Individual Employment Contracts Research Articles

DERECHO INTERNACIONAL PRIVADO EUROPEO Y APLICACIÓN DE LAS DIRECTIVAS EUROPEAS PROTECTORAS DE LA PARTE CONTRACTUAL DÉBIL

The Rome I Regulation on the law applicable to contractual obligations includes special conflict rules that determine the law applicable to consumer contracts and individual employment contracts. However, in some cases, these rules are not enough to ensure the application of the mandatory provisions contained in the EU directives protecting weaker contracting parties according to their intentions and objectives. This study analyses the existing inconsistencies regarding the coordination between the Rome I Regulation and those directives, focusing specially on consumer contracts and individual employment contracts. The possible mechanisms of the Rome I Regulation to ensure the protection emanating from the mentioned directives are examined. This study proposes a European private international law method that takes more into account the EU needs, particularly regarding the harmonised areas of EU law such as EU consumer law.

Considerations on the mechanism used for applying disciplinary sanctions

The essential role of the disciplinary sanctions is similar to that of the criminal sanctions and consists in the future prevention of facts that could affect the labor relations, which result from the individual employment contract concluded between the employer and the employee according to the law. In the current labor law, the legislator left within the employer the power to sanction the employee in the situation in which he violates the discipline of work, but this possibility is not a non-binding one, but one in strict compliance with the legislation in force. For the correct application of the disciplinary sanctions, that is to say, without prejudice to the rights of the employee, no disciplinary sanction, except the written warning, can be disposed of before carrying out the preliminary disciplinary investigation. Once the employee's guilt has been ascertained and after carrying out the preliminary investigation in accordance with the imposed procedures, the employer is able to establish the disciplinary sanction taking into account the following legal criteria, such as the circumstances in which the act was committed, the degree of the employee's guilt and, not in last, the general behavior at work. The disciplinary sanction, in general, in order to be implemented by the employer, must be outlined by means of a written one, respectively by a sanctioning decision that is communicated to the employee so that he is aware its provisions, and in certain cases it can challenge an eventual abusive behavior of the employer. Through this administrative instrument there are clearly described the deviations of the employee from the labor norms.

Concurrent liabilities and jurisdiction over individual contracts of employment under the Brussels Ia Regulation

This article sets out to map the different tests, and their corresponding theoretical foundations, used for determining whether the employment section of the Brussels Ia Regulation applies to concurrent liabilities. Thereby it will explicate the often unspoken theories that inform seemingly straightforward approaches to characterisation on which the applicability of the employment section to concurrent liabilities hinges. It argues that the preferable way forward is the “material link test”, under which the employment section should apply insofar as the facts underlying a claim have a material link to an employment relationship in terms of time, place, means or purpose. Other solutions, which are centred on the indispensability of interpreting the employment contract or the nature of a claim’s legal basis, are to be disregarded as ineffective and overly complex.

El concepto de contrato de trabajo en el marco del Convenio de Lugano. Comentario a la Sentencia del TJUE de 11 de abril de 2019, asunto C-603/17, Bosworth y Hurley = The concept of employment contract in the Lugano Convention. Commentary of the Judgement ot the CJEU Avril 11, 2019, case C-603/17, Bosworth and Hurley

Resumen: El TJUE se pronuncia, por primera vez, sobre el alcance de los foros de competencia judicial internacional en materia de contrato individual de trabajo del Convenio Lugano II. El paralelis­mo de este Convenio con el Reglamento Bruselas I se reproduce en esta decisión del Alto Tribunal, que sigue su jurisprudencia sobre la calificación del contrato de trabajo en el marco de las disposiciones del Reglamento europeo. Esta simetría no se ha mantenido tras la promulgación del Reglamento Bruselas I bis, por lo que la reciente decisión de los jueces de Luxemburgo pone sobre el papel la necesidad de una revisión del texto convencional.Palabras clave: Convenio Lugano II, competencia judicial internacional, contrato de trabajo, ac­ción procesal.Abstract: The CJEU pronounces, for the first time, on the scope of the international jurisdiction regarding the individual employment contract of the Lugano II Convention. The parallelism of this Con­vention with the Brussels I Regulation is reproduced in this decision of the High Court, which follows its jurisprudence on the qualification of the employment contract within the framework of the provisions of the European Regulation. This symmetry has not been maintained after the promulgation of the Brussels I bis Regulation, so the recent decision of the Luxembourg judges puts on paper the need for a revision of the treaty text.Keywords: Lugano II Convention, international jurisdiction, employment contract, legal action.

Newest factors in economic development and labor law reform problems

Problem setting. The Cabinet of Ministers’ submission to the Verkhovna Rada of Ukraine of the draft Law “On Labor” caused significant changes not only in the mechanism of regulation of social and labor relations, but also in the subject and system of labor law. By this, the liberal model of the economy is extended to relations in the sphere of labor, and labor itself is unreasonably regarded as a procedure for engaging in work on the basis of individual employment contracts. However, some of the legal mechanisms proposed in the project contradict international labor standards. Target of research. Based on the doctrine of the system of relations in the social-legal sphere and generally accepted legal codifications, it is necessary to research the mechanism of updating the labor legislation proposed by the Cabinet of Ministers of Ukraine. Object of research. Public relations in the sphere of labor and mechanism of systematization of labor legislation. Analysis of recent researches and publications. Issues related to the reform of labor law, which has been going on for many years, have been researched by leading scholars in the field of labor law. Among them are: Amelicheva L.P., Burak V.Y., Zhigalkin P.I., Pylypenko P.D., Prylypko S.M., Simorot Z.K., Silchenko S.O., Simutina Ya. V., Khutoryan N.M., Chanisheva G.I., Yaroshenko O.M. and many other scientists. In their works the substantive moments of the development of labor legislation are analyzed, but they do not affect radical innovations in the legislative activity of the Cabinet of Ministers of Ukraine. Article’s main body. The Cabinet of Ministers’ submission to the Verkhovna Rada of Ukraine of the bill (draft Law) “On Labor” (registration No. 2708 of 28.12.2019) introduces radical changes in the mechanism of regulation of social and labor relations. They require scientific reflection and the formation of approaches to solve the complex problems facing the labor law community. The article analyzes the processes and problems in the reform of the labor legislation. On the basis of researches of scientists-economists, lawyers of different specialties the author’s vision of the situation is formed; the most important problems that need to be solved at this stage of development of the social and labor sphere are singled out. The main shortcomings of the draft Law of Ukraine “On Labor” are indicated and the ways of their solution are overcome. Conclusions and prospects for the development. To the common factors of economic development (globalization, European integration processes) that influence the formation of the legal mechanism of regulation of relations, formed in recent years in Ukraine, were added such realities as the spread of non-standard forms of employment, liberalization of economic processes. If new forms of employment are objective realities that require awareness and appropriate legal regulation, then the implementation of the liberal model in the economy as a whole and in the regulation of social and labor relations in particular is subjective. It can worsen the human rights situation in the social and labor sphere. The process of reforming labor law must be consistent with the systematic nature of legal regulation and professionalism in the preparation of regulations. The Government’s draft Labor Law cannot be recognized as being in accordance with the above requirements.

Safeguarding the posted worker. A private international law perspective

This article examines the protection measures and the law applicable to posted workers. As a general rule, the Rome I Regulation designates the law to be applied to transnational individual employment contracts. In the context of postings, however, this is supplemented by certain safeguards foreseen in the Posting of Workers Directive. This paper analyses the interrelationship between the core set of employment terms as regulated in the Directive and the conflict-of-law rules for employment contracts in the Rome I Regulation. The article takes a critical look at the key problems in the legal regime applicable to posted workers under the Directive and its 2018 amendment. Special attention is first given to the question of determining the habitual workplace of a posted worker, then to the temporary nature of postings, and subsequently to the question of remuneration guaranteed to posted workers. The legal nature of national transposing measures of the Directive and national provisions entailing the core set of employment terms will also be analysed in order to explicate the interface of the two instruments. The paper will subsequently examine the application of the preferential approach.

Workers age 50 and over in the Brazilian labor market: is there ageism?

Purpose This paper deals with the insertion of workers aged 50 years or more in the Brazilian labor market. Considering this question, the purpose of this paper is to raise evidence about the existence of ageism – prejudice against that age range. The paper identifies the characteristics of participation by workers age 50 or older in Brazil’s formal labor market. The paper also identifies whether and how the specific issues of these workers are handled in the individual employment contract, with the human resources management (HRM) policies and practices of a group of companies. Design/methodology/approach The study applied a quantitative approach in an analysis of the older population in the Brazilian labor market (Annual Social Information Report (RAIS) database and “MEPT” survey database – 2011/2016). The RAIS data are collected annually by the Ministério do Trabalho e Emprego – MTE, coming from all establishments with or without formal employees, whether statutory (public servants) or private organizations. MEPT survey is an annual study focused on quality of the organizational environment and HRM practices (organizations participate voluntarily). A qualitative approach was applied also in a document content analysis on information about HRM policies and practices based on MEPT companies’ research evidence reports. Findings There is evidence of ageism among private companies in Brazil with better HRM. These companies hire proportionally less old workers than the market and their HRM policies and practices scarcely handle with employees. The workers age 50 and over among the workers employed (private and mixed capital companies) have growing participation in the labor market. The profile of these workers is predominantly male, higher level education considering the market average, and working under longer lasting formal contracts comparing all workers combined. People involved in the individual hiring of workers from this age group do not even give this subject much attention. Research limitations/implications The specific objective of verifying if and how the specific issues that workers of 50 years and older are dealing; in the individual hiring for work, encountered limitations based on the restricted character of the data presented. In particular, the information related to the best companies (MEPT) is representative only of its own group and thus is restricted to the private sector. Although this cannot be generalized, they offer support for reflections on the subject. Practical implications This paper shows how companies with advanced HRM handle with older workers in their policies and practices. Social implications This work points out that that the aging of workers will be a problem to be discussed by the companies HRM in the future. Originality/value This paper identifies the need to study how companies will deal with the increasing number of older workers.

Observations Regarding the Legal Deduction of Some Mandatory Content Elements for the Internal Regulation

As it is well known, the mandatory content of the internal regulation is regulated by the provisions of art. 242 of Law no. 53/2003 – Labour Code, these altogether referring to the possibility of including other elements (therefore optional). However, there are a series of other disparate provisions, in the same code, or in other legislations, which refer to such mandatory elements for the internal regulation, in case they don’t choose to include them in the collective labour contract or in the individual employment contract. In this article we will highlight as an example, for a vision of ample perspective, those mandatory elements for the content of the internal regulation to which the Law no. 53/2003 – Labour Code refers to in other provisions than those of art. 242. The utility of this step is both from the perspective of preventing some work conflicts and from the perspective of the control over the work inspection

소비자계약 및 근로계약 사건의 국제재판관할의 일반적 규정 방식에 대한 비판적 검토

기업활동이 국제화되고 근로자의 해외 이동이 활발하여졌으며 소비자거래 또한 국제화되었다. 이러한 국제화의 길은 당연한 현실이 되고 말았다. 그 결과 소비자계약 사건과 근로계약 사건과 관련하여 국제재판관할이 문제되는 경우가 흔히 발견된다. 1962년 제정된 섭외사법으로는 이러한 급격히 변화된 상황을 규율하는데 어려움이 있어 2001년 이를 전면 개정하여 국제적 환경의 변화에 부응하는 국제사법 분야에서의 발전된 법제도를 수용한 국제사법을 공포하였다. 2001년 전면 개정된 국제사법은 소비자계약사건과 근로계약 사건에 관하여 국제재판관할규정을 따로 두어 사회경제적 약자인 소비자와 근로자를 보호하고 있다. 국제사법은 브뤼셀 I 규정 등을 참고하여 소비자계약 사건과 근로계약 사건에 관한 국제재판관할을 “전면적인 또는 쌍방적인”형식으로 규정하고 있다. 이는 한국 소비자, 외국 소비자, 한국 사업자, 외국 사업자, 한국 근로자, 외국 근로자, 한국 사용자, 외국 사용자 사이에 이익을 합리적으로 조정하고 또한 이 들을 비차별적으로 규정한 것으로 설명되어왔다. 그러나 이와 같은 형식의 규정은 유럽공동체와 같은 공동체 내에서 회원국 간의 국제재판관할을 규정할 경우에는 타당한 실천적 의미를 가질 수 있으나 국제사법은 공동체에 속하는 회원국 간의 국제재판관할에 관한 규칙의 통합을 규정하는 것이 아니므로 국제재판관할을 “전면적인 또는 쌍방적인”형식으로 규정할 필요는 없고 대한민국이 국제재판관할을 가지는 경우를 규정하면 충분하다. 국제사법이 시행된 이래 17년이 경과된 시점에 국제재판관할에 관하여 국제사법 개정 법률안이 마련된 것은 국제사법이 다시 한번 정비될 수 있는 기회가 될 것으로 기대된다. 국제사법 개정 법률안은 소비자계약 사건에 관한 국제재판관할을 규정함에 있어서는 대한민국에 국제재판관할이 인정되는 경우만을 규정하고 있어 타당하나, 근로계약 사건에 관한 국제재판관할을 규정함에 있어서는 일부 “전면적인 또는 쌍방적인”형식으로 규정하고 있는바, 국제사법이 브뤼셀 I 규정과는 다른 상황을 규율하여야 하는 점을 고려할 필요가 있다. 국제사법 개정 법률안이 사회경제적 약자인 소비자와 근로자의 보호를 위하여 소비자계약 사건과 근로계약 사건에 관하여 국제재판관할규정을 특칙으로 규정하되 대한민국에 국제재판관할이 인정되는 경우만을 규정하는 형식으로 마련되는 것이 합리적이다. 국제사법 개정 법률안이 소비자와 근로자의 보호에 효율적인 기능을 하고 또한 대한민국이 국제재판관할을 가지는 경우만을 규정하는 합리적인 형식을 취하여 국제화된 경제상황과 국제사법이 적용될 우리나라의 입장에 부합하는 국제사법으로 정비되기를 기대한다.

Positive and negative implications entailed by fixed-term employment contracts

Generally, fixed-term employment contracts are seen as a stepping stone to permanent employment; they have become popular among the flexible forms of work contracts, and are the object of an increasing number of debates and assessments, investigating both the respective legislation and the specific consequences on the parties concluding a fixed-term employment contract. Despite the positive aspects of temporary employment – a positive effect on the rate of employment, and the common perception of such contracts as a preliminary step to permanent employment, as well as the flexibility they bring to the labor market – one cannot ignore the negative implications of fixed-term contracts on the nature of the employment relationship, the system of social protection, the working conditions, the economic security, and the job stability. Based on these considerations, the present paper investigates the advantages and disadvantages of the individual fixed-term employment contract from the standpoints of both employers and employees. Obviously, this approach aims to explore the usefulness and importance of these contract types, as means for balancing the needs of employers and employees on the labor market, and for identifying concrete instances that justify the liberalization of fixed-term employment, despite all the inherent risks entailed by any type of non-standard work: lack of job security; reduced social protection and security for those concluding such a contract.

Legal Nature of the Apprenticeship Contract

The qualification of the apprenticeship contract from the point of view of the legal nature is particularly important from the perspective of the rules applicable to labor relations. According to the definition given by Law no. 279/2005 on apprenticeship at the work place, the apprenticeship contract is an individual labor contract of a particular type. The apprenticeship contract is an individual employment contract because the apprentice, in terms of working relations, is subordinated to the employer, and the conclusion, execution, modification, suspension and termination of the apprenticeship contract are made subject to compliance with the Labor Code regulations, and is particular due to the legal characters it presents, but especially the subject of the contract: the provision of work simultaneously with the apprenticeship training in an organized framework, which enables him/her to acquire an occupation at the end of the contractual period.

Legal Framework of the Duration of Internship Programs in Romania

Internship is understood as a practice in the society of aspirants to the status of employees of the respective unit. The internship activity is not yet legally regulated in Romania. There are other forms of career start-up, which, unlike internship, enjoy legal regulation, which is often confused with internship: pupil and student practice, volunteering, internship contract, trainee management. A future regulation of this contract in Romania must be based on the premise that it is an individual fixed-term employment contract which differentiates it from the voluntary contract or the traineeship contract. If the essence of the volunteer contract is to work without being remunerated, in the case of an internship, the activity must be remunerated, thus avoiding work on the black side or using the internship as a method of exploiting the graduates (for example, offering internships only to cover the need for staff for a certain period).

Finding Effective Action in the Field of Labour Relations

The actions in the finding, regulated by art. 35 of the Code of Civil Procedure are actions whereby the applicant requests the court to establish only the existence or non-existence of a right, but without requiring the defendant to comply with that right by giving, doing or doing something. The provisions of art. 16 of the Labour Code are a real obstacle to the plaintiff's request to seek an action for a declaration that he has obtained a decision in favor of an employer without an individual employment contract because seeing the application of a contravention fine. It is not justifiable to apply for such an action either in respect of applications for the possibility of finding by court or by obliging the employer to take up employment under special or special conditions of work. The use of the action for finding in the field of employment is limited only to the finding of a legal relationship of employment which ceased before the court's request and not to an employer to conclude an employment contract in written form.

The latest Revision of Lex Laval in Sweden

Posted workers have been a ‘hot potato’ in the European Union (EU) ever since the European Court of Justice of the European Union (ECJ) in the early 1990s declared that service providers may bring their own staff when they provide services in another Member State. After the enlargement of the EU in 2004 and the (in)famous judgement in Laval un Partneri, (C-341/05, EU:C:2007:809) the question of how to set terms and conditions for posted workers gained new momentum, both at EU-level and in the Member States. The initiatives at the EUlevel after Laval have already resulted in an Enforcement directive connected to the Posting of Workers Directive and during the fall of 2017 there are proposals to revise the posting of workers’ directive to ensure posted workers not only are paid the minimum wage, but rather the wage that workers are entitled to in the host state. This appears to connect to the attempt to address social issues as well as ‘market-making’ in order not to lose popular support for EU as whole. In the wake of the Laval judgment, the Swedish posting of workers’ act was amended to ensure that Swedish law was compatible with EU law. The changes are known as Lex-Laval and introduced a proof-rule according to which an employer could shield him or herself from collective action to enforce a local rate of pay if the employer could show that the posted worker had terms and conditions of employment (including wages) essentially similar to that in a collective agreement. This was regardless of whether the terms and conditions were set in an individual employment contract or a collective agreement. Lex-Laval has been the subject of criticism, both from Swedish trade unions, as well as the ILO-expert committee on the grounds that it violates core conventions on collective bargaining. Lex-Laval has now been revised and the changes entered into force on 1 June 2017. The background to the changes are both the EU’s Enforcement directive in relation to the posted workers’ directive (2014/67/EU) as well as suggestions made by a Swedish parliamentary committee. In this article, I will describe the most important changes. An overarching aim of the revision was to strengthen collective agreements as a way to set terms and conditions of employment and to shield the ‘Swedish model’ of labour market regulation and enable it to function also for posted workers. The legal issues connected to posting of workers have always been complicated, since they presuppose knowledge not only in national labour law, but also private international law and EU internal market law. The changes in the Swedish posting of workers act concern three different topics: First changes that aim to clarify how to identify posted workers, second changes as to when collective action may be taken towards employers posting workers and the effect of collective agreements concluded after such actions, and third changes to improve cooperation between Member States as well as the enforcement of the rules. After the changes entered into force on 1 June 2017 it is necessary to distinguish between three different types of posting of workers. Depending on the origin of the posted workers as well as the type of employment relationship, a trade union can make different demands for terms and conditions in a collective agreement. The first category are workers posted to Sweden from outside the European economic area (EEA). Collective action taken towards such employers to secure collective agreements will no longer be comprised by the special regulation in the posting of workers act and thus a trade union may make the same demands as those made in collective bargaining with a Swedish employer (See Section 1 a Posting of workers’ act). This is important given Sweden’s very ‘open’ employer-driven migration regime. When it comes to posted workers from other EEA countries different demands can be made depending on whether it is a ‘regular’ posting or if the workers posted are agency workers. If it is a regular posting the trade union may only demand minimum wage. In the situation when agency workers are posted the trade unions are...

Reflections on Management Contract in Relation to Individual Employment Contract in limited Liability Companies

In social relationships practice, the way work is contracted takes various forms. One of them is given by the management contract in a company with limited liability. The definition of this contract and its precise identification attract incidence or not, as we shall see in the paper presented, of protection limits offered by labour law. In this context, the paper aims to describe the identification of management contract in relation to individual employment contract to outline the legal nature of this contract, the legal framework applicable and how can it be distinguished from the employment contract. In the analysis performed in the absence of express provision I started from a series of analogies and deductions in order to provide the management contract a self-contained character in relation to the individual employment contract, however respecting the desire of protecting rendered work.

Recognition and enforcement of judgments in employment matters in EU private international law

This article deals with the recognition and enforcement of judgments in employment matters in EU private international law. After looking into the theoretical underpinnings of the protection of employees by rules of recognition and enforcement of foreign judgments, this article examines the recognition and enforcement of judgments concerning individual employment contracts under the Recast of the Brussels I Regulation, the European Enforcement Order Regulation and the European Order for Payment Procedure Regulation. It is shown that the lack of a jurisdictional defence for employment disputes in the latter two instruments has the potential to undermine, at the overlap of the fields of application of these instruments and the Brussels I Recast, the protection offered to employees by the Recast’s jurisdictional defence.

Некоторые проблемы правового регулирования заработной платы в Российской Федерации

The article covers the problems of legal regulation of wages. The authors analyze difficulties in the implementation of certain provisions of the Labour Code, dealing with the basic state guarantees in labor remuneration. In particular, the authors pay attention to the problem of raising of the minimum rate of labour payment to the subsistence level in the Russian Federation. Nowadays this rule of the Labour Code is not operating. Authors analyze the approach of the Russian Ministry of Labour to solving this problem. Special attention is paid to the establishment of the payroll schedule, because the Labour Code, determining the abovementioned schedule, does not set specific dates, proposing to resolve this issue in local regulations or in an individual employment contract. In addition, the authors present the analysis of the issues associated with limitation of deductions from the employee´s salary by the employer, as well as the complexity of the interpretation of the term “calculation error” in the presence of which Part. 4 Art. 137 of the Labour Code allows for pay deduction or recovering of overpayments from an employee. At present, the Labour Code, using that term does not disclose its contents. Therefore, in practice, it is interpreted in different ways.

Focus: Trade Union Rights in Turkey: a gloomy picture

Trade union rights have always been at the very bottom of the rights and freedoms agenda in Turkey – not just for the last years but during the entire history of the republic. In the post-2002 period of single party rule by the Adalet ve Kalkınma Partisi (AKP, English: Justice and Development Party), trade union rights were seen to suffer a considerable meltdown. Currently trade union density in Turkey is much lower than in the decade following the military coup of September 12th, 1980. Due to higher thresholds for entering into collective bargaining system, a very low number of workers benefit from collective agreements or are able to engage in collective action, including strikes. Union members are insufficiently protected from dismissal on the grounds of their trade union activities. Moreover the right to strike has been abolished de facto. Trade union legislation undermines trade union rights Turkey’s industrial relations legislation as a whole has not encouraged trade unionism – indeed, to some degree it has been hostile to the unions. There were no remarkable changes in trade union legislation during the AKP rule and the legislation of the coup d’état of 1980 went untouched. In 2010, some amendments were made to the provisions of the Constitution related to trade union rights. However, these changes, contrary to some claims, are not capable of creating meaningful expansion of trade union rights. The changes cannot satisfy the criticisms of the European Court of Human Rights, along with the ILO’s and the EU’s demands. Turkey’s new Law on Trade Unions and Collective Agreements (No. 6356) was enacted in December 2012. Even though the new law introduces some limited improvements especially as far as the founding of unions, as concerns the internal functioning of unions and union membership (within the context of freedom of association), it maintains, and in some areas even increases limitations, especially those concerning the rights to collective agreements and to strike. The Act did amend the double threshold system – 10 percent all of workers in a particular industry and more than 50 percent at in individual firms/workplace must join a union for it to be recognised – that had inhibited unionisation for 30 years. At first, the industry threshold was reduced to 3 percent for independent unions and 1 percent for unions affiliated with confederations under the umbrella of the Economic and Social Council (ESC). In 2015 the Constitutional Court decreed that all unions shall be subject to the 1 percent industry threshold. The law continues to maintain the workplace threshold of more than 50 percent where a company is composed of a single workplace, while lowering the threshold to 40 percent for enterprises composed of multiple workplaces, for example, banks. These high workplace and enterprise thresholds hamper union organisation, the effective representation of workers and the exercise of their right to bargain collectively. There are several unions and confederations for civil servants in Turkey but these have been left out of the analysis here for several reasons. They are regulated differently from the workers’ unions and differ markedly from them in terms of rights. It is still forbidden for some public officials to be unionised, and no civil servants have rights to genuinely free collective bargaining. They must submit to compulsory arbitration and are forbidden to strike. Moreover, while workers (in both the private and the public sector) work under individual employment contract, civil servants are subject to administrative law. Civil servants’ unions in Turkey work as associations rather than trade unions. The structure of trade unionism in Turkey Industry based unionism or the principle of ‘industrial unionism’ has been adopted in Turkey. Workplace and profession-based unions, along with regional unions and federations were not allowed. Instead, Turkey adopted a uniform, centralised industrial unionism by force of law. The new trade union law No. 6356 also limits the formation of unions to industry level and prohibits the formation of workplace, enterprise or occupation-based unions. Nor does it allow union federations, city- or region-based unions, or unions representing retired people, farmers or the unemployed. The trade unions in Turkey are organised mainly under three confederations or umbrella organisations. The leading one is the...

A Utilização da Arbitragem nos Dissídios Individuais Trabalhistas: Uma Análise Frente ao Empregado Parassubordinado

O presente artigo tem por objeto a análise circunstancial da viabilidade de utilização da arbitragem, como método alternativo de solução de conflitos, nos dissídios individuais trabalhistas, quando se tratar de empregado parassubordinado. Cumpre mencionar que no panorama legal nacional não há regulação específica sobre o trabalhador parassubordinado, fato que pode vir a servir como impedimento para o reconhecimento, de plano, da relação empregatícia entre este e o seu tomador de serviço. Não se olvida a presença de uma autonomia maior nas relações laborais que envolvam os empregados parassubordinados em relação aos tradicionais contratos de emprego. Contudo, após uma detida apreciação sobre a evolução do conceito clássico da subordinação, atentando-se para uma análise interpretativa sistemático-teleológica, torna-se clara a existência dos elementos fáticos jurídicos do contrato de emprego. Neste cenário, e com base na literatura sobre o tema, tem-se que não obstante o entendimento majoritário quanto à impossibilidade de se utilizar a arbitragem no tratamento de questões trabalhistas provenientes dos contratos individuais do trabalho- seja pela hipossuficiência do trabalhador seja pela indisponibilidade dos direitos trabalhistas- traz-se à baila a necessidade de se discutir sobre o amadurecimento da utilização do referido instituto quando se tratar de direitos individuais laborais, principalmente, quando se denota a presença de empregados parassubordinados, que, comparados com os demais, possuem uma maior autonomia na realização de seus serviços e uma substancial redução de hipossuficiência frente ao seu empregador. A metodologia utilizada é eminentemente de cunho teóricodogmático, através de pesquisa da bibliografia sobre o tema, além da necessária consulta à jurisprudência dos tribunais trabalhistas.

The Impact of the 2008 Labor Contract Law on Labor Disputes in China

China's Labor Contract Law came into force on January 1, 2008. One of several important legislative acts aimed at improving the processing of labor grievances through mediation, arbitration, and litigation, and averting collective labor protest, it provides that all employed persons must work under written individual employment contracts. We evaluate the legislation's impact nationally and by province for the years before and after the law's adoption. Observing that the law's effect varied substantially across provinces, we estimate the effects of the law, controlling for time, development level, export intensity, and migrant labor share, on the volume of disputes by province using a cross-sectional time series design. We also examine the law's impact on the incidence of collective disputes and the grounds for disputes. We find that the law significantly increased the volume of labor disputes, raising questions about the relative costliness of the government's strategy for managing employment relations.