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About this book

A stimulating, authoritative account of international employment law written by a leading figure who for many years has shaped global policy, striving to implement fairer working conditions worldwide. We are expertly guided though the context and development of labour law, making this book ideal for study or research.

Table of Contents

Chapter 1. Labour law at a crossroads

Abstract
Rights are not eternal realities that exist out of space and time. They are social phenomena which must be considered in a particular historical context, and it is within this context that their birth, development and vicissitudes should be analysed. History is made up of the interaction of many forces — social, economic, political, cultural and ideological — to which can be added the often crucial role played by some outstanding leaders and personalities. Any alteration in these forces can and frequently does lead to a change in the law. This book examines some of the key changes that labour law has undergone in the last three decades in the light of overall societal changes, and the challenges it now meets at the beginning of the twenty-first century. Labour law, like more general social regulation, undoubtedly epitomizes one of the greatest social achievements of the twentieth century. However, it comes as no surprise that today it stands at a crossroads.
Arturo Bronstein

Chapter 2. Who is protected by labour law?

Abstract
Workers in the informal economy are among the weakest and most vulnerable groups of workers. Most of them have a very low income, their jobs are unstable and their conditions of work are precarious. Very rarely are they eligible for health and social security protection. The challenges of the informal economy are manifold, but our focus here is on those posed for labour law.
Arturo Bronstein

Chapter 3. Security of employment

Abstract
Termination of employment and, more particularly, the protection of workers against unfair dismissal has been for many years one of the most sensitive issues in labour law and is still very controversial today. On the one hand, protection against dismissal is seen by most workers as a crucial guarantee, as dismissal can lead to dire financial consequences, particularly if dismissed workers cannot claim unemployment insurance, as is the case in a great many countries. In addition, protection against dismissal can play a systemic role in labour law to the extent that it effectively protects workers against abuse by the employer in the employment relationship. Thus in a termination-at-will system, such as is used in the United States workers who refuse to accept changes imposed by the employer to the terms or conditions of their contracts of employment can be easily dismissed. By contrast, in a legal system where workers are protected against unfair dismissal, in principle this is not possible, or at least it is made more difficult. It is true that, even in the absence of statutory protection (or in certain cases of protection developed through case law), workers can still be protected against dismissal by their trade union, and in fact in a number of countries security of employment is an important negotiating issue. However, not all workplaces are unionized; on the contrary, in a great number of countries the majority of workers are not unionized, so that trade unions are not in any position to protect workers against abuses, including that of unfair dismissal.
Arturo Bronstein

Chapter 4. Global trade and labour law

Abstract
The relationship between international trade and labour norms is not by any means a new subject. Indeed, the links between trade and labour were already implied in David Ricardo’s theory on comparative costs, formulated in the eighteenth century, and it was in 1788 that Jacques Necker, a Swiss banker and Minister of Finance for the French King Louis XVI, argued that the abolition of Sunday as a day of rest could give a competitive edge to a country’s economy provided other countries did not do the same.1 Later on, during the nineteenth century, several industrialists such as the British Robert Owen and the French Daniel Legrand launched calls for an international regulation of labour on the understanding that countries that wished to improve the situation of their working classes would suffer from competition by other countries which did not. This reasoning was common wisdom for a long time, and in fact still stands. It is very likely that fear of international competition was one major reason that prevented many countries from undertaking measures to correct what even in the nineteenth century were considered the excesses of liberalism. It is worth noting that during the nineteenth century, apart from measures aimed at limiting child labour and night work by women in factories, the State only legislated to reduce working time in the civil service, where there was no risk of international competition.
Arturo Bronstein

Chapter 5. Legal subordination and the fundamental rights of the person: an uneasy cohabitation at the workplace

Abstract
All States that have written constitutions (the great majority) recognize that certain rights need to be endowed with especially strong protection. Countries that do not have written constitutions, such as Israel,1 New Zealand and the United Kingdom, acknowledge, however, the existence of certain rights which are given precedence above all other rights.2 This is largely based on the acceptance of international human rights covenants, many of which have been adopted within the framework of the United Nations,3 while others have been adopted by specialized UN agencies such as the ILO (the fundamental Conventions), and still some others by regional organizations such as the Council of Europe4 and the Organization of American States.5 The United Kingdom, for example, has passed the Human Rights Act 1998 (HRA) in which a list of rights and fundamental freedoms is set out in accordance with the European Convention on Human Rights.6 While a number of constitutions, such as those of Australia and the United States of America, do not formally declare a list of fundamental rights, they have been implicitly or explicitly recognized as such in a number of landmark judicial decisions. Whether the fundamental rights are also implied beyond the bounds of legislation, because they fall within the domain of natural law, is a matter for academic discussion.
Arturo Bronstein

Chapter 6. Regional perspectives

Abstract
Until the late 1970s, international labour law was made up almost exclusively of ILO standards. While this is still so in many countries, it is no longer the case in the European region, because European Community (EC) law in the field of labour and employment nowadays has a significant bearing on the shaping of domestic law in the 27 European Union Member States1 and beyond. EC law is also relevant for three of the four European Free Trade Area (EFTA) members that have agreed to set up the European Economic Area (EEA)2 with the EU. It is also widely used by several other States in Europe, who — though not EU Members — refer to the acquis communautaire when they review and revise their domestic law, including labour law. This is certainly the case for EU candidate countries Croatia, Turkey and the former Yugoslav Republic of Macedonia, as well as for Albania, both entities of BosniaHerzegovina,3 Montenegro and Serbia, whose labour laws draw inspiration from EC law in many respects. Therefore, when one talks about international labour law, it is now essential to give due consideration to international legislation and overall social and labour policies adopted within the framework of the European Union (see box 6.1), as well as to ILO standards. It is equally indispensable to be acquainted with an increasingly important number of landmark decisions by the European Court of Justice (ECJ).
Arturo Bronstein

Chapter 7. Final remarks

Abstract
Every period of history entails changes, and these bring with them their quotas of promises and hopes, of risks and anxieties, of challenges and answers. The beginning of the twenty-first century is no exception. If we let ourselves be overtaken by pessimism, we cannot help but believe that in the field of labour law the quota of risks and anxieties is greater today than that of promises and hopes, and the proportion of challenges is greater than that of answers.
Arturo Bronstein
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