking work to the legal framework for digital platform; from the strengthening of collective bargaining to the reform of occupational medicine. The revisions are so substantial that the philosophy and the conceptual framework of the reform are really hard to grasp.1 

Context. The content of the law has been partly shaped by the propositions of several Reports. The main influence lies in a set of proposals advanced by the “Combrexelle Report” on collective bargaining and the renovation of social dialogue.2 The working group set out 44 recommendations in order to create a new dynamic of collective bargaining and to open new fields of collective bargaining. Pursuant to the spirit of the report, the Title 1 of the law is dedicated to: “Rebuilding labor law and strengthening collective bargaining.” Under Article 1 of the law, a group of experts should be commissioned to make recommendations related to a “reform of the Labor Code,” by taking into consideration that “a central role should be attributed to collective bargaining, by extending its fields and its scope of action.” Curiously, the reform plans itself a future reform (“refondation”) of the labor Code that it has not yet conceived. As a consequence, the future of the planned rewriting of the Labor Code is very uncertain, as the year 2017 is a year of presidential elections. 

Promoting collective bargaining at a decentralized level. The complexity of the El Khomri law results from the fact that the part of the Labor Code related to working time has been already revised in line with the “program” of Article 1. Chapter 3 of the law is dedicated to the implementation of a “new architecture of rules related to working time.” At this stage, working time is the main domain affected by the new articulation of collective norms and by the promotion of collective agreement at business level. Each regulation in the field in working time law is now divided into three paragraphs. The first paragraph mentions the public policy rules (ordre public). The second paragraph sets the scope of collective bargaining (champ de la négociation collective) and the third provides “the default rules” (règles supplétives). This rewriting of the existing legal framework is expected to enable a better understanding of the scope of collective bargaining but actually it creates a set of difficulties, while the field of public policy rules is not clearly set. This part of the reform is quite experimental, as the new architecture of the labor law rules ought to be extended to the whole Labor Code with the planned reform.

The other component of the reform of the working time rules is the priority given to company level agreement over sectorial agreements in some matters. As in other European countries, the expansion of negotiation at a decentralized level has been, for several years, the horizon of the desired changes by some social partners and promoted by the law. This trend is prevailing in the field of working time and collective bargaining at company level is put forward to address employment issues. Since the reforms in 20043 and in 2006,4 collective agreements at company level can be less favorable than agreement at sector level (under conditions). The El Khomri law goes one step further, in some specific matters.5

This promotion of collective bargaining goes with the strengthening of the legitimacy of the collective agreement. The reform changes the rules of validity of the company level agreements (Article 21). Under the current system, a company agreement has to be signed by trade unions representing employees who have received at least 30% of the votes in the first round of the last elections and the absence of opposition of trade unions who received the majority of votes in the same election. Under the new legal framework, an agreement has to be signed by unions represented at least 50% of the votes cast in the first round at the last elections in favor of representative unions. The law put an end to the system of the opposition right, which was a condition for the validity of the agreement. The system is not exclusively in favor of the “majority rule” as it allows to a minority trade union representing at least 30% of the votes to require the settlement of a referendum to bypass the reinforced requirement of majority. While making the majority agreement a principle, the law sets an exception by allowing a kind of minority agreement, given the “democratic” legitimacy of the votes of the employees. In the same time, the law widens the range of company agreements concluded in the absence of union delegate but with a consultation of employees approving the agreement (Article L. 2232-24-1). The legitimacy of collective agreements is directly challenged by, or grounded on, the legitimacy of the direct vote of employees. 

Economic rationality. Title 4 of the law, entitled “promoting employment,” displays the economic ambition of the reform. It contains a vast range of measures, more or less connected with this objective. The most contentious measure relates to economic dismissal (Article 67). A new legal framework of economic dismissal was initially conceived of but the reform eventually settled is less ambitious due to the protests and the chaotic process of the adoption of the law. The reform focuses on the legal characterization of economic difficulties justifying a dismissal. In order to promote employment by “securing dismissals and preventing legal disputes,”6 the law intends to clarify the criteria establishing economic difficulties. Under the new provision, an employer is entitled to justify the existence of economic difficulties by referring to one at least of these indicators: a decrease of orders, business figures, cash-flow problems, gross operating surplus (Article L. 1233-3 1° of the Labor Code). The reference to these accounting indicators is not new, as judges already refer to these. However these indicators are now “legal.” As a consequence, an employer is entitled to meet just one of these criteria justifying the existence of economic difficulties. Moreover, the list is not exhaustive as the law refers to the possibility to put forward “anything else” that is of nature to establish the difficulties. The law specifies that the evolution of these indicators should be “significant.” Under the new framework, a “significant” evolution is defined in relation to the number of terms and the number of employees. The purpose of this part of the reform is clearly to limit the margin of discretion of the judge when evaluating the reality of the difficulties. This legal framework is expected to impact the hiring decision by “securing” the firing decision.

Flexibility granted to employers lies also at the core of the new agreement created by the law: the “agreement on preserving and developing employment” (accord de preservation de l’emploi). Pursuant to the trend of “derogatory agreements,” a new kind of collective agreement has been created by Article 22 of the law in the chapter dedicated to the increase of the legitimacy of collective bargaining. This collective agreement aims to adapt the working conditions at a company level to its economic constraints. This new kind of collective agreement derogates to the traditional mode of articulation of the collective agreement and the labor contract. Under article L. 2254-1, when an employer is bound by a collective agreement, its provisions apply to the employment contract except if the contractual provisions are more favorable to the employee than those of the collective agreement. Contrary to this, the collective agreement on preserving and developing employment imposes its provisions upon those of the employment contract even if the contractual provisions are more favorable. The employee is entitled to refuse this “substitution” but in that case, the consecutive dismissal lies on a “specific motive which is a real and serious cause” (L. 2254-2.-I). The dismissal takes the form of an individual dismissal for economic reason with enforcement measures accompanying job research and training. This type of agreement is less restrictive that the one created by the previous law of 14 June 2013 on “securing employment law.” The agreement to maintain employment (accord de maintien de l’emploi) is only applying by companies facing serious temporary economic difficulties (L. 5125-1 of the labour Code). 

Security of career paths. To offset this economic dimension of the reform, the law contains provisions fostering the security of careers (Title 3). The key measure is the creation of “the personal account of activity” (compte personnel d’activité) aiming “to strengthen the autonomy of its holder” (article L. 5151-1) by bringing together several personal accounts, accessible on an online platform. Attached to its holder, the account encompasses the personal training account, the personal hardship account (compte personnel de prevention de la pénibilité) and the new civic engagement account.7 The originality of this account lies in its beneficiaries, as a vast range of workers (and job-seekers) is entitled to use one. The personal training account, created on 5 March 2014, allows workers to acquire training entitlements that they can use throughout their career. For instance, for a full time employee, the account is credited with 24 hours a year up to 120 hours. The personal hardship account, created on 20 January 2014, is designed to enable workers exposed to harsh working conditions to accumulate points on it and to convert these points into vocational training schemes, additional remuneration in case of part time or for their retirement. The new civic engagement account enables people involved into volunteer work to acquire training entitlements. The new legal framework leaves much to be desired as the new personal account of activity is mainly conceived as a tool for managing these three accounts. It enables individuals to inquire of theirs rights with an online access system but it does not provide a true support for the security of their careers. 

In spite of the vast diversity of measures contained by the law, the core of this reform is mainly built on a market-focused framework.8 It clearly moves away from one of the original aims of Labor law, i.e. the implementation of measures limiting the commodification of work.

 Gwenola Bargain is an Associate Professor at the Université François-Rabelais de Tours

 Notes: 

  1. See special issues in volume 12 of the Revue de Droit du Travail (2016) and Volume 11 of the Droit Social (2016).
  2. Rapport Combrexelle, La négociation collective, le travail et l’emploi, septembre 2015.
  3. Loi n° 2004-391 du 4 mai 2004 relative à la formation professionnelle tout au long de la vie et au dialogue social.
  4. Loi n° 2008-789 du 20 août 2008 portant rénovation de la démocratie sociale et réforme du temps de travail.
  5. See Article 8.
  6. See the statement of reasons of the law.
  7. See special issue : Droit social, n° 10, 2016.
  8. See, T. SACHS, « La consolidation d’un droit du marché du travail », Revue de droit du travail, 2016, p. 758.

     

     DISPATCH No. 3, RUSSIA -- “Problems of Enforcement of the Right of Association (Trade Union Establishment) in the Countries of the Eurasian Economic Union,” by T.A. Izbienova and M.I. Averyanova

On May 29, 2014 in Astana (Kazakhstan) the Treaty on the Eurasian Economic Union (hereinafter the “Eurasian Union” and/or the “Treaty”) was signed, initially composed of the Russian Federation, Belarus, Kazakhstan, and then the Republic of Armenia,1 and subsequently joined by the Kyrgyz Republic.2 The Union started working on January 1, 2015.

The interest in the Eurasian Union is due to the fact that one of the main objectives of its establishment is the “urge to set up a common market . . . of the labor force within the Union” (Article 4 of the Treaty),3 and a permanent governing body of the Eurasian Union—the Eurasian Economic Commission (hereinafter the “EEC” or the “Commission”)—carries out its activities not only in the field of customs and tariffs, currency and other economic regulation, but also labor migration.4 The Commission's decisions are binding upon on the territory of the EEC member countries. The successful realization of the goal of the Eurasian Union—the creation of a single market of labor resources—involves formation of a unified legal framework in order to regulate work of employees, including in the area of employees’ rights of association.

In this regard, the study of the national legislation of Eurasian Union member countries with a purpose of a step by step unification of labor and trade union rights is a very promising field in studies of the post-Soviet Union states’ legal systems.

The importance of this study is attributable to the fact that a dual trend in the development of the trade union movement has been observed in recent years, both at the international and national levels. On the one hand, there is a tendency to reduce the number of trade union organizations members. This process has started in the 1980s in most developed countries. According to the data of the International Confederation of Trade Unions, European countries are characterized by a global trend of the reduction in number of trade unions. Trade unions are in a state of trade unionism crisis meaning that they often appear to be disoriented in their relations with governments and employers, and are not able to express the employees’ positions in social and partnership relations.5

On the other hand, while recognizing the trade union crisis, researchers pays attention to the formation of a positive trend of “reunionization” understood as strengthening of the legal status of trade unions and the restoring of their role in social movement.6

Restoration of the active and effective trade union activity in the Eurasian Union member states implies an adequate review of the objectives, the priorities of this public association, identifying new ways of implementing them, as well as finding approaches in management of trade union associations.

The right to form and to join trade unions for the protection of personal interests is one of the most important social and labor rights. Worldwide this right is enshrined in Article 23 of the Universal Declaration of Human Rights adopted by the UN General Assembly on December 10, 1948, as well as in Article 22 of the International Covenant On Civil and Political Rights of December 16, 1966, ratified by the members of Eurasian Union.

The right to establish trade unions is contained in a number of conventions of the International Labor Organization (“ILO”), in particular: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Workers' Representatives Convention, 1971 (No. 135), Promoting Collective Bargaining Convention, 1981 (No. 154), as well as Workers’ Representatives Recommendation, 1971 (No. 143)

All current Eurasian Union countries are ILO members. In these circumstances, a statement from the ILO Declaration On Fundamental Principles and Rights at Work of 1998 should be taken into account. According to the statement all member states, even if they have not ratified the indicated Conventions, are under an obligation arising from the very fact of their membership in the ILO. This is to comply with, to promote application and to implement principles covering the four fundamental rights, one of which is freedom of association.

Referring to international labor treaties operational within a particular region, the right to freely join national or international organizations protecting one’s economic and social interests is enshrined in Article 5 of the European Social Charter, ratified by the Russian Federation in 2009. It establishes the workers’ and the employers’ right to form local, national and international organizations for the protection of their economic and social interests and to join those organizations.

The rules of these international treaties have been developed in the national legislation of the Russian Federation, the Republic of Kazakhstan, the Republic of Belarus, the Republic of Armenia, the Republic of Kyrgyzstan. Let us consider a number of problematic aspects of the workers’ right to freedom of association in the mentioned countries.

The Russian Federation

The right to establish trade unions is recognized in Article 37 of the Constitution of the Russian Federation, and in the provisions of the Federal Law No. 10-FZ of January 12, 1996 “On Trade Unions, Their Rights and Guarantees For Their Activity,” according to which a trade union is a voluntary association of citizens, brought together by their common production and professional interests by the kind of their activity, set up to represent them and to protect their socio-labor rights and interests. These trade unions’ powers were further defined in Labor Code of the Russian Federation (“RF Labor Code”) which includes Chapter 4 “Employees’ and Employers’ Representatives in the Social Partnership” and Chapter 58 “Protection of Workers’ Labor Rights and Lawful Interests by Trade Unions.” According to the legal provisions contained in the first of the above-mentioned chapters, these are trade unions that are given the priority to act as employees’ representatives in the social partnership. Chapter 58 gives interpretation of:

  • trade unions’ rights to monitor the employers’ compliance with the Labor Law (Article 370 of the RF Labor Code);
  • peculiarities of taking into consideration the trade unions’ opinion as a form of employees’ participation in management (while adopting local regulatory acts, etc.) (Articles 372 - 373 of the RF Labor Code).

Despite the large number of regulatory directions in the Russian legislation on the freedom of association, in practice, nonetheless, restriction of the rights of employees and trade union leaders due to their membership in the trade union is widely spread. Russian trade union leaders are often faced with discrimination affecting their labor rights due to their membership in this association. Do Russian employees faced with such restrictions because of their membership in a trade union have an effective instrument to protect their labor rights?

These circumstances, in particular, were the reason citizen Danilenkov and thirty-two citizens of Russia filed a complaint to the International Labor Organization Committee on Freedom of Association of the Labor Confederation of Russia, and then to the European Court of Human Rights (“ECHR”). The complaint was filed in accordance with Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The applicants claimed a violation of the right to freedom of association and sought for prohibition of discrimination. Considering the case, the ECHR concluded that the state failed to perform its positive obligations to adopt effective and clear judicial protection against discrimination on the ground of trade union membership. Consequently, violation of Article 14 in conjunction with Article 11 of the Convention occurred.7

Unfortunately, Russian case law has an insignificant number of examples when discrimination on the grounds of trade union membership was recognized as the true reason for employment termination relating to the specified individuals.8 In most cases, judicial and law enforcement bodies do not see discrimination in employers’ actions, for instance, in unlawful dismissal of trade union leaders. A representative example is the investigation conducted by the Investigative Committee of the Russian Federation in Saratov Region results of which received considerable public attention. On March 29, 2012, in Engels (town in Saratov Region, Russia) a criminal case on grounds of crime under Part 1 of Article 136 of the Russian Criminal Code (discrimination based on a citizen’s membership in public associations) was initiated. The employees of “Tander” JSC (the “Company”), a legal entity engaged in commercial activity, set up a primary trade union organization. After that, the members of the trade union were repeatedly approached by the administration of the Company with the proposal to halt trade union activities. Then, the employer made a decision to dismiss two employees violating their rights, freedoms and legitimate interests due to their choice to become members of a trade union. The court found dismissal of one of the employees had been illegal and, therefore, reinstated that employee in his position with the Company. The second employee was reinstated in his position by administration of the Company.9 However, after some time, despite the court decision, which stated that discrimination had taken place, the criminal investigation was closed due to the absence of a causal link between dismissal of the employees and their activity in the trade union.10

The existence of discrimination on the grounds of trade union membership has been confirmed by ILO’s criticism with regard to the Government of the Russian Federation. For instance, the ILO’s Committee On Freedom of Association handled a claim filed by the All-Russian Confederation of Labor, the Confederation of Labor of Russia and supported by the Federation of Independent Trade Unions of Russia, the International Trade Union Confederation, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Unions, International Metalworkers’ Federation, the International Transport Workers’ Federation (Decision of November 1–16, 2012). The claim contained statements about ineffectiveness of the existing mechanisms for the protection against discrimination on the grounds of trade union membership and against employers’ interference in the internal affairs of trade unions, despite the existence of a formal ban on such actions in legislation.

The claim raised concerns that there had been numerous trade union rights violations, namely: physical assaults of trade union leaders; violation of freedom of expression; interference into the trade unions’ affairs by the state authorities; refusals in registration of trade unions by the state authorities; discrimination on the grounds of trade union membership; the absence of effective mechanisms to protect the violated rights; failure to provide employees’ representatives with working conditions; violation of the right to collective bargaining; failure of state authorities to act against those violations.

One of the claim sections concerns the unprecedented fact that the Russian court included trade union leaflets containing such slogans as: “Be the price of the crisis paid by those who have started it,” “We are against precarious employment,” and “We demand to restore night differentials” into the federal extremist materials list.

The Committee emphasized that the existing fundamental legal provisions prohibiting discrimination on the grounds of trade union membership are not effective unless they are complemented by procedures which ensure effective protection against such discrimination. In the summary recommendations, the Committee requested the Government of Russia take measures to bring the legislation into conformity with the principles of freedom of association and the right to collective bargaining, to take the necessary measures to remove the union leaflets from the extremist literature list and to report on the further progress.11

At the time of this article, none of the above ILO’s recommendations have been implemented. This fact was noted in the published in July 2015 the Committee on Freedom of Association’s report by the ILO Governing Body. In this report, deep regret regarding non-implementation of recommendations by the ILO’s Governing Council in November 2012 (Case No. 2758) was expressed among other issues.12

The Republic of Belarus

The right of association is recognized in Article 36 of the Constitution of the Republic of Belarus, according to which “everyone has the right of freedom of association.” Article 41 of the Constitution provides the citizens of the Republic of Belarus with the right to protect their economic and social interests, including the right to association.13 The status of trade unions in the Republic of Belarus is defined by the law of the Republic of Belarus of April 22, 1992, No. 1605-XII “On Trade Unions” (hereinafter the “Law On Trade Unions of the Republic of Belarus”).14

Article 7 of the Law On Trade Unions of the Republic of Belarus contains a remarkable provision stating the following grounds for representation of the republican trade unions (trade union associations) and their organizational structures in the public authorities:

  • first, the existence of elective, managing, executive bodies and their legality in accordance with the requirements of the articles of association and legislative requirements of the Republic of Belarus;
  • second, the existence of the determined annual trade union’s statistical reports on the structure and membership, as well as the consolidated financial statements.

Should these grounds exist, trade unions have all the powers granted by the Law On Trade Unions of the Republic of Belarus and protect the labor, social and economic rights and interests of trade union members at appropriate levels.

Trade unions, which are not subject to the conditions mentioned, defend interests of their members only to the extent provided by the legislation of the Republic of Belarus and also by joining (with the consent of the parties) collective bargaining agreements (contracts) concluded by the most representative trade unions or their associations.

Thus, this country’s national legislation contains provisions contrary to the international law in terms of restricting the powers of trade unions, not having the statistical and financial statements prescribed by public authorities.

Severe restrictions on trade unions associations are contained in the Republic of Belarus President’s Decree of January 26, 1999, No. 2 “On Certain Measures to Regulate the Activities of Political Parties, Trade Unions and Other Public Associations.” Paragraph 3 of the Decree sets out the requirements for establishment of trade unions. For example, to establish and run the national trade union, at least 500 founders from the Republic of Belarus regions and Minsk are required; to establish the territorial trade union at least 500 founders from the majority of administrative-territorial and territorial entities of the respective territory are required, to establish a trade union at the enterprise, institution, organization, and other work (educational) places not less than 10% of employees (students) of the total number of employees at the enterprise, institution, organization, but at least ten people are required.

The activity of unregistered trade unions in the Republic of Belarus is banned, as well as trade unions failed to re-register.15

The state authorities of Belarus build relationships with the “state” trade unions only, for example, with the Federation of Belarus Trade Unions, supported by the government. There is discrimination of free and independent trade unions by the state.

Researchers specify the following discriminatory relations:

  • non-registration of new trade unions. Over the recent years, not a single new trade union has been registered in the Republic of Belarus. It should be noted that the trade unions are founded regularly, however, they are also regularly refused in state registration, which is required to run trade unions;
  • non-registration of the trade union organizational structures. Similar problems occur when the organizational structures of independent and free trade unions are being registered.16

The above-mentioned circumstances explain the fact that according to the International Trade Union Confederation having ranked 141 countries by ninety-seven internationally recognized indicators to assess the protection of labor rights, both at the legislative level and in practice, the Republic of Belarus is among the ten worst countries for employees. It is significant that Belarus is among such countries as China, Colombia, Egypt, Guatemala, Pakistan, Qatar, Saudi Arabia, Swaziland, and the United Arab Emirates. “The lack of guarantees of the employees’ labor rights” is the manifestation of violations of international standards by Belarus, according to experts of the International Trade Union Confederation.17

The Republic of Kazakhstan

Analysis of trade unions in the Republic of Kazakhstan leads us to a conclusion that these representative bodies lose their influence since nowadays “they are split and in fact consolidate only 30% of the employed population, or just slightly more than 2.5 million employees out of 8.4 million employees of the country's employed population.”18  The actual situation with independent trade unions in the country, especially in the oil industry, is the major concern of the ILO’s experts and representatives of human rights organizations. State interference in the peaceful strikes in 2011 proves this fact. The Kazakh authorities prosecuted an oilman OMG and trade union lawyer of Karazhanbasmunai JSC (a joint venture of Kazakhstan's state oil and gas corporation and Chinese state-owned company) Natalia Sokolova who in August 2011 was sentenced to six years’ imprisonment for her speech on wage inequality. Currently, Sokolova is released. In total, during the strikes in 2011 in three oil-producing companies in Kazakhstan, more than two thousand employees were dismissed. The ILO considers these retaliatory reasoned dismissals to be unlawful discrimination in employment.19

The legal basis of the trade unions’ activities in the Republic of Kazakhstan is determined by a number of regulatory legal acts, the main of which is the Constitution of the Republic of Kazakhstan. Article 23 enshrines the right to freedom of forming associations and states that activities of public associations in the country shall be governed by law. Article 7 of the Labor Code of the Republic of Kazakhstan prohibits discrimination in employment, including discrimination on the basis of membership in public associations.

In June 2014, the Republic of Kazakhstan’s legislation on trade unions underwent major amendments expressed in the change in the main approaches to the regulation of relations between the state and employees’ representatives.

For instance, Law of the Republic of Kazakhstan No. 211-V “On Trade Unions” (hereinafter the “Law On Trade Unions of the Republic of Kazakhstan”) enacted on June 27, 2014, contains a considerable but formalistic list of guarantees for trade unions and their members, aimed at protection against discrimination (Article 25).

Article 26 of the Law On Trade Unions of the Republic of Kazakhstan provides guarantees for employees elected to trade union bodies but not exempt from the primary employment. These guarantees involve, mainly, taking into account a reasoned trade union body’s opinion when employees who are members of the elective trade union bodies are dismissed at the employer’s initiative.

At the same time, this act introduces a mandatory procedure of trade unions registration, in other words sanctioning activities of state trade unions by the state (Article 10 of the Law On Trade Unions of the Republic of Kazakhstan). In addition, the Law On Trade Unions of the Republic of Kazakhstan sets out activities of public associations on the principles of associativity (membership), comprising of republican, territorial, sectoral and local levels social partnership, meaning the establishment of a sole trade union monopoly (Paragraph 3 of Article 12, Paragraph 3 of Article 13, Paragraph 4 of Article 14 of the Law On Trade Unions of the Republic of Kazakhstan).20

In the meanwhile, the official representatives of the government of Kazakhstan explain that the said principle of the associate membership will give a positive impact on the trade unions’ activities as it "will allow all unions systematically to participate in development of the program of action at all levels of social partnership, to provide a vertical feedback from employees to trade unions’ governing bodies and their associations with regard to taking decisions on key issues affecting labor and social and economic rights and interests of citizens on a consolidated basis."21

Giving a characteristics to the Law On Trade Unions of the Republic of Kazakhstan, it should be noted that, this law, according to the representatives of the above mentioned the most competent and largest international trade union organization, the International Trade Union Confederation, as well as the World Federation of Trade Unions which is an association of the radically oriented communists, in fact, “strengthened the monopoly in the trade union movement of the Republic Kazakhstan and severely restricted powers of the independent trade unions, as well as significantly restricted the trade unions’ rights to make demands, to organize and to stage strikes.”22

In his letter to the President of the Republic of Kazakhstan of August 12, 2014, the Secretariat of the World Federation of Trade Unions protested against the unacceptable decision on deprivation of the employees’ right to form their own trade unions, and expressed its disapproval of discrimination against employees who intend to create their own organizations free from control of the state authorities and employers and undemocratic violation of trade unions and human rights by the Government and the Parliament of the Republic of Kazakhstan. To summarize, the World Federation of Trade Unions urged the President of the Republic of Kazakhstan to bring the Law On Trade Unions in accordance with the provisions of ILO’s Conventions, international agreements and other documents signed by the authorities of the Republic of Kazakhstan.23

Thus, a detailed analysis of the articles of the Law On Trade Unions of the Republic of Kazakhstan relating to the freedom of the internal activities of trade unions (their structure, state registration, reorganization and dissolution of these public associations), requirements for making demands by the trade unions and the right to strike, etc. allows us to conclude that a serious restriction of the trade unions’ powers exists in the country.

The Republic of Armenia

According to the ILO’s statistics, the number of employees with membership in trade unions has sharply reduced in the Republic of Armenia in recent years.24  Referring to the guarantees for trade union rights enshrined in the legislation of the Republic of Armenia, firstly it is necessary to note the fact of the recognition in the Constitution of the Republic of Armenia the right of every citizen of associations with other persons, including trade unions establishment and join them (Article 28).

The status of trade unions is enshrined in the Law of the Republic of Armenia of December 05, 2000 On Trade Unions (“Law On Trade Unions of the Republic of Armenia”) Article 3 of which consolidates the basic principles of the trade union’s activity being:

  1. a) independence of the state authorities, local authorities, employers, political, social and other organizations;
  2. b) voluntary participation (membership) in trade unions;
  3. c) equality of trade unions;
  4. d) non-restriction of worker’s rights due to their participation (membership) in a trade union.

The Trade Union of the Republic of Armenia is independent of government agencies, local authorities, employers, other organizations and parties, it is not accountable to them and not the subject of their control, except for the in cases provided for by law.

State agencies, local governments, employers, other organizations, and individuals are prohibited to interfere with or intervene in the exercise of the rights established by the charter of a trade union, except for cases stipulated for by law (Article 13 of the Law On Trade Unions of the Republic of Armenia).

The principle enshrining the equality of labor relations parties of irrespective of the membership in trade unions or social organizations is found in paragraph 3 of Part 1 of Article 3 of the Labor Code of the Republic of Armenia.

Despite the presence of the said above legal provisions, there are certain observations to the legislation of the Republic of Armenia, on the right of association, expressed by the ILO Committee on Freedom of Association which has repeatedly noted the lack of certain provisions in the Law On Trade Unions and in Labor Code of the Republic of Armenia concerning the legal status of trade unions. The Committee's position rests upon the interpretation of the principle of the interrelationship between the trade union and other representative at the company, according to which “in the company where there are both trade union representatives and elected representatives, the existence of elected representatives cannot be used to undermine the positions of the trade unions concerned.” Provided for by the legislation of the Republic of Armenia (see sections 23, 25, 45, 55, and 56 of the Labor Code of the Republic of Armenia) "direct negotiations between the company’s employees, in circumvention of the representative organizations where they exist, harm the establishing principle that the negotiations between employers and workers’ organizations ought to be encouraged and developed. In this regard, the Committee requested the Government of the Republic of Armenia to take the necessary measures to amend the legislation of Armenia in accordance with the above principles."

The authors do not possess the information on addressing of the ILO bodies to the supreme executive bodies of Armenia, as well as, Trade Unions of Armenia to the Committee on Freedom of Association with claims of the principles of freedom of association violation.25

The substantiated criticism is brought also to Article 2 of the Law On Trade Unions of the Republic of Armenia, under which a legally legitimate trade union association can be considered those which are composed of more than a half of the professional organizations and (or) unions of professional organizations operating in a particular area of professional activity, or in the related fields or in the state as a whole. This requirement is in a fact a barrier for establishing a trade union organization and an indirect government intervention in the activities of employees’ representatives.26

The Republic of Kyrgyzstan

Every person’s right of freedom of association as well as in other Eurasian Union’ member states is enshrined in Article 35 of the Constitution of the Kyrgyz Republic. On October 5, 1998, a special Act of the Kyrgyz Republic On Trade Unions in relation to the trade unions was adopted (“Law On Trade Unions of the Republic of Kyrgyzstan”), which gave a powerful impetus to the trade unions’ activities and brought broader powers to them.

Currently, the Federation of Trade Unions of Kyrgyzstan unites twenty national trade unions, six regional inter-union associations and 8,060 primary trade union organizations, in total:  966,000. Union members.27

The Law On Trade Unions of the Republic of Kyrgyzstan recognizes independence of trade unions and lack of control by public authorities’, employers, political parties and other public associations; prohibition of discrimination against citizens on the grounds of their membership in trade unions; quite a wide range of rights—right of trade unions to protect workers’ labor rights, right to negotiate and conclude collective treaties and agreements in the field of social insurance, social security and health care, right to monitor compliance with labor laws, right to participate in management of public and industrial affairs, and other rights. Dismissal of undispensed chairmen, members, organizers of trade union committees by the employer’s initiative (regardless of the grounds of dismissal), apart from the procedure of labor contract termination established by the Labor Code of the Kyrgyz Republic, is permitted only with the consent of the higher trade union body.

Nonetheless, as in case with the Republics of Belarus and Kazakhstan, legal capacity of trade unions, their associations, primary trade union organizations as a legal entity arises from the moment of their state registration (Article 3) in violation of the provisions of international acts, in particular the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, establishment of a trade union consisting of three or more people is allowed.

Similarly to the Republic of Kazakhstan, Kyrgyzstan applies a principle of associate membership, i.e. primary trade unions and their representative bodies operate under the articles of association of national, inter trade union, territorial or industrial association of trade unions, which contradicts international standards (e.g., ILO Convention No. 87) with regard to the right of workers’ organizations to draft their own charters and administrative regulations, to freely organize their bodies and activities.

Regularly undertaken attempts of state authorities to restrict the fundamental trade unions’ right to organize and hold strikes,28 as well as other labor rights,29 are a wake-up call reflecting position of trade unions in Kyrgyzstan.

To sum up, it should be noted that Russian, Belarussian, Kazakh, Armenian and Kyrgyz legislation, regulating the right to establish and join trade unions, is very similar. For instance, the right to freedom of association is recognized in constitutions of the above-mentioned countries, and special laws on trade unions have been adopted.

At the same time, members of the Eurasian Union have issues related to the freedom of association, such as intervention of public authorities in activities of trade unions (by imposing mandatory state registration, filing statistical and financial reports, etc.) and absence of effective mechanisms of protection against discrimination.

Nevertheless, ensuring workers’ freedom of association should be one of the main priorities in order to create a single market of labor resources within the Eurasian Union and to encourage labor migration, which are the goals set by the Eurasian Union. Migrant worker, independently of the Eurasian Union country where he intends to work, shall be ensured that he has this right to the extent stipulated by the international labor standards and, in particular, by the acts of the International Labor Organization.

Within this framework, the Eurasian Economic Commission as a supranational governing body possesses the authority to draft proposals of further development of integration, including those in the sphere of workers’ freedom of association. These proposals are to be primarily aimed at the exclusion of nationwide elimination of the above-mentioned freedom of association restrictions, creation of effective mechanisms to prevent and reduce discrimination on the grounds of workers’ membership in trade unions.

The ultimate result can only be achieved if an effective system of enforcement of the Eurasian Economic Commission’s resolutions is established: timely amendments into the national legislations aimed at ensuring the workers’ right of association, creating effective control mechanisms over the implementation of international standards in labor regulation and the resolutions of the Eurasian Economic Commission, etc.

T.A. Izbienova is an Associate Professor at Mari State University as well as an Associate Professor at the Interregional Open Social Institute in Russia

M.I. Averyanova is an Associate Professor at Nizhny Novgorod Institute of Management as well as a member of the Russian Presidential Academy of National Economy and Public Administration (RANEPA) in Russia

 

Notes

  1. http://www.eaeunion.org/#about-countries
  2. On August 6, 2015, the Depository of Eurasian Economic Commission said that over the next few days the last note of ratification of this agreement is expected, after which it comes into effect, and the accession of Kyrgyzstan to the EEC will be completed (Russian).
  3. Dogovor o Evraziiskom Economicheskom Soiuze; Polozheniie o Evraziiskoi Economicheskoi Komissii
  4. Appendix No. 1 to Dogovor o Evraziiskom Economicheskom Soiuze.
  5. REBECCA GUMBRELL-McCORMICK & RICHARD HYMAN, TRADE UNIONS IN WESTERN EUROPE: HARD TIMES, HARD CHOICES; VASCO PEDRINA, RANK & FILE PARTICIPATION AND INTERNATIONAL UNION DEMOCRACY.
  6. Ronaldo Munck, Trade Unions, Globalisation and Internationalism, SOCIAL EUROPE, May 30, 2012; P.E. Morozov, Rejunionizacija kak osnova usilenija social'nogo dialoga v zarubezhnykh stranakh v uslovijakh globalizacii.  Probely v Rossijskom Zakonodatel'stve. 2011. - No. 3. 106-110.
  7. Danilenkov i drugie protiv Rossijskoj Federacii: postanovlenie ESPCh ot 30 ijulja 2009 g. Bjulleten' Evropejskogo Suda po pravam cheloveka. 2005. No. 2, 31 – 32.
  8. 365-j Doklad Komiteta po svobode ob#edinenija po delu, No. 2758, iniciirovannomu zhaloboj ot 20 janvarja 2010 goda. Juristy za trudovye prava. Informacionnyj bjulleten'. 2013. No. 96, p. 51; Trudovaja diskriminacija v Rossii: dokazat' nel'zja, i nikto ne zhaluetsja, PAДИO CBOБOДA.
  9. Po informacii s sajta Sledstvennogo upravlenija Sledstvennogo komiteta Rossijskoj Federacii po Saratovskoj oblasti.
  10. Po informacii s sajta Sledstvennogo upravlenija Sledstvennogo komiteta Rossijskoj Federacii po Saratovskoj oblasti.
  11. Case No. 2758 (Russian Federation): Report in which the Committee requests to be kept informed of developments // 365th Report of the Committee on Freedom of Association. Governing Body. 316th Session, Geneva, 1–16 November 2012. 379 – 380.
  12. Report of the Committee on Freedom of Association 375th Report of the Committee on Freedom of Association, International Labour Office, 324th Session, Geneva, 13 June 2015.
  13. Nacional'nyj reestr pravovykh aktov Respubliki Belarus' na 31.07.2015.
  14. Vedomosti Verkhovnogo Soveta Respubliki Belarus', 1992, No. 19. Art. 300; Vedomosti Nacional'nogo sobranija Respubliki Belarus'. 1999. No. 34-35. Art. 518; Nacional'nyj reestr pravovykh aktov Respubliki Belarus'. 2000. No. 23, 2/146; 2000. No. 69, 2/191.
  15. Nacional'nyj reestr pravovykh aktov Respubliki Belarus.
  16. Nezavisimye demokraticheskie profsojuzy Belarusi – lokomotiv social'nykh preobrazovanij? 2012. Vilnus. 22 – 24.
  17. “Global'nyj indeks po pravam trudjashhikhsja 2015 goda”. Presentation of the research at the 104th International Labor Conference in Geneva. Data of 10 June 2015. ITUC Global Rights Index names world’s ten worst countries for workers.
  18. Speech of Labor and Social Security Minister at the conference “O regulirovanii trudovykh otnoshenij i modernizacii profsojuzov Respubliki Kazakhstan” (Astana, 14 March 2014).
  19. Human Rights Watch. Report “Neft' i zabastovki. Narushenija trudovyh prav v neftjanom sektore Kazahstana."
  20. KSPK’s critical analysis of Kazakhstan’s law “O profsojuzakh” forwarded to ILO.
  21. Speech of Labor and Social Security Minister at the conference “O regulirovanii trudovykh otnoshenij i modernizacii profsojuzov Respubliki Kazakhstan” (Astana, 14 March 2014).
  22. MKP’s criticism of Kazakhstan’s draft Law “O profsojuzakh”; KSPK’s critical analysis of Kazakhstan’s law “O profsojuzakh” forwarded to ILO.
  23. Kazakhstan: WFTU Secretariat sends letter of protest to President Nazarbayev.
  24. According to the information from the website of the conference of Armenia’s Trade Unions.
  25. Ukreplenie demokratii i prav profsojuzov v Novykh nezavisimykh gosudarstvakh. Materialy Vseobshhej konfederacii profsojuzov. 25.
  26. Application of International Labor Standards 2014 (I) International Labor Conference, 103rd Session, 2014 / International Labor Office Geneva, Geneva, 52.
  27. http://www.open.kg/about-kyrgyzstan/political-entity/domestic-policy/1288-sovet-federacii-profsoyuzov.html.
  28. For example, the address of the General Secretary of MKP, Sharon Barrow to the Speaker of the Republic of Kyrgyzstan Zhogorku Keneshi.
  29. A new working group will be set up to make amendments to the Labor Code.

 

DISPATCH No. 2, PHILIPPINES – “The Labor Implications of the Philippine Competition Act (2015),” by Jonathan Sale

 August 20, 2016

 The Philippine Competition Act (the Act) was signed into law on 21 July 2015.  Heralded as long overdue (about “twenty years” in the making), it has been claimed that its signing was timely in light of the commencement of the ASEAN Economic Community (AEC) in December 2015.1  The Act appears to have been partly driven by the deeper regional integration that the AEC aims to bring about.  By the looks of it, the Act responds to social changes that have been fostered by globalization as it declares that “efficiency of market competition as a mechanism for allocating goods and services is a generally accepted precept” that serves “the interest of consumers.”2  Apparently, it aspires for social change as its policy declaration is “to attain a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.”3  The Act seeks to “penalize all forms of anti-competitive agreements, abuse of dominant position and anti-competitive mergers and acquisitions, with the objective of protecting consumer welfare and advancing domestic and international trade and economic development.”4

Historically, however, the combination of labor via unions has been challenged under the aegis of competition law. In the United States, for example, the Clayton Act of 1914 attempted to exempt unions from the reach of anti-trust law with the assertion that, “The labor of a human being is not a commodity or article of commerce.”5

Does the Philippine Competition Act apply to combinations of workers or employees?  If so, to what types of combinations of workers or employees does it apply?   In its sole address to these questions the law does not apply to “the combinations or activities of workers or employees nor to agreements or arrangements with their employers when such combinations, activities, agreements, or arrangements are designed solely to facilitate collective bargaining in respect of conditions of employment.”6

This formulation tends to create problems for Philippine collective labor law.  At present, there exists a range of statutory and administrative rules governing combinations of workers not solely for “collective bargaining in respect of conditions of employment” but rather for “mutual aid and protection.”   Philippine collective labor law makes an important distinction between these forms of worker participation occupying loci or points along a continuum.  The Philippine Labor Code provides: 

Art. 253. Coverage and employees’ right to self-organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. 7

Under the relevant implementing rule issued by the Philippine Department of Labor and Employment (DoLE), “‘Workers’ Association’ refers to an association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining.”8  A relatively novel form of worker participation—a combination of ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers for their mutual aid and protection—has evolved in the country.  As currently formulated, the Act appears to apply to this type of combination of workers; which means that the organization of these workers might be deemed an unlawful combination in restraint of trade.

This statutory grant of the right to self-organization to workers not necessarily covered by employment relationships and bargaining units, e.g., informal workers who constitute about 70% of non-agricultural employment in the Philippines,9 is a significant aspect of Philippine law because of the avenue it opens up for formalizing informal workers.  Under the Labor Code and its implementing rules they may organize into a “workers’ association” for “mutual aid and protection of its members,” not for collective bargaining purposes.  They are not mentioned in the exclusionary rule of the Act’s scope of application, which means they might be deemed covered and regarded as combinations in restraint of trade.

Union density is declining in many parts of the world.  Such decline is also occurring in the Philippines where union density (less than 9% of total wage and salaried workers) and workers under coverage of collective agreements (nearly 228,000 workers) are low.10  But membership of workers’ associations is growing over time, which correlates with the high number of small enterprises.11 About 92% of establishments in the country employ fewer than 10 workers.12  To illustrate, the number and membership of workers’ association were 8,237 and 286,354, respectively, in 2004.13  Nearly a decade later as of June 2013 (based on preliminary data), they stood at 32,424 and 1,272,000 reflecting increases of about 294% and 344%, correspondingly.14  These increases also coincide with the high proportion of informal workers.

These developments were apparently overlooked in the crafting of the Philippine Competition Act. The provision (Section 3) that excludes from the Act’s scope and application only combinations of workers for “collective bargaining in respect of conditions of employment” might have adverse effects on the effectiveness of workers’ associations as a form of worker participation. The Act’s current phraseology creates ambiguity as to their status.  Ostensibly, the Act breaks the continuum (of worker participation types) and converts it into a dichotomy between combinations of workers or employees for purposes of collective bargaining and those for purposes of mutual aid and protection; the former exempted from antitrust-labor regulation, the latter within it.  Combinations of such workers for mutual aid and protection are seemingly covered by Philippine competition law and, thus, might be deemed anticompetitive combinations.   Residual law-making and enforcement might help keep the Act compliant with the goal of social justice and human rights under the Philippine Constitution.  Otherwise, legislative amendment might be necessary to address contextual factors, restore the continuum and safeguard worker welfare.

Jonathan Sale is the Coordinator for the Informal Workers Study Group, XXII World Congress, International Society for Labour and Social Security Law.

Notes:

  1. Bobit S. Avila, Finally, we have an anti-trust law!, The Philippine Star, July 23, 2015, http://www.philstar.com/opinion/2015/07/23/1480033/finally-we-have-anti-trust-law.   Francis Ed Lim, A new competition law at last!, Philippine Daily Inquirer, June 25, 2015, http://business.inquirer.net/194066/a-new-competition-law-at-last.
  2. An Act Providing for a National Competition Policy Prohibiting Anti-Competitive Agreements, Abuse of Dominant Position, and Anti-Competitive Mergers and Acquisitions, Establishing the Philippine Competition Commission and Appropriating Funds Therefor, Rep. Act No. 10667, § 2 (2015), http://www.gov.ph/2015/07/21/republic-act-no-10667.
  3. Id.
  4. Id. (emphasis added).
  5. 15 U.S.C. § 17 (1914).
  6. See supra note 2, at § 3 (emphasis added).
  7. Department of Labor and Employment, Department Advisory No. 01, Series of 2015, Renumbering of the Labor Code of the Philippines, as amended.
  8. Department of Labor and Employment (DoLE), Department Order No. 40-03, Series of 2003, Amending the implementing rules of Book V of the Labor Code of the Philippines, Rule I, Section 1 (ccc) (emphasis added).
  9. Jonathan P. Sale & Arlene B. Sale, Changes in Philippine Labour Relations Policy: Convergence or Divergence of Productivity, Flexibility and Welfare?, 25, Econ. & Lab. Rel. Rev. 327, 344 (2014).
  10. Jonathan Sale, Legal Landscape of Unionism in the Philippines, in Rene E. Ofreneo et al, Union Capacity in Organizing, Bargaining and Social Dialogue in the Philippines, July 5, 2013 Report to the International Labour Organization, 13, 21-23 (on file with author).
  11. Id.
  12. Id.
  13. Jonathan P. Sale & Arlene C. Bool, Recent Developments in Philippine Labor Market Governance: Shifting Methods from Command to Collaboration?, 1 OIDA Int’l J. Sustainable Dev., 79, 83, (2010), available at http://ssrn.com/abstract=1672324.
  14. Table 57, Existing Workers’ Organizations and Collective Bargaining Agreements, Philippines: 2011, June 2013, Bureau of Labor & Employment Statistics, Department of Labor & Employment.

 

DISPATCH* No. 1, ISRAEL -- "Employers Prohibited from Voicing Objection to Unions," by Guy Davidov

July 21, 2016

*This contribution first appeared in Revue de Droit Compare du Travail et de la Securite Sociale (2015), and is reproduced here with permission.

Union density in Israel experienced the most dramatic decline in OECD countries, from roughly 85% in the 1980s to 45% in 2000 to 25% in 2012. In response, in the last few years the Histadrut (Israel’s major labor union) intensified its efforts to organize workers in new sectors. At the same time, a new union, Ko’ach La’ovdim (“Power to the Workers”), established in 2007, has managed to create grass-roots excitement toward unionism. It appeared that unions were bouncing back, to some extent. However, employers were not going to accept this without a fight. Many of them have strongly resisted organizing attempts, including by using “union-busting” methods imported from the United States. Although the law made it clear, at least since the 1990s, that employers cannot actively interfere with freedom of association,1 in practice this proved very difficult to enforce.

The struggles of the Histadrut culminated in the summer of 2012 with the organizing campaign at Pelephone Communications Ltd., Israel’s first cellular company and still one of the largest companies in the sector, employing some 4,000 workers. Being part of the “new economy” service sector, and employing mostly young and relatively educated workers, the cellular sector was highly coveted by the union. The time was also ripe for organizing: wide-ranging reforms introduced by the Government significantly intensified competition in the sector, cutting profit margins and creating an expectation for mass redundancies. Workers were thus particularly in need of protection. The company on its part was fearful of losing managerial flexibility and especially of jeopardizing its competitive stance in the non-unionized sector. This led to a bitter fight.

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

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

In a dramatic judgment, the National Labour Court (NLC) decided that employers are prohibited from voicing views against unionization.3 Employers have no say whatsoever on this matter; even the delivery of information which they think is relevant or missing from the discussion is not allowed. The only (narrow) grounds for exception are if an employer believes that the union is making factual misrepresentations; in such a case, it can petition a labor court and ask for permission to correct this misinformation. But the employer is not allowed to do so without a specific judicial permit.

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

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

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

Guy Davidov is the Elias Lieberman Professor of Labour Law, Hebrew University, Jerusalem.

Notes:

  1. See, e.g., Mif’aley Tachanot Ltd. v. Israel Yaniv, 33 P.D.A. 389 (1996) (National Labour Court); Collective Agreements Act of 1957, as amended in 2001, §§ 33h, 33ff.
  2. Collective Agreements Act 1957, § 3.
  3. The Histadrut v. Pelephone Communications Ltd., judgment of Jan. 2, 2013 (Israeli National Labour Court).
  4. Coordinating Chamber of Economic Organizations v. National Labour Court, judgment of July 7, 2014.
  5. For a detailed discussion, see Pnina Alon-Shenker & Guy Davidov, Organizing: Should the Employer Have a Say?, 17 Theoretical Inquiries in Law 63 (2016).