Fundamental Labour Rights, Platform Work and Human-Rights Protection of Non-Standard Workers

The spread of non-standard forms of employment in industrialised and developing countries over the last decades has prompted an extensive debate on how to reshape labour regulation to accommodate these new formats. However, limited attention has been devoted to the access of non-standard workers to fundamental labour rights. This chapter aims at reorienting the debate towards these neglected dimensions of labour regulation. In particular, it focuses on the risks affecting work in the so-called ‘gig’ or ‘platform’ economy, since the relative novelty of these forms of work may obscure the difficulties these workers face in enjoying fundamental labour rights. Platform workers, together with casual workers and some self-employed workers not only are more exposed to violations of fundamental rights but are also often excluded from the legal scope of application of these rights, which are sometimes reserved to workers in an employment relationship. This is particularly true for collective labour rights, as self-employed workers, including sham self-employed persons and platform workers, who are often deprived of full access to the rights of freedom of association and collective bargaining. This happens, for instance, when their collective activities are found to be in breach of antitrust regulation. This chapter maintains that preventing self-employed workers who do not own a genuine and significant business organisation from bargaining collectively is at odds with the recognition of the right to collective bargaining as a human and a fundamental right. Consequently, it argues that only self-employed individuals who do not provide ‘labour’ but instead provide services using an independent, genuine and significant business organisation that they own and manage can have their right to bargain collectively restricted.

Problem setting. For many years, in Ukraine, as in many other countries, standard labour relations prevailed in the field of labour and employment, characterised by stability and duration, subordination and control of the employee to the employer, as well as the availability of social guarantees for employees. However, socio-economic changes, globalisation, the post-industrial revolution, and the development of information technologies that allow the use of labour, in particular, through digital platforms, have led to the formation and spread of non-standard labour relations characterised by instability and the lack of an adequate level of labour guarantees and working conditions, primarily in the areas of remuneration, working hours and rest periods, occupational safety and health, etc. analysis of recent researches and publications. In their studies, labour scholars have drawn attention to the need to consolidate non-standard forms of employment in Ukraine and to comprehensively reform labour legislation: S.V. Venediktov, S.V. Vyshnovetska, L.P. Garashchenko, V.P. Kokhan, Y.I. Svichkariova, O.G. Sereda, Y.V. Simutina, M.M. Shumylo, A.M.Yushko and others. In recent years, several monographic studies have been published on the problems of reforming and improving labour legislation with due regard to the need to ensure proper protection of social and labour rights in the realities of the digital era. At the same time, little or no attention has been paid to the challenges posed by the spread of such employment to the implementation and protection of fundamental labour rights proclaimed by the International Labour Organization, including freedom of association and the effective recognition of the right to collective bargaining; the effective abolition of child labour; the elimination of discrimination in respect of employment and occupation; and a safe and healthy working environment. Purpose of the research is to identify and characterise the challenges and threats of non-standard employment through the prism of basic principles and rights at work that are part of universally recognised human rights. article’s main body. Despite the fact that most of the attention in the world today is probably paid to the issues of access to labour rights and guarantees for so-called gig workers engaged in online platforms, who often face the inability to enjoy these rights, the problems of implementing internationally recognised fundamental labour rights go far beyond platform employment and extend to a much wider area of work that does not fall under the category of standard indefinite full-time employment. For example, in cases of concluding an employment contract with non-fixed working hours, the probability of employees’ “voluntary” refusal to exercise their fundamental rights and respond to possible abuses by the employer is very high and significantly increases the employer’s managerial powers. One of the most acute challenges of the digitalisation of the economy in Ukraine is the development of an adequate mechanism for the exercise by precarious workers, primarily those who work through online platforms, of one of their fundamental rights – the right to associate for the collective protection of their socio-economic interests. conclusions and prospects for the development. The development of the digital economy and the rise of nonstandard employment have led to a broad debate on the scope of labour law, while little attention has been paid to a comprehensive understanding of how these forms of employment affect the enjoyment of fundamental principles and rights at work. Yet, such an understanding is extremely necessary in view of the international community’s recognition of fundamental labour rights as human rights. Non-standard employment, especially when combined with precariousness or precariousness, can make it difficult or even impossible to ensure and implement fundamental ILO principles and rights at work, including freedom of association and the effective recognition of the right to collective bargaining; effective prohibition of child labour; nondiscrimination in respect of employment and occupation; and a safe and healthy working environment. In view of this, proper enforcement of these rights as human rights requires systemic actions by governments and businesses aimed at both limiting the use of non-standard employment and further improving the mechanisms for the implementation and protection of labour rights regardless of employment status.

This article explains the underlying propositions, approaches and perspectives which this volume adopts in examining implementation of fundamental labour rights in the particular cultural context of the Chinese experience. It is, however, emphasized that fundamental labour rights is a deeply European-rooted concept, and when applied to China its parochialism may not do justice to the diversity of labour law development in China and to the role that the international labour standards of the International Labour Organization (ILO) have played in this development. The concept of fundamental labour rights enables an examination of the Chinese labour law issue from different angles with a comparative perspective. This comparative undertaking is based on the assumption that the concept of fundamental labour rights could be approached and appropriated by various actors in different contexts. The broad perspective of implementation covers legislative implementation by national and local legislatures, monitoring by labour inspectorates, judicial implementation by labour arbitration committees and courts as well as application of fundamental labour rights by enterprises and other non-state actors. Recognition of fundamental labour rights can be found at different layers of legal normativity and connected in a hybrid structure so that interaction, dialogue and mutual enforcement among different layers also provide a valuable research subject. Examining fundamental labour rights is important as these rights have the potential, inter alia, to contribute to systematizing and developing the Chinese labour law system. Focusing on them can help identify the most persistent labour market problems and better understand underlying economic and social factors.

The importance of the issues covered in this article is due to the impact of information technologies on the labour sphere, transformation of the features of “classical” labour relations and the need to rethink the categories of “employee” and “employer” in order to ensure the exercise of collective labour rights, such as the right to association, collective bargaining and collective action by all workers regardless of the form of employment, first of all, by dependent self-employed persons. The author emphasises that the ILO, the CJEU in the opinions of their supervisory bodies, and the EU Court of Justice in their judgments use a broad approach to the interpretation of the concept of employee, including self-employed persons, in particular, in the context of exercising the right to association and collective bargaining. The author presents the experience of certain European countries, in particular, France and Poland, in terms of legislative consolidation of fundamental labour rights for self-employed persons. The article demonstrates that courts in different jurisdictions have different approaches to resolving the issue of the legal status of platform workers using the example of the decision of the Supreme Court of the United Kingdom and the Spanish court in the Deliveroo case. It is stated that in Ukraine today, one of the fundamental labour rights - the right to join a trade union de jure is not limited by the existence of an employment relationship or the status of an employee. At the same time, the right to collective bargaining, collective bargaining agreements and the right to collective action to protect one’s rights, which are an integral part of the right to freedom of association, is de facto only possible for those who are in an employment relationship based on an employment contract and have the status of an employee. As a solution to this problem, it is proposed to introduce a broad category of “working” or “employed” in national legislation, which will be used exclusively for the purposes of unionisation, exercise of the right to collective bargaining, conclusion of collective agreements and collective action. Such a definition should be separated from the definition of the narrow concept of an employee under an employment contract used in the context of individual labour relations.

The principle of human dignity, as never before, has to be pulled out of its ethereal plane. Empty rights do not contribute to the true civilization progress coveted by all. So that mankind walks faster towards the achievement of the values settled along the slow process of political and legal awareness that resulted in the construction of catalogs of fundamental rights, the full effectiveness of legal rights shall not be avoided. The indispensable protection to human dignity must be enforced with conviction. The issue of the effectiveness of fundamental principles significantly affects workers' legal protection. The ILO Declaration on Fundamental Principles and Rights at Work and the guidelines on decent, healthy and safe work, which define minimum international labour standards, have not been complied with in different countries, severely compromising the protection to workers' dignity. The applicability and enforcement of fundamental labour rights must be guaranteed to fight contemptible cases of slavery-like work conditions, workers' discrimination, retrenchment to free labour union and collective bargaining, child labour, unsafe work or under degrading conditions, among several other unfair and infamous situations experienced in the work environment. In a globalized economic scenario, where financial capitalism is emphasized, governments have to assume, as never before, their role in the effective protection of human rights at work. Accordingly, in view of the supremacy and inalienability of fundamental rights as essential principles of administrative activities of the Rule of Law, the role of the Government is to induce and shape social conducts. The present academic paper argues and claims that governments should have a decisively active role, fomenting and enforcing the effective compliance with fundamental rights at work, notably by applying legal instruments as the labour clause in public contracts. The labour clause expresses and affirms the cogent and binding force that arises out of public contracts and contractual provisions, and pulls subjective rights out of their abstract plane, establishing an actual and mandatory connection grounded on specific obligations immediately enforceable and aimed to realize fundamental rights at work and protect the dignity of workers, and applying immediate sanctions on the offender of such legal provisions. Therefore, it produces real and concrete legal developments to labour protection. The outlines of the contemporary conception of socially responsible public contracts require the adoption of the labour clause for the enforcement of fundamental labour rights at work. The characteristics and specificities of the new legal regime, which comprises administrative contracts, express and legitimize the full pertinence and legality of including the labour clause among their provisions. In this context, the compliance with international workers' protection standards is mandatory to a sustainable development. Socially responsible public contracts that value and enforce the protection to workers' dignity may effectively influence economic activities, promoting social justice in labour relations that emphatically claim for the structuring of employment and labour standards that respect human rights at work.

Based on their sustainability reports (SR), this study investigates Indonesian stated-owned companies’ compliance with fundamental labour rights and corporate governance (CG). Empirical and content analysis was carried out based on the Global Reporting Initiative (GRI) standard index published by 41 state-owned companies from 12 clusters in Indonesia. The study also compared the disclosure performance of several industrial-sector clusters by measuring each cluster’s total compliance rate. This study also analyses whether the high corporate governance disclosure will lead to a high level of fundamental labour rights reports. Using content analysis and multivariate analysis of WarpPLS, this study finds that companies tend to disclose clearly basic requirements on fundamental labour rights, such as information about new hires and employee turnover and essential information on corporate governance structure and composition (Martin et al., 2016; Sikka, 2008). In contrast, companies tend to hide information about reasonable notice of significant operational changes and critical concerns in companies. Based on the industrial sectors, the company in the energy, oil, and gas cluster have the highest level of compliance concerning corporate governance and labour disclosure. Then, this study also discovers that companies with high compliance levels on corporate governance disclosure tend to inform more in labour rights activities.

This chapter examines the extent to which there can be said to have been implementation into Chinese labour law of “fundamental labour rights” within a framework of the ILO’s international standard-setting activities. Against a background of dramatic developments for labour law in the People's Republic of China (PRC)over the past two decades, modern arrangements for monitoring, supervising and enforcing labour rights are considered from both institutional and normative perspectives. The relationship between China and the ILO is explored from its nationalist pre-1949 origins through to resumption of active PRC engagement with international standard-setting after 1983. Consideration is given to formal ratification of “core” ILO Conventions, although it is stressed that merely compiling an “inventory” of PRC ratifications in this regard fails to reflect the extent to which Chinese labour law derives inspiration from a broader range of ILO instruments and international experience. There is clear evidence of influence from the international level upon the content and formulation of modern PRC labour law provisions. Consequently, the enquiry into whether, how, and to what extent the PRC implements ILO-inspired (or any other) labour rights, has to be directed to the effectiveness of the domestic framework for monitoring, supervising, and enforcing labour law rights generally. While there has been significant progress in relation to delivering “individual employment rights”, the same cannot be said in relation to “collective labour rights” in the “Western” sense. The chapter concludes by reflecting upon the prospects for further progress through what is now widely described in terms of “social management” for the PRC.

INTERNATIONAL union rights Page 3 Volume 21 Issue 3 2014 FOCUS ❐ TRADE AGREEMENTS AND THE LABOUR MOVEMENT Labour Rights and Trade: Raising Standards for Workers? Labour rights provisions in trade agreements have become more commonplace JEFFREY S. VOGT is Legal Advisor in the Department for Human and Trade Union Rights with the International Trade Union Confederation in Brussels imposed if a country fails to take the actions recommended by the arbitration panel. The approach taken by the EU in recent agreements is markedly different. While EU trade agreements include somewhat stronger standards than US agreements, EU ‘enforcement’ mechanisms are based entirely on dialogue and contain no dispute mechanism should that fail. The labour provisions in recent EU trade agreements, such as the EU-Korea FTA or the Comprehensive Economic and Trade Agreement (‘CETA’) between the EU and Canada require each party to ‘seek to ensure that those laws and policies provide for and encourage high levels of … labour protection, consistent with the internationally recognised standards or agreements’ and ‘shall strive to continue to improve those laws and policies ’. The concept of ‘labour’ is broader than in the US, as it also refers to the ILO Decent Work Agenda, which also contemplates social protection , social dialogue and job creation. The parties also ‘reaffirm the commitment’ under the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work, as well as to commit, in accordance with their membership in the ILO and the ILO Declaration on Fundamental Principles and Rights at Work to ‘respect, promote and realise’ in their laws and practices the principles concerning the ILO fundamental rights. The parties also reaffirm their commitment to effectively enforce those ILO conventions that each party has already ratified and commits to ‘make efforts’ to ratify the fundamental and ‘up-to-date’ conventions. As to implementation and enforcement, the EU-Korea FTA, for example, requires the parties to commit to ‘reviewing, monitoring and assessing the impact of the implementation’ of the agreement. It also requires a civil society forum to be convened each year including representatives from ‘domestic advisory groups’, which include labour representatives. A party may request consultations and parties are to ‘make every attempt to arrive at a mutually satisfactory resolution’. If the party wants to press the matter further, it may request that the Committee on Trade and Sustainable Development be convened to find a resolution. If that fails, a panel of experts may be convened, which will examine the matter and issue a report with recommendations . However, if the party complained against refuses to act, there is no enforcement mechanism under the agreement to compel compliance. Under the CETA, a provision is included to review the effectiveness of the implementation of the trade and labour chapter, including a possible review of the measures for settling disputes. For good reason, trade unions in the US, EU and Canada continue to criticise the labour proI n 1994, the North American Free Trade Agreement (between Canada, Mexico and the United States) entered into force, marking the first ‘free’ trade agreement to include enforceable labour standards in addition to the numerous commercial provisions. The labour side agreement , the North American Agreement on Labour Cooperation (‘NAALC’), was a last-minute deal brokered by the Clinton White House in an effort to bring sceptical Democrats in the US Congress to support the agreement. It did not require countries to raise their labour standards to a common floor, but instead to enforce one’s own laws as they related to a number of principles, which include what are now defined by the International Labour Organisation (‘ILO’) as fundamental labour rights, and to ‘strive’ to improve those laws over time. The enforcement mechanism is also limited and only violations related to occupational safety and health, child labour or minimum wage technical labour standards can be taken all the way through the dispute settlement process. No case has ever advanced beyond the first step, ministerial consultations, though public hearings have been convened to allow the parties to present evidence and establish a record after which a public report is issued with recommendations . The rationale for the NAALC was to attempt to avoid unfair...

This book attempts to systematise the present interrelationship between fundamental rights and the EU internal market in the field of positive integration. Its intention is simple: to examine the way in which, and the extent to which, fundamental rights protection is realised through EU internal market legislation. To that end, the analysis is conducted around four rights or sets of rights: data protection, freedom of expression, fundamental labour rights and the right to health. The book assesses not only what substantive level of protection is achieved for these fundamental rights, but it also estimates whether there is a ‘fundamental rights culture’ that informs current legislative practice. Finally, it asks the overarching question whether the current state of harmonisation amounts to a ‘fundamental rights policy’. The book offers a much more varied picture of the EU’s fundamental rights policy in and through the EU internal market than perhaps initially expected. Moreover, it builds the case for a more conscious approach to dealing with and enhancing fundamental rights protection in and through internal market legislation, and advocates a leading role for the legislature in the establishment of an internal market that is firmly based on respect for fundamental rights.

The competitiveness of the market, the advance of capitalism, and the new digital technologies have made business organizations change the productive mode, as well as the inter-company relationship and work relations, reviewing concepts and paradigms that were petrified before. This article aims to confront the new perspective of teleworking and the guarantee of fundamental labor rights, through the contemporary understanding of the fundamental right to decent work, aiming at preserving workers' health in a socio-environmental dimension. The proposed investigation is legal-descriptive, aiming at decomposing a legal problem into its various aspects, relationships, and levels. In case, the object is the current analysis and understanding of the challenges of protecting teleworkers in a socio-environmental dimension of decent work. It is intended to demonstrate the extension of fundamental labor rights to the teleworker, to promote the improvement of the worker's living conditions, curbing social marginality.

336This paper deals with the problem of European companies trading with companies in developing countries where fundamental labour rights are being violated. For a long time, this issue was left to the responsibility of European companies on a voluntary basis. Recently, a shift towards hard law in the sense of legal obligations has become visible. The European Commission started a legislative process in 2021 and published a proposal for a due diligence Directive in February 2022 to which the European Parliament responded in first reading on 1 June 2023. In the meanwhile, France and Germany passed legislation, and in the Netherlands and Belgium a private member’s bill was submitted by members of Parliament. All in all, a lot is happening on this subject at both European and national level. Much has been written about the proposals as such but the issue of fundamental labour rights has been underexposed. This paper fills that gap. Central question is as to what extent legislation will lead to an improvement in compliance with fundamental labour rights in the cross-border supply chain. This paper will explore this question on the basis of the said European and national legislative initiatives. It will become clear that the solution lies much more in a mix of hard law and self-regulation and that in the search for a smart mix, lessons can be learned from the Dutch system of private sector-specific agreements.337

The aim of this chapter is to explore whether the European Charter of Fundamental Rights (ECFR) can improve the protection of trainees by broadening the scope of national labour laws or the labour directives of the European Union (EU), or by creating new labour rights directly applicable to trainees. I argue that, despite the fundamental nature of many important labour rights, the limitations to the application of the ECFR, as well as the restrictive interpretation of its provisions, reduce the ability of the charter to improve the rights of trainees. However, the ECFR is a useful tool for the Court of Justice of the EU to broaden the personal scope of secondary EU legislation, and to contest national limitations to the application of fundamental labour rights. If EU and national labour law provisions were consciously interpreted in the light of fundamental rights, the rights of trainees would improve slightly.

In the historical and current transformation discourses in South Africa and Namibia, the concept of decolonisation is no longer a mere abstract concept. Decolonisation is now a fundamental policy and regulatory imperative that is heavily centred on, among other things, the land question and debates around the historical as well as present-day use of indigenous cheap and unskilled labour in underpaid sectors of industry –particularly the mining sector. During the colonial era, as the mining industries in South Africa and Namibia expanded, a substantial number of migrant labourers and local workers entered the mines. To safeguard these mineworkers’ legal rights, labour laws were passed. Despite the implementation of such labour laws, regular strikes were a feature of the mining industries in South Africa and Namibia at the time. In the post-colonial dispensation, the South African mining industry has been characterised by numerous strike actions, while in Namibia, widespread dissatisfaction with working conditions has been noted. This raises the question of whether or not South Africa and Namibia have made progress in defending mineworkers’ labour rights. This question is critical when viewed through the lens of a post-colonial society governed by a constitutionalised labour law framework. While there has arguably been a noticeable improvement in mineworkers’ employment conditions, labour-related inequities continue to characterise the mining industries in South Africa and Namibia in the post-colonial era. Profiteering, capitalism, safeguarding the security of tenure of foreign mining corporations, and the persistent need to ensure the ease of doing business in the mining sector appear to take precedence over defending mineworkers’ rights. Thus, this article explores the labour rights discourse developed by South African and Namibian mineworkers, as well as the applicable labour legislation. A strong case is made for reconsidering the extent to which South African and Namibian labour laws have been decolonised. This is done in a manner that is attentive to investment security and sustainable growth of the mining sector in the two countries as well as the realisation of African mineworkers’ fundamental labour rights.

Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading ‘solidarity'. In this article two basic questions will be addressed. The first question will address the ‘old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test ‘light' in order to limit the interference of EU law with the essence of fundamental rights.

The present paper examines two important and up-to-date topics in labour law. First, the analysis focuses on the general aspects and the significance of the European Pillar of Social Rights (EPSR), which is the most recent legal source - except for a couple of directives and regulations based on the EPSR itself - in the social policy of the European Union. It contains several fundamental labour and social rights and one of its main aims is to promote and to strengthen these rights and values throughout the Members States. At the same time, the EPSR is already having an impact on national labour and social law systems in the EU because of some new pieces of labour law-focused legislation. One of these new laws is the Directive (EU) 2019/1152 of the European Parliament and of the Council (20 June 2019) on transparent and predictable working conditions in the European Union that contains very important new norms regarding both the possible broad concept of the "employment relationship" and the workers' fundamental rights. Second, the paper focuses on some relevant questions of the Hungarian labour law as a case study, analysing the possible - and already visible - impact of the EPSR and the aforementioned new directive. The paper tries to answer some questions based on the paper's hypotheses centered on the possible change in the Hungarian regulation and legal interpretation taking into account the EPSR and the already cited directive. The analysis is based on the relevant regulations and laws, and the outcomes of the research focus both on some general remarks regarding the EPSR and the Directive (EU) 2019/1152 joint with the conclusions that can be drawn paying attention specifically to the Hungarian labour law system with special attention to the workers' fundamental rights.