Area Of Labour Law Research Articles

Специальная дисциплинарная ответственность работников сферы обеспечения безопасной жизнедеятельности населения

His work is devoted to the consideration of the issue of distribution and the presence in certain branches of labor legislation of the norms of special disciplinary responsibility relating to participants in labor relations in the field of ensuring safe life. Purpose. Analysis and generalization of the norms of special disciplinary responsibility in the field of ensuring the safe life of the population. Methodology. The basis of this study is a combination of general scientific and special-legal research methods. Among the general scientific methods used, it is possible to name analysis, dialectical and structural-functional methods. In addition to the above methods, such special-legal methods of cognition were also used: formal-legal, comparative-legal, historical. Results. The author states the presence of various non-systematized criteria for the application of special disciplinary liability in the considered areas of labor law, the presence of multiple norms that were previously subject to change and cancellation, the absence of clear prospects for the further development of special disciplinary liability in the sectors under consideration. Conclusion. There is a legal need to streamline relations in the field of ensuring safe life, including the development of unified legal approaches in the application of disciplinary measures, including the extension of such measures to all industries mentioned by the legislator under clause b) of part 1 of Article 413 of the Labor Code of the Russian Federation.

NON-UNION REPRESENTATIVES OF EMPLOYEES

The subject of the article are issues concerning the employees representatives chosen in the manner adopted by the employer. In the area of labor law, non-union representatives of employees are in some respects inferior to trade unions. First of all, they are of a subsidiary nature. They are established in the absence of trade union organizations in order to take specific actions, after which their mandate expires. Sometimes these representations, like trade unions, are at liberty to conclude an agreement, and sometimes their competencies are limited to provide counsel. However, in the matter of social security, the legal position of the non-union representatives of employees very often is similar to that of trade unions

Freedom of Religion, Religious Employment, and Conflicts of Rights: Europe at a Crossroads

Abstract Religious communities and churches have traditionally been significant sources of employment. Many European countries have found ways to integrate into their legal systems particularities of religious employment that are alien to other areas of labor law. Until recently, constitutional courts have been reluctant to question the right of churches to define the occupational requirements of their secular employees, but the recognition of church autonomy in religious employment has not been straightforward in the European Court of Human Rights and the Court of Justice of the European Union. This paper provides some reflections on where Europe may be headed in this field, and whether well-tested principles, such as denominational neutrality, may offer some insight on how to address the still unresolved conflict between important human rights: freedom of religion and the right to autonomy of religious employers, and the individual fundamental freedoms of their employees.

ACHIEVEMENTS AND PROSPECTS LEGAL OPINION AND LEGISLATION OF UKRAINE IN THE FIELD OF LABOR PROTECTION

The article is devoted to the achievements and prospects of legal thought and legislation of Ukraine in the field of labor protection. The study of achievements and prospects of legal thought and legislation of Ukraine in the field of labor protection is based on both general scientific and special legal methods of scientific knowledge. In retrospect, a digest of the main regulations in the field of labor protection, in particular: the Labor Code of Ukraine in the field of labor protection, as well as other legislative acts of Ukraine («On Labor Protection», «On compulsory state social insurance»).A review of legal research in the field of labor protection, presented by the leading scientific centers of our country, in particular, Kyiv, Kharkiv and Odessa schools of labor law. It is believed that at the beginning of the third millennium the range of problems of legal research in the field of labor protection has significantly expanded. Therefore, it was stated that the Ukrainian scientific community has made many steps forward in this area of labor law, in particular, on labor protection. At the same time, the latest comparative legal research in the field of labor protection is promising. After all, comparative legal research in the field of labor protection: will direct to compare the same or similar legal rules of the analyzed countries in the field under study; identify patterns and trends in the development of such legal rules; can be a «platform» for the introduction in Ukraine of the best legislative experience of foreign countries in this area. Many current legal issues in the field of labor protection require a «fresh» conceptual understanding, new legislation in the field of labor protection – theoretical justification, and the conclusions and recommendations of scientists – the implementation of Ukrainian legislation in this area.

THE WORK – LIFE BALANCE IN THE EUROPEAN UNION WITH FOCUS ON PARENTAL AND PATERNITY LEAVE

The paper deals with the social policy of the European Union, specifically the directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU. And it is considering the changes that need to be made in the area of labour law, especially concerning the Labour Code, and partially in social security in the Czech Republic and the Slovak Republic, in connection with the requirement to transpose this directive. The aim of the paper is to evaluate the valid legislation of the Czech Republic and Slovak Republic in the monitored area. Key words: social policy, European Union, work-life balance, directive, parental leave, paternity leave, carers ́ leave, social security.

Current Perspectives Concerning the Autonomy of Will while Concluding a Fixed-Term Employment Law Relationship

Abstract The present text focuses on selected issues with regards to the private law principle of the autonomy of will and its manifestations within the area of labor law. More precisely, its limitations are analysed in the event of concluding an employment law relationship for a fixed term. The major restriction in the given context is seen in the requirement of one of the contracting parties to be procedurally active (while performing the respective juridical act) so that the anticipated legal consequences could be achieved. Firstly, the following paragraphs briefly deal with the general position of Czech labor law within the national regulation, in order to introduce the relevant legal context. Secondly, the main scope of the text represents limited analysis of a current fixed-term employment law relationship regulation from both the national (Czech) and supranational (EU) perspectives. Most importantly, the respective provisions arising out of applicable laws on the domestic level (the Czech Labor Code) have been confronted with those existing on the EU level (Directive 99/70/EC). Therefore, the desirable accordance of the former with the latter could be proven. As far as no less significant practical aspects are concerned, the final part points out actual challenges related to presupposed legal conversion of a fixed-term employment law relationship (based on the concluded employment contract) into an indefinite one. In the light of recent case law which will be mentioned, the conditions as prescribed in the Czech Labor Code are not interpreted unanimously, which naturally affects its application in practice in a more negative manner.

The Dayton Agreement and social reform: Omne principium difficile est

The Dayton Agreement rests on the principle of establishing a self-sustaining system that respects the multinational and multiconfessional structure of the population of Bosnia and Herzegovina, composed of entities with independent constitutive, legislative, executive and judicial functions. The organisation and functioning of the constitutionally-determined institutions of power in BiH is based on the constituent nature of the nations, enclosed in amendments to the entity constitutions made after the 2000 Decision of the Constitutional Court on the Constituency of Peoples, which regulate representation and the manner of the protection of the interests of the peoples. This article proceeds from the point that vital discussion on constitutional regulation is leading to a marginalisation of the discussion on harmonising domestic legislation with the EU acquis, conditio sine qua non in terms of fulfilling the requirements of the Stabilisation and Accession Agreement, not least in the area of labour law, and gaining admission to the EU. Above all, society is only changed through reform in which - panta rei - everything flows.

The Reform of Chinese Migration Law and the Protection of Migrants’ Rights

With the adoption of the 2012 Exit-Entry Administration Law of the People’s Republic of China implementing legislation and institutional changes, the Chinese migration law regime underwent fundamental reformation. Streamlined application procedures that are available online and clarified competences have increased efficiency whereas the classification scheme of different categories of foreign nationals has enhanced transparency. This chapter outlines the development of Chinese legislation governing foreign nationals and the changes of the overall legal framework. Further, we will analyse the level of protection of rights of foreign nationals in the area of labour law and legal remedies against measures taken on the basis of the Exit-Entry Administration Law. We argue that recent reforms have been more symbolic than functional and that the protection of rights of migrants has not been significantly improved by recent reforms. The Chinese legislator has taken into account foreign immigration law, in particular legal regulations of typical immigration countries such as Australia or Canada. However, such legal transfer appears to be rather superficial, as the effects of new legal regulation do not deviate substantially from the effects of the previous legal framework. With regard to international law, China has not ratified the Convention on the Protection of the Rights of Migrant Workers and does not model the protection of labour rights of foreign nationals on the equal treatment principle as it is embodied in the Convention. However, China voted for the Global Compact for Migration after being actively involved in its drafting process and further committing itself in this context to improve national migration legislation.

Vyjadrenie závislej práce v poisťovacom systéme SR

The current period is characterized by an increase in the performance of dependent work its new forms supported by the information technology. These new forms, due to guaranteeing the social protection, require a change of approach both in the area of labour law and in the field of social protection systems based on the insurance policy. The Slovak legislator undertook extensive changes in the insurance system between the years of 2011 and 2013, linking the definition of the insurance category of employee to the tax classification of income from the employment. The contribution focuses on and evaluates the impact of this change on the expanding group of protected persons exercising employment in selected types of legal relationships, and in particular for persons carrying out activities on the basis of agreements on work performed outside the employment relationship, including status exceptions (i.e. beneficiaries of basic pension benefits and pupils / students performing temporary occasional or seasonal work) and managers (and associates) of limited liability companies. The contribution also shows the lack of readiness and systemic consistency of the legislation regulating the coexistence of the employment and the entitlement to the payment of certain benefits from the social insurance system (maternity benefit and early old-age pension).

근로형태의 다양화와 노동법의 대응

The management techniques for diversifying working types in management have been developed and used in practice, but management has a different area of interest compared to labor law. In other words, management is not interested in the various legal issues that arise from working relationships, so ultimately there are clear limits to the protection of workers. Therefore, changes in the working contract relationship and the protection of the worker concerned due to contract subcontracting are not areas of management but areas of labor law. Nevertheless, considering the results of research in the field of labor law so far, it is true that the labor law’s reasoning under the premise that the labor contract forms a working relationship, but under the condition of establishing a working relationship through contract or contract of attorney, has actually not been carried out properly.BR Therefore, it will be necessary to reexamine the system of the Korean Labor Law, which has developed around job security and improvement of working conditions through legal examination of diversification of working types, such as subcontracting of labor contracts in the future. It will also be necessary to lay the basis for labor law management techniques in management studies that seek to diversify their work forms, and to present legislative solutions that are faithful to the fundamental purpose of the labor law, namely worker protection.

Dyskryminacja w dostępie do pracy ze względu na wiek – osoba starsza w pracy

Dyskryminacja w dostępie do pracy ze względu na wiek – osoba starsza w pracy. Dyskryminacja ze względu na wiek określana jest angielskim terminem ageizm. Pojęciem tym określa się zespół zjawisk związanych ze stereotypizacją i dyskryminacją osób ze względu na osiągnięty przez nich wiek. Ageizm oznacza zestaw przekonań, uprzedzeń i stereotypów mających swe podstawy w biologicznym zróżnicowaniu ludzi, które dotyczą kompetencji i potrzeb osób w zależności od ich wieku. Ageizm przejawia się szczególnie w obszarze prawa pracy jako: dyskryminacja ze względu na wiek w procesie rekrutacji, dyskryminacja w dostępie do szkoleń w zatrudnieniu, zwalnianie z pracy po osiągnięciu wieku emerytalnego, zachęcanie do dyskryminacji w miejscu pracy, molestowanie osób starszych w miejscu pracy, okres ochronny na rynku pracy jako bariera przed zatrudnianiem. Ageizm jest zatem zjawiskiem społecznym zdefiniowanym prawnie i uznanym na gruncie prawnym za zdarzenie podległe negatywnej ocenie. Niniejszy artykuł jest próbą analizy zjawiska dyskryminacji w dostępie do pracy ze względu na wiek.

CONTRATO REALIDAD DE MADRES COMUNITARIAS: PARADIGMA DE LA SENTENCIA T480/16 DE LA CORTE CONSTITUCIONAL

La primacía de la realidad sobre las formas, es un principio de origen constitucional que se aplica en diferentes aristas del derecho laboral, no obstante, este articulo analiza la aplicación del mismo, pero únicamente desde la perspectiva de la prestación de servicios efectuada por las madres comunitarias, las cuales constituyen un sector significante de la población colombiana, que ha sido marginado y violentado en sus derechos mínimos e irrenunciables. Se pretende evidenciar las circunstancias laborales deplorables en que esta población se encontraba inmersa tanto antes como después de la promulgación de la sentencia T-480 de 2016, mediante la cual la Corte Constitucional declaró la existencia de un verdadero vinculo empleaticio entre las madres comunitarias y el Instituto Colombiano de Bienestar Familiar, sentencia que fue declarada parcialmente nula por esa misma corporación.

The Law-Technology Cycle and the Future of Work

Features of the ‘fourth industrial revolution’, such as platforms, AI and machine learning, pose challenges for the application of regulatory rules, in the area of labour law as elsewhere. However, today’s digital technologies have their origins in earlier phases of industrialisation, and do not, in themselves, mark a step change in the evolution of capitalism, which was, and is, characterised by successive waves of creative destruction. The law does not simply respond to technological change; it also facilitates and mediates it. Digitalisation, by permitting the appropriation of collective knowledge, has the capacity to undermine existing forms of regulation, while creating the space for new ones. It may erode the position of some professions while enabling others, complementary to new technologies, to emerge. It is unlikely to bring about the redundancy of forms of labour law regulation centred on the employment relationship. We appear to reaching a point in the law-technology cycle where push-back against regulatory arbitrage can be expected.

Dylematy na tle prawa do wypoczynku w zatrudnieniu niepracowniczym typu cywilnoprawnego

The employers, in face of occurred in recent years market and economic difficulties, use not only contracts of employment for specified time, but also go beyond area of labor law. This is done through extensive use of, among the other things, employment on the basis of civil law contracts. Economic status of these workers, in particular their continued economic dependence of the employing body, is often close to employment regulations, in particular in the context of long-lasting and time-consuming legal relationships. Meanwhile, civil law regulations, which these employees are subject to, do not provide them sufficient protection. The subject of particular interest within indicated phenomenons and trends are provisions concerning right to rest in respect of de lege lata (explanation) only to employment within the framework of the employment relationship. It is reasonable to indicate how in practice this right is realized by people performing work on the basis of civil law contracts. The Constitution, giving each person the right to health and life protection, sets out justification for the partial application of protection regulations standards in relation to “non-workers”.

«Пространство» гражданского законодательства как проблема развития частного права

Monopolization and expansion of civil law has no clear
 designation in science. But the problem of expanding of spatial boundaries
 of private law does exist. Introduction of division of legal entities
 and corporations unitary organization will have a serious impact on the
 expansion of private law in the area of labor law. The author denotes
 the problem of expanding forms of participation of the state in the sphere
 of private law.

Migrant Domestic Workers in Egypt: A Case Study of the Economic Family in Global Context

Migrant Domestic Workers in Egypt: A Case Study of the Economic Family in Global Context

Reflexive Governance and European Company Law

AbstractThe use of reflexive forms of governance is growing within the EU, in particular as the open method of coordination (OMC) is applied to a wider range of contexts. Reflexive approaches view diversity of laws and practices across the Member States as the basis for experimentation and mutual learning within the overall process of European integration. Company law, however, seems to be an exception to this trend: recent activity in this area has mostly taken the form of ‘hard law’ harmonisation through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice concerning freedom of movement, most notably the Centros case. The deliberations of the European Corporate Governance Forum barely qualify as a ‘company law OMC’ because of the limited space allowed for ‘learning from diversity’; instead, differences in the laws of the Member States are seen, in the discourse of the Forum, as ‘distortions of competition’. In the area of labour law, by contrast, a degree of functional convergence and a coordinated raising of standards have recently been achieved by the dovetailing of the OMC with social policy directives. The contrasting experiences of labour law and company law suggest that reflexive or experimentalist approaches to European governance can be effective when they operate so as to complement mechanisms of harmonisation and regulatory competition, rather than being presented as alternatives to them.

Normative Interactions and the Development of Labour Law: A European Perspective

AbstractIn important recent cases dealing with labour law issues, the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) relied on a combination of international, European and domestic sources to justify their decisions. In Viking and Laval, the ECJ recognised that the right to take collective action as a fundamental right protected by EU law. In Demir and Baykara v Turkey, the ECtHR decided, for the first time, that the right to bargain collectively is an essential elements the right to form and to join trade unions covered by Article 11 of the European Convention for the protection of Human Rights. This chapter considers the reliance on multiple sources of law in this series of cases and questions the ‘combination method’ used by European courts to identify or interpret human right provisions. It argues that globalisation of legal sources in the area of labour law does not necessarily lead to ‘globalisation’ of labour law, allowing common solutions or, at least, harmonised solutions to come to life. The outcome of normative interaction is not universal labour law but instead largely depends on which court decides the case. Therefore, litigation strategies in the field of labour law should make use of the potential of normative interactions without ignoring the opportunities offered by the diversity of courts.

The Parallel Worlds of Corporate Governance and Labor Law

This paper engages the concept of transnational law (TL) in a way that goes beyond the by now accustomed usages with regard to the development of legal norms and the observation of legal action across nation-state boundaries, involving both state and nonstate actors. The concept of TL can serve to illustrate a much further-reaching set of developments in norm creation and legal regulation. TL is here understood not only as a body of legal norms, but it is also employed as a methodological approach to illustrate common and shared challenges and responses to legal regulatory systems worldwide. In the case of corporate governance, TL captures the specific regulatory mix of formal, hard, public regulation, on the one hand and of informal, soft, private regulation, on the other, that characterizes the contemporary evolution of corporate governance norms. Corporate governance norms give testimony of an ongoing search for answers to persisting problems in the organization of the firm, the distribution of power between shareholders, stakeholders, and the firm, as well as the responsibility of the corporation to its environment while - at the same time - reflecting on fundamental changes of the nature of norm creation and legal interpretation. While this approach is likely already to undermine some of the contentions regarding a universal convergence of corporate governance systems towards an outsider-control, shareholder-value-maximization model at the end of history of corporate its risks lie in the misappropriation of the described processes of private ordering as processes of natural evolution. After all, the shift away from formal law making to processes of societal self-regulation - as reflected in the rise of corporate governance codes, standards, best practices or, in the area of labor law, of codes of conduct and core labor rights - might turn out to be a less fortunate answer to the redistributive and participatory questions that are posed when one views corporate governance in the context of a larger set of welfare state norms, comprising not only company law and securities regulation, but also labor and employment law, industrial relations, and insolvency law. Eventually, a careful study of the transformation of the process of law making and rule enforcement suggests the necessity of taking a broader view on corporate governance than is often the case. Seen against the background of a globalization of economic activity, capital flows, and the erosion of many protective norms and rights - in particular in the area of labor law - the study of transnational corporate governance can contribute to a better understanding of the regulatory challenges of a globalized market economy.

The Parallel Worlds of Corporate Governance and Labor Law

This paper engages the concept of transnational law (TL) in a way that goes beyond the by now accustomed usages with regard to the development of legal norms and the observation of legal action across nation-state boundaries, involving both state and nonstate actors. The concept of TL can serve to illustrate a much further-reaching set of developments in norm creation and legal regulation. TL is here understood not only as a body of legal norms, but it is also employed as a methodological approach to illustrate common and shared challenges and responses to legal regulatory systems worldwide. In the case of corporate governance, TL captures the specific regulatory mix of formal, hard, public regulation, on the one hand, and of informal, soft, private regulation, on the other, that characterizes the contemporary evolution of corporate governance norms. Corporate governance norms give testimony of an ongoing search for answers to persisting problems in the organization of the firm, the distribution of power between shareholders, stakeholders, and the firm, as well as the responsibility of the corporation to its environment while-at the same time-reflecting on fundamental changes of the nature of norm creation and legal interpretation. While this approach is likely already to undermine some of the contentions regarding a universal convergence of corporate governance systems towards an outsider-control, shareholder-value-maximization model at the end of history of corporate its risks lie in the misappropriation of the described processes of private ordering as processes of natural evolution. After all, the shift away from formal law making to processes of societal self-regulation-as reflected in the rise of corporate governance codes, standards, best practices or, in the area of labor law, of codes of conduct and core labor rights-might turn out to be a less fortunate answer to the redistributive and participatory questions that are posed when one views corporate governance in the context of a larger set of welfare state norms, comprising not only company law and securities regulation, but also labor and employment law, industrial relations, and insolvency law. Eventually, a careful study of the transformation of the process of law making and rule enforcement suggests the necessity of taking a broader view on corporate governance than is often the case. Seen against the background of a globalization of economic activity, capital flows, and the erosion of many protective norms and rights-in particular in the area of labor law-the study of transnational corporate governance can contribute to a better understanding of the regulatory challenges of a globalized market economy.