Field Of Labor Law Research Articles

Emergence of the notion of “due diligence” in labour law and how it is integrated into the legal system

« Due diligence » first appeared in the field of labour law and then took center stage in the international debate on the direct responsibility of companies in terms of respect for human rights. This strange notion poses the challenge of establishing its meaning and scope, because various normative and jurisprudential instruments refer to it without defining it precisely. This lack of definition contrasts with the potential impact of due diligence on our discipline, if it were to become the measure of employer obligations in the employment relationship. We will try here to give it a coherent meaning by identifying its main characteristics and taking as a starting point these scattered legal texts. We also wonder whether labour law will be able to assimilate the concept or if it will give rise to profound modifications.

LEGAL STATUS OF THE MEDIATOR

The purpose of this article is to analyze the legal status of the mediator in mediation proceedings, focusing primarily on mediators who have been appointed to handle cases in the field of labor law. In the presented publication, I will refer to the legal requirements with respect to the mediator, which are indicate d both in the provisions of law and in the provisions of statutory rank, and the requirements that are not of a normative nature.

Algorithmic pricing: A concern for platform workers?

Technological developments have been bringing about changes in the field of work since time immemorial. Recently, the emergence of platform work has brought up all kind questions. For instance, in the field of labour law, where the questions seem to focus mostly on the topic legal status of platform workers contract: is the platform worker an employee? At the same time, it is also interesting to examine what it means if it turns out the platform worker is not an employee. In that case, other issues arise, albeit in the area of competition law. In particular, one can think of the consequences of the use of algorithms in determining the tariff of the service. In this article, I examine the consequences competition law has for the platform and individual platform workers. These consequences are nuanced and depend on the specific business model. However, it does not seem to be excluded those involved could face sanctions for a breach of competition law.

Упровадження штучного інтелекту в трудові відносини: перспективи правового регулювання

The article is devoted to the study of the prospects for the legal regulation of artificial intelligence in the field of labor relations. The trends inherent in the processes of digitalization, affecting the world of work and law, as well as the projected changes that occur in the field of labor law, are outlined. Labor law arose and took shape during the period of industrial society. Therefore, the overwhelming majority of its norms and institutions are not designed for the changes taking place in a modern digital society, do not take into account the needs of the modern labor market and are not able to comprehensively protect the interests of its participants. The article examines the transformation of the place and role of the employee and artificial intelligence in the labor process in the digital economy. It has been determined that with the development of artificial intelligence, the circle of subjects of labor law will be expanded. With the receipt of the legal status of electronic person in civil law, smart robots will be able to obtain the status of a subject in labor relations. Attention is focused on the emergence of workers with neuroprostheses that restore or enhance the natural abilities of a person. As a result, it will be necessary to determine the legal status of at least three categories of workers: - workers with disabilities who need neuroprostheses for medical reasons; - workers wishing to install a neuroprosthesis without medical indications; - workers who do not use biotechnological means. It is concluded that the modernization of labor law will follow the path of expanding the range of subjects of labor relations and the very content of the term employee. The presence or absence of access to technology will create new forms of inequality, both in the combination of worker-worker and worker-robot (AI). So, the principle of equality in labor rights and the prohibition of discrimination in the world of work should be modernized and formulated taking into account the new realities.

Responding to Attacks on Neutrals

When a union attacks an employer targeted for organizing, the variety of tactics that might be employed is endless. Unions will regularly try to identify leverage points against a targeted employer. Once such tactic is to put pressure on neutrals—entities with whom the union does not have a dispute, but that could be used to try to pressure the targeted employer. Clients and customers are prime examples of “neutrals” in the field of labor law.

Digital technologies: the state and prospects of legal regulation in the Russian Federation and the Republic of Moldova (International round table overview)

The overview contains the theses of the presentations of the participants of the international round table „Digital Technologies: the state and prospects of legal regulation in the Russian Federation and the Republic of Moldova”, held on April 12, 2021 by parners from the Republic of Moldova as the International Union of Lawyers, University of European Political and Economic studies „Constantin Stere”, the Union of Lawyers of the Republic of Moldova and the Interdisciplinary Center for Legal Research in the field of Labor Law and Social Security Law of the Institute of State and Law of the Russian Academy of Sciences. The discussion was attended by employees of the interdisciplinary Center, representatives of different areas of science in Russia and Moldova (lawyers, sociologists, historians, philosophers, psychologists) and different branches of law such as theory and history of state and law, philosophy of law, constitutional law, labor law and social security law, civil law and civil procedure, family law, etc. The participants of the round table focused on the conditions, prerequisites and prospects for the legal regulation of digital technologies in the context of changing the economic model of society. The problems discussed are usually at the intersection of different branches of law, economics, psychology and sociology, and are intersectoral and interdisciplinary in nature. Only an integraled approach to their solution allows us to achieve real practical results in optimizing the regulation of the respective relations.

Legal custom as a multilevel instrument of legal regulation of labor in the Russian Federation and the EU

The article examines some of the issues of recognizing legal custom as a source of labor law from the point of view of the current Russian legal regulation, foreign experience and at the EU level. The practice of jurisdictional bodies in the application of legal customs as sources of labor law in the resolution of labor disputes is taken into account and evaluated. The author proposes the qualification of legal custom in the field of labor law through a set of features. The article also considers for the first time the phenomenon of legal custom as a source of labor law at the supranational level (EU level).

"THE RIGHTS OF JUDICIAL PROTECTION IN THE SYSTEM OF LABOR RIGHTS OF EMPLOYEES"

In the field of labor law, there are features of protecting the rights and legitimate interests of employees. Accordingly, the features that are characteristic of labor law have an impact on the legal means of protecting rights. An employee can defend his rights on his own by contacting the competent authorities that supervise the monitoring of compliance with labor legislation, using conciliatory and intermediary means (mediation, etc.). In the system of the legal protection of employee rights, the leading and decisive place is taken by judicial protection. In turn, the level of judicial protection of citizens' rights is considered as the main indicator of the place of the judiciary in society, an indicator of the democracy of the society itself. At the same time, the draft of the new edition of the Labor Code (LC) of the Republic of Uzbekistan has expanded the list of ways to protect the labor rights of employees, thereby providing more opportunities to defend the violated rights of employees in case of illegal actions by employers. In addition to the bodies exercising supervision of labor laws compliance, and bodies considering labor disputes, the following were also included: self- defense, bodies of public control, conciliation, and mediation procedures. However, priority is given by the judicial authority as a body that also protects violated labor rights.

DIGITALIZATION OF WORK IN THE MIRROR OF LABOUR LAW PRINCIPLES IN HUNGARY

The field of labor law can be characterized primarily as a legal branch regulating personal relations. Of course, this is true for most of the legal branches as well. But fewer legal regulatory fields can tell that there is a relation between the parties with a specific nature of trust. Of course, this is not classic trust, but it is similar. The relation between the employer and the employee usually supposes a relation based on long-term personal contribution in which all the participants have their task, right, and obligation. We are talking about a complex relationship system in which personal nature and stability have an especially important role. I want to illustrate the impact of digitalization on employment through the principles of labor law. To this end, I will focus on the general behavioral requirements of digitalization. I will also explore the meaning of the principles in this changed context. It will be necessary to regulate future forms of employment, but it will also be necessary to find the relevant legal basis. This article seeks to identify these legal bases.

ЕЙДЖИЗМ (AGEISM) ЯК ЛАТЕНТНА ФОРМА ДИСКРИМІНАЦІЇ ЗА ВІКОМ

. The article is devoted to the study of ageism as a form of age discrimination. The peculiarity of age discrimination is that anyone can become its object after reaching the appropriate age. The main thing is that ageism has a dual nature. The first is the level of perception and stereotypes and the second is the level of certain ones. At the same time, the influence on the change of stereotypes is possible only through the sphere of indirect influence - the formation of appropriate cultural norms that would be in opposite to such stereotypes. Also, discriminatory practices may be subject to the legal regulation. It is noted that some of these practices have a marginal origin, because they are on the border between actions that can be clearly defined as direct discrimination and actions that constitute covert discrimination. At the same time, both formalization and prevention of hidden discrimination are very complicated. The possibility of implementing special measures (affirmative actions) to reduce the impact of agediscriminatory practices is indicated in the article. The study of the problem of ageism emphasizes the special nature of discriminatory practices in the field of labor law. The practice of restricting the employment of persons who have reached a certain age is the most pronounced. Such limitations should be considered as discriminatory practices, except when they can be justified. However, such justification must be proven for each specific type of restriction. The concept of presumption of prohibition of age discrimination is offered. The article emphasizes the need of the problem of age discrimination for future researches, including through sociological means. Also, it is necessary to monitor and revise legislation and bills in terms of age restrictions on certain activities.

Labour and the Wage: A Critical Perspective

Over the past two decades, an emerging generation of Marxist writers has revisited old ideas about class, production and the legal form, in order to shed new light on our understanding of international (China Mieville, Robert Knox) and corporate law (Grietje Baars). That generation has lacked a counterpart in the field of labour law. They have one now, in the figure of Zoe Adams, a lecturer at the University of Cambridge, whose book challenges deep-held notions of the sanctity of the employment contract, and provides intellectual ballast to those resisting new forms of managerial power. Adams begins Labour and the Wage at a level of some abstraction, by insisting on the role of law as a force that constitutes social relationships. Such categories as ‘employer’ or ‘worker’ are not empty shells waiting for academic lawyers or judges to fill them with content. They are the embodiment of past practices. They...

Some Reflections on Regulating Professional Sports in Integration Associations: a Sphere of Autonomy or an Object of the Union Law Regulation?

The regulation of relations in the field of sports is characterized by the presence of the considerable rule-making powers of sports federations that ensure the development of a particular sport, which is a manifestation of such a phenomenon as the autonomy of sport. States have to take into account this parallel normative reality. The issue of sport autonomy is gaining a new dimension in connection with the emergence of interstate integration associations, as there is a need to determine the relationship between the law of integration associations and the normative order established by sports federations, both national and international. The law of integration associations as interpreted by their judicial institutions plays a significant role in defining the concept of sport autonomy, determining the scope of rule-making powers of sports federations and the boundaries of state regulation in the field of sports. First of all, this influence can be traced in the field of labour law. In many respects the decisions of the courts of such integration associations as the European Union (EU) and the Eurasian Economic Union (EAEU) shaped the modern approaches to the content of the legal model of regulating the work of foreign athletes, taking into consideration such important principles as the freedom of movement of workers and the equality of labour rights for all citizens from the Member States of an integration association. When interpreting the rules governing professional sports activities, the courts of integration associations distinguish between issues in which the sport movement retains its autonomy and the labour (economic) activities of athletes, which are subject to the legislation of the Union. The Court of Justice of the European Union (the CJEU) in its decisions has repeatedly voiced its opinion both on the autonomy of sport and on various aspects of economic activities of athletes and sports organizations. The Court of the Eurasian Economic Union (the EAEU Court) is a much younger court and it has not adjudicated on these issues so far. However, in December, 2018 it rendered its first advisory opinion on the labour activities of professional athletes who are citizens of the EAEU Member States, in which it followed the logic the CJEU had demonstrated in a well-known decision in the Bosman case.

Features of legal regulation of labor in the member states of the Eurasian Economic Union

In 2015, a new international integration economic association, the Eurasian Economic Union (hereinafter referred to as the EAEU), appeared on the economic and legal map of the world. Each member state of the EAEU, after gaining independence, as a result of the collapse of the USSR, independently formed a legislative framework in the field of labor, developed regulatory legal acts. Differences in the regulatory framework of the EAEU states, in particular, in the field of labor law, and their mutual economic integration, need to be compared in order to develop common principles, unification and harmonization of national legislation. In this regard, the article, based on the analysis of national labor legislation, assessed the prospects for regulating individual and collective labor relations and formulated conclusions on legal approaches to regulating social partnership relations, on the principles of the creation and functioning of trade unions and employers’ associations in the EAEU countries. In particular, the trade unions of the post-Soviet republics that are part of the EAEU have completely lost the right of legislative initiative, which corresponds to global practice. Currently, they can only make proposals for the adoption, amendment of regulations related to their area of competence. The position of trade unions as social partners on the adoption and amendment of labor legislation has ceased to be mandatory, and is often not taken into account by employers and public authorities.

Legal regulation of remote work: questions of theory and practice (Review of the “Round Table”)

The review contains the theses of the presentations of the participants of the “Round Table” "On Amendments to the Labor Code of the Russian Federation regarding the regulation of remote (remote) work: Issues of theory and practice", held on January 26, 2021 by the interdisciplinary Center for Legal Research in the field of Labor Law and social security law of the Institute of State and Law of the Russian Academy of Sciences. The discussion was attended by employees of the interdisciplinary Center, representatives of various fields of science (lawyers, sociologists, historians, philosophers) and branches of law: theory and history of state and law, Philosophy of Law, Constitutional Law, Labor Law and social security law, Civil Law and procedure, Family Law, etc. The participants of the round table focused on the conditions, prerequisites and prospects for the legal regulation of remote (remote) work in the context of changing the economic model of society. The problems discussed, as a rule, lie at the intersection of different branches of law, economics, psychology and sociology, are intersectoral and interdisciplinary in nature. Only an integrated approach to their solution allows us to achieve real practical results in optimizing the regulation of relevant relations.

Ochrona interesów publicznych w Rozporządzeniu Rzym I w kontekście zróżnicowania standardów pracowniczych w UE

The paper refers to the concept of public interest contained in Art. 9 of the Rome I Regulation. The author argues that in the light of the processes taking place on the labor market (such as the digitization of the labor market and employment via platforms) and problems with defining the scope of the directive on posted workers in the context of drivers of international transport, courts may treat national regulations in the field of labor law as overriding mandatory provisions. The main goal of the paper is to draw attention to the need to increase the interest in the doctrine of labor law in the sphere of the potential application of Art. 9 Rome I. With regard to employment issues, a question arises regarding the minimum wage applicable in a given country in conjunction with the issue of the freedom to provide services. The European Court of Justice referred to the issue of ensuring fair remuneration of employees as an important element of the “overriding general interest” justifying the restriction of the freedom to provide services. In the deliberations in the Mazzoleni judgment, the ECJ also emphasized that the application of the minimum wage of the country in which the service is performed may be a disproportionate burden, especially in a situation where the enterprise providing the services is located in the border territory and the work performed in the host country is temporary, short and part-time. An interesting issue is the “translation” of the considerations contained in the aforementioned judgment into the emerging employment through internet platforms. Some background for the above considerations is the fact that in the literature of private international law, among the overriding mandatory provisions, the most frequently indicated are anti-monopoly provisions, in the field of foreign exchange law, regarding the prohibition of import or export of certain goods, but this is also important from the point of view of the paper, more and more often regulations based on a private-law method of regulation. The paper also includes considerations regarding the concept of “public interest”.

“Dispersed” Public Authority in Labour Law: Systematic Dilemmas in Law Continued

The doctrinal discussion on personal data protection regulated by the EU regulation, i.e. the GDPR, appears to re-create a vibrant and never-ending debate on the private law nature of the employer who does not implement the principle of freedom of contract when concluding a contract of employment. Because it is simply an entity pursuing public interests. The social labour inspector is a prototype of data protection officer in the field of labour law. As a matter of fact, he is also executing this “dispersed” public authority in labour law.

On the issue of forms of professional development of scientific and pedagogical workers

Problem setting. Current trends in education, related to the social importance of the development of human resources in science and education, ready for continuous professional growth and mobility require modernization of the professional development of research and teaching staff, which entails the addition of existing mechanisms with new formats and technologies of formal , non-formal, informal learning, implementation of flexible modular training programs. Analysis of recent research. Research on the professional development of employees can be found in the works of such scholars in the field of labor law: M.G. Alexandrov, A.S. Barsky, Y.M. Burnyagina, N.M. Vapnyarchuk, K.M. Gusov, V.V. Zhernakov, V.L. Kostyuk, O.M. Krymska, O.S. Pashkov, K.M. Plesnyov, O.I. Protsevsky, A.M. Slyusar, V.I. Shcherbyna, O.M. Yaroshenko, and etc. The purpose of this article is to consider the issues of professional development of research and teaching staff of higher education institutions. Article’s main body. Orientation of Ukraine to the innovative economy, state-initiated changes in the system of vocational education (level model of higher education, employer participation in the development and implementation of programs, etc.). Require a new quality of scientific and pedagogical activities, and, accordingly, ways of training and professional development of personnel for higher education. Effective professional development will help improve the employment potential of staff in higher education. One of the traditional mechanisms for the development of research and teaching staff of higher education institutions is the system of advanced training, represented by both internal in the institution of higher education and field additional professional educational programs. The article considers the problem of formation of actual directions of professional development of scientific and pedagogical workers of institutions of higher education. The main directions of professional development of scientific and pedagogical workers on the basis of the analysis of a situation in system of professional development of scientific and pedagogical workers, normative-legal base are allocated. The conclusion about necessity of updating of the maintenance and forms of realization of programs of advanced training of scientific and pedagogical workers, development of new courses, educational modules in the context of the allocated directions is made; increasing the role of research and teaching staff, management staff of higher education institutions in the formation of orders for professional development programs of research and teaching staff of higher education. Conclusions and prospects for the development. We must emphasize that in addition to instrumental, technological support of innovative system of professional development, taking into account all forms and types of education, it is necessary to develop validation of independent non-formal, informal learning and certification of modern programs of additional vocational education. We see that this should be regulated in the context of the development and adoption of the Law of Ukraine «On Adult Education».

LEGAL GUARANTEES FOR SCIENTIFIC AND PEDAGOGICAL WORKERS CONTAINING STATUS OF INTERNALLY DISPLACED PERSON

The purpose of the article is investigation of the problem of implementation and effectiveness of legal guarantees in the field of social and labor relations, which are granted to scientific and pedagogical workers who have the status of internally displaced persons. The article is devoted to the problems of implementation and effectiveness of legal guarantees, which are provided to scientific and pedagogical workers who have the status of internally displaced persons. The author substantiates and analyzes the effectiveness of privileges and benefits provided to scientific and pedagogical workers who have the status of an internally displaced person in the occurrence, change and termination of labor and socio-legal relations. Although the scientific literature contains publications on the legal protection of internally displaced persons, there is currently a relatively small number of studies in the field of labor law and social protection law, which would comprehensively cover the problem of completeness and effectiveness of legal guarantees provided to research and teaching staff. having the legal status of an internally displaced person. The decision of the tasks was carried out by means of the use of such methods as analysis and generalization of scientific, popular scientific literature and normative legal acts which grant privileges and benefits to the scientific and pedagogical workers who have the status of an internally displaced person. The author proposes to make certain changes and additions to the current legislation, which regulates the legal relationship in the field of providing social work guarantees to scientific and pedagogical workers who have the status of internally displaced persons. Paragraph 1 of clause 6 of the Resolution of the Cabinet of Ministers No. 505 dated 10/01/2014 should read as follows: “There is no monetary benefit in the event that any of the family members owns a living space (part of the living space), which, in its area, suitable for living (at the rate of 13.65 square meters per person) located in other regions than temporarily occupied territories. Supplement art. 42-1 of the Labor Code, part two of the following sentence: “An employee who was compelled to resign from work as a result, or in order to avoid the negative consequences of an armed conflict or an anthropogenic nature and has the status of an internally displaced person, has a pre-emptive right to conclude an employment contract in the event of a return decision work on the restoration of Ukraine control over the territory where the place of work of such an employee is located». The practical value of the article is to substantiate and analyze the social and legal guarantees provided to internally displaced persons working in higher education institutions, as well as to make proposals to improve the social and legal protection of internally displaced persons.

Digitalization of labor: legal and economic frameworks of development

Nowadays, digitalization is a process that affects absolutely all directions of human life, changing it significantly. It’s difficult to imagine our current life without implementation of modern advanced technologies. Creation and implementation of information technologies are used as indicators to evaluate the level and quality of a country's economy and society development. Impact of digital technology development on the economy and on the labour market tendencies is examined in the paper. It’s determined a significant part of Ukraine's economy is developing illegally. On the one hand, the gig economy fosters economic development in the country, but at the same time, it partly provides the development of the illegal – shadow economy. The economic nature of freelance from the legal point of view is analyzed. Different and the most relevant legal forms of labour performance of freelancers are defined in the academic work. The main disadvantages of freelance compared to legal employment are described in the paper. Based on the comparison of the average monthly wage and average monthly income of freelancers, conclusions describe the crucial reasons for freelance development in Ukraine, especially among young people. The current draft bills in the field of labour law in the context of digitalization are analyzed, their positive and negative statements for improving the social and economic freelancers’ welfare are identified. The conclusions determine options related to the improvement of economic and legal policies in order to condemn shadow employment and to ensure proper legal protection for freelancers in Ukraine. The importance of proper labour law is emphasized in the paper. The necessity of legal employment as an opportunity to prevent unfair relationships with the employer is described.

Dismissal Legislation and the Transition Payment in the Netherlands: Towards employment security?

The purpose of protection against dismissal is to protect the employee against unjustified dismissal, which is expected to lead to stable employment relationships and job security. In recent years, the concept of employment security has entered the world of policy and science. This article aims to contribute to the field of labour law by investigating the objectives and effects of the Dutch transition payment process in relation to the relatively new notion of employment security. To do so, the ins and outs of the Dutch transition payment process are discussed. We compare and analyse the Dutch dismissal law before and after the introduction of the Work and Security Act ( Wet werk en zekerheid (WWZ)) on 1 July 2015. We discuss the (unintended) employer and employee effects of dismissal law reform in the Netherlands and we analyse the objectives of the transition payment in relation to employment security. Based on a large-scale survey of redundant employees we shed light on the question of whether the transition payment is used for the purpose intended by the legislature. This article concludes by discussing the changes to the transition payment and dismissal compensation with the introduction of the new Balanced Labour Market Act ( Wet arbeidsmarkt in balans (WAB)) on 1 January 2020. Although the legislature has attributed a clear formal transition function to the transition payment, the transition function is lacking from a substantive law perspective and we conclude that employment security is still in its infancy in Dutch dismissal legislation.