National Industrial Relations Research Articles

The ‘overall protection’ of temporary agency workers, the role of social partners, and the case of Denmark

The article analyses the CJEU ruling C-311/21 TimePartner, where the Court interpreted the option provided in the Temporary Agency Work Directive for social partners to derogate from the principle of equal treatment. The CJEU concluded that the term ‘while respecting the overall protection of temporary agency workers’ is a criterion for using the option to derogate, and that a derogating collective agreement must be subject to legal review of fulfilling this criterion, even in Member States where collective agreements are presumed to be correct. Furthermore, the CJEU ruled that in order to respect the overall protection, any disadvantages in basic working conditions, i.e., working time and pay, should be set off against other advantages relating to the basic working conditions for the temporary agency workers. Finally, that the assessment is an in concreto comparison of disadvantages and advantages in terms of the basic working conditions applicable at the specific user undertaking. The article argues that the CJEU, with this approach, at the same time restricts the room for negotiation of national social partners concluding derogating agreements, and directs the legal review of the national judiciaries. This approach may interfere in the national industrial relations systems in some Member States more than others. The article then discusses how the Danish legal framework respects the overall protection of temporary agency workers. Temporary agency workers are addressed in many collective agreements in force at user undertakings with a view to counteracting circumvention of the collective agreement, and likewise, many temporary work agencies are covered by collective agreements. The transposition process in 2013 of the option to derogate is presented. The Danish Supreme Court in 2019 ruled, that the term ‘respecting the overall protection’ in the derogation provision in the Danish Temporary Agency Workers Act constitutes a legal criterion, which can be subject to judicial review, and is not an automatic consequence of a collective agreement. The article discusses how an assessment of the level of protection would be carried out in Danish industrial judiciaries, taking inspiration from earlier industrial case law comparing the overall protection of competing collective agreements. The article finally asserts that the approach of the CJEU in the TimePartner ruling protects temporary agency workers rather than pursuing flexibility in the labour markets, and as such favours one of the dual aims of the Directive. In that light, the approach taken by the CJEU ensures that derogating collective agreements meet certain standards in terms of the basic working conditions of temporary agency workers. At the same time, the ruling does not interfere with other negotiated or legislated working conditions, where the TAW Directive does not in itself require equal treatment or ‘overall protection’. The limitation of the TAW Directive to concern equal treatment only for basic working conditions, and not all working conditions, thus continues to allow a degree of flexibility for employers as well as for temporary agency workers.

Perspective. The mirage of Europeanising industrial relations. What possibilities for East-West trade union cooperation?

This article outlines possibilities for deepening relationships between trade unions from the so-called old EU Member States and those from Central and Eastern Europe. We set out the possibilities for what we describe as enhanced multi-union transnational cooperation. By this we mean multilateral rather than bilateral cooperation that is deep enough to include the joint definition of goals and strategies, and willingness to build a transnational dimension to industrial relations, including, ultimately, conducting collective bargaining on some topics. A critical analysis of the so-called Europeanisation of industrial relations is the background to our discussion. We find the participation of trade unions in this process to be limited to responses to external impulses which results in the degree of enhanced multi-union transnational cooperation in areas of core trade union activity being low. We present the thesis that in-depth cooperation may be possible in relation to new challenges for the world of work, where the transnational dimension is of key importance and where trade unions are less bound by their own national traditions and industrial relations practices.

Weathering intermediated temporary labour mobility: social partners in Central and Eastern Europe after EU enlargement

This article highlights the growing significance of intermediated temporary labour mobility, and how it has put further pressure on industrial relations institutions in Central and Eastern Europe since EU enlargement. The social partners’ modest regulatory role has been further challenged and reconfigured by the spread of labour market intermediaries. In their struggle to maintain a degree of regulatory influence in the face of unilateral government regulation and the dominance of intermediaries, social partners have shifted their positions between entrenched consent and antagonism and/or protagonism. Our two case studies of Hungarian temporary agency work in metal manufacturing and posted workers in Slovenian construction show similar labour market pressures on sectoral industrial relations in the two countries, but different responses by social partners, indicating different prospects for national industrial relations. The state has retained the decisive regulatory role in both cases, but the Slovenian social partners, in contrast to their Hungarian counterparts, still have some regulatory influence.

The legal mobilisation of EU market freedoms: strategic action or random noise?

This article investigates litigation in the field of EU market liberalisation from the perspective of legal mobilisation research. It follows the assertion that litigation has seized on asymmetries in EU law to threaten cornerstones of national industrial relations regimes. The article investigates litigants and their legal counsel in 14 seminal cases. It identifies three distinct types of litigants: narrowly self-interested ‘one-shotters’, organised interests as ‘repeat players’, and ‘cause lawyers’. Key take-aways add to the literatures on both liberalisation and legal mobilisation. The prominence of purposeful, strategic action speaks against previous assertions of a purely self-sustaining logic of market liberalisation, and efforts by trade unions to reinforce national regulations protecting labour speak against the assumption that EU law is only employed by those seeking greater factor mobility. On the other hand, attention to litigants seeking market liberalisation calls into question the notion of law as a ‘weapon of the weak’ often pursued in legal mobilisation research.

Becoming a union leader in an unfavorable industrial relations system

Union leaders dedicate a significant amount of their time to unions, and in some cases, their entire life. Scholarly literature has made great progress in identifying the individual and mesolevel variables that explain how this type of union participation begins and continues. Yet it has paid little attention to the role played by the national industrial relations system in these processes. Drawing on the concept of “union career,” this article shows that the national regulations and the union power shape the characteristics and development of union leaders’ participation. Based on an in-depth interview program, a survey and a review of the press in Chile, it examines how neoliberal reforms implemented since 1979 changed the resources and opportunities available to workers to assume, manage, and maintain union positions.

Labor Migration as a Source of Institutional Change: Danish and Australian Construction Sectors Compared

In this article, the authors examine the role of labor immigration as a source of institutional change. They use a “most different systems” comparative case study analysis of the Danish and Australian construction sectors to examine the impact of increased labor migration on skill-sourcing practices in countries with distinct national skill formation and industrial relations institutions. Drawing on 73 interviews with industry stakeholders, the authors find that labor migration has produced liberalizing pressures in both Denmark and Australia, albeit in ways that differ from each other. The article contributes to comparative institutional scholarship by illustrating how labor migration can promote or support institutional change in a liberalizing direction by disincentivizing coordinated skill formation. Findings suggest that while national institutions mediate external pressures, such as labor migration, such pressures may affect the incentive structures that can either maintain or erode national institutions.

Labour market regulation and the demand for migrant labour: A comparison of the adult social care sector in England and the Netherlands

This article contributes to the theoretical understanding of institutions as fundamental in shaping the demand for migrant labour by investigating labour market regulation as possible explanation for cross-country differences in labour market segmentation and the presence of migrant workers. It compares the adult social care sector in England and the Netherlands with important cross-country differences in the reliance on migrant labour amid similar cost saving policies and marketization drives. The analysis draws on data collected between 2009 and 2019 and consisting of sectoral survey data, policy documents, interviews with relevant actors, and the observations of trade union and care workers’ meetings. The findings highlight the importance of path-dependent features of the national industrial relations systems in explaining observed differences but also how the specific nature of the regulatory outcomes depends on unions’ strategies and power.

Understanding Employee Responses to Lay-Offs; The Ingredients for Successful Outcomes. An example from the Charity Sector in West Africa.

This study examines a recent planned organizational change by an international charity organization that resulted in the closure of three country offices and restructure of parts of its regional office which led to the lay-offs of employees within West Africa. Using an integrated model of the Kubler Ross Reaction change model, the flow of information in human resource model and industrial relations systems theory, the study examines the key steps, processes and outcomes that led to a smooth restructuring process in a region where employee lay-offs can result in endless litigation. The study concludes that a successful execution of a planned organizational change that results in office closures and staff lay-offs requires (i) a grieving model to predict, manage and adapt to employees response to change, (ii) flow of information and (iii) conformity to national industrial relations laws and practices.

플랫폼노동종사자의 조직화 형태에 대한 해외사례 연구와 시사점

The rapid development of digital technology and the recent Corona 19 pandemic have accelerated the trend of ‘untouch’ environment. The platform labor for such as food delivery, chauffeur service, and care labor has become the biggest concern to national industrial relations. However, the platform workers have not been treated as workers under the Labor Standard Act in Korea due to the characteristics such as non-conformity of employment, independence of work performance, and place and time autonomy in providing labor. Inspite of difficulties of platform workers such as low income levels and lack of social insurance systems, it is difficult to find a proper way to rescue their rights. They need to gather collective voices through the labor unions or voluntarily organized associations. However, in Korea, neither labor union nor voluntary association is emerged yet. Therefore, this study summarizes the definition and type of platform labor studied in Korea and abroad so far, and examines the current status of the organization of platform labor workers in Korea and in advanced countries. And based on the case studies for representing platform workers, implications are presented to platform workers, platform-based companies, and the government.

Is industrial relations reform the road to recovery in monopsonistic labour markets?

AbstractThis article considers the national industrial relations policy aspects of the economic recovery agenda in Australia, in the context of the theory of monopsonistic competition, employment and productivity. This framework acknowledges the employer ability to exercise discretion in the setting of wages. The proposed reforms were unlikely to lead to any increase in economic growth through higher labour productivity or employment. Proposed agendas in enterprise bargaining, greenfields agreements and award simplification (as well as union regulation), would principally have reduced labour costs and incomes. In many circumstances, allowing employers to offer lower wages may lead to fewer filled jobs, higher labour turnover and absenteeism and lower employment. The incentive on employers to improve labour productivity may fall. Proposals to more energetically punish wage theft may have had the opposite effects, but these were abandoned by the government despite support from the other parties. In the end, the only part of the reform agenda to pass Parliament concerned changes to the definition and treatment of casual employees, but casual employment grew strongly before the Bill took effect, the crisis the Bill was meant to solve eased before the Bill was passed, and even if successful the changes would have done little to boost labour productivity.

Down but not out: Union strategies and power resources in response to liberalization and changes in national postal services – The cases of Spain and Belgium

This article analyses national postal services unions’ strategic capacity in Spain and Belgium in response to the effects of liberalization and changes in the postal sector. The analysis shows, first, that despite having had to operate in a hostile context, Correos and bpost unions have been able to mobilize their power resources to resist the impact of market pressures on employment and working conditions. Second, it detects the relevance of national industrial relations institutions in order to understand the strategies unions adopt.

On Labour Representativeness: The Hidden Components of the Human Right to Freely Associate in Trade Unions

The freedom of association in trade unions is accorded a special status in the international covenants on human rights, in ILO Conventions and in national constitutions. Moreover, trade unions are usually the sole subjects of special privileges for negotiating collective agreements, consultation and permissible industrial action. Human rights and constitutional litigation usually focus on removing obstacles from individuals’ choice to associate and on the scope of the positive right to freely associate. However, there are other fundamental aspects of the right that are more covert, which are designated as its ‘hidden components’. These include the rules regarding representative status, which crudely prescribe the relationship between trade unions and their membership. Despite the prevalence of requirements for representativeness in all national industrial relations systems, the variations are immense. This article probes into the nature of representativeness, displaying its significant effect on the ability of workers to negotiate, on the capacity of trade unions to achieve collective agreements, and on the distributive effects of such agreements. The article concludes that the constitutional dimension of representativeness must be considered, demonstrating rare instances of robust constitutional challenges and directing attention to the seemingly more mundane forms of response, legal or extra-legal, that actually shape the course of their incremental legal development. Labour Law, Trade Unions, Representation, ILO, Comparative

Industrial democracy in Europe: a quantitative approach

ABSTRACT Industrial democracy is a dimension of industrial relations which has been largely studied. However, the international comparison of the different features and outcomes of industrial democracy has attracted much less attention. The article addresses this gap by developing three tools: a dashboard of indicators, a composite indicator aiming to measure performance, and a typology addressed to better understanding varieties of national industrial relations system. Whilst industrial democracy performance is defined in a normative way, the typology includes also other aspects related to industrial relations institutions, processes and actors. Both normative and non-normative indicators are included in the dashboard. The three tools allow for cross-time analysis and are seen as complementary for the comparative analysis of industrial democracy in Europe.

European integration and the paradoxical answers of national trade unions to the crises of capitalism

ABSTRACT In their introduction to this special issue, the editors mentioned that the commodification of labour is one important feature of capitalism. Hence, the reaction of the principal organizations that represent and defend labour needed to be explored. This article focuses on Belgian and German trade unions’ apprehensions of European integration during the 1970s and sheds lights on two major findings. First, trade unions’ perceptions of European integration were very clearly influenced by the condition and the evolution of capitalism. National trade unions observed that the transformations of capitalism could not be adequately addressed by national polities and industrial relations structures. Hence, trade unions heavily insisted on the necessity of political and trade unionist European cooperation. The latter is considered a necessary intermediary to allow labour to counterbalance the new forms of capital and to regain the influence it lost nationally. The second finding is that there existed a huge paradox between this enduring rhetoric of the necessity of European integration and the willingness of trade unions to give up some of their national prerogatives. The evolving forms of capitalism made it imperative to cooperate more at the supranational level but trade unions remained very much reluctant national institutions.

Conciliation, mediation and arbitration in collective bargaining in Western Europe: In search of control

Dispute resolution by third parties is a cornerstone of national industrial relations systems across Europe. However, the formal powers of the institutions of conciliation, mediation and arbitration vary considerably across countries. I aim to explain the existence of strong third-party intervention across 17 Western European countries, using fuzzy-set qualitative comparative analysis. I test two hypotheses: first, that strong institutions are established to control collective bargaining when unions are powerful but fragmented; second, that strong institutions reflect legal traditions that use civil courts rather than specialized labour courts. The analysis supports the first hypothesis but not the second. Recent reforms since the Great Recession in Southern European countries further corroborate this finding.

The ‘majesty of the law’: depoliticisation, the Rule of Law and judicial independence

The concept of depoliticisation is an important analytical tool in the study of British politics, although there remains a disproportionate focus on ‘successful’ examples of the strategy. This article provides an account of the failure of the Industrial Relations Act, focusing specifically on the National Industrial Relations Court. By presenting the Act as an attempt to insulate government by relying on the ‘majesty of the law’ as a disciplinary tool, this article argues that contradictions associated with the Rule of Law supporting capitalist social relations made the court an inappropriate vehicle for governing at arm’s-length in this context. The article explores how the lines of judicial independence became blurred, undermining perceptions of governmental disengagement. This resulted in the court becoming the most controversial aspect of the 1970–1974 Conservative government’s reforms. The analysis demonstrates how the interplay between formal rules and informal norms associated with ‘depoliticised institutions’ can produce unexpected outcomes and undermine a governing strategy. Contrary to intentions, the rules-based strategy embodied in the Act was anything but predictable and fuelled its untimely demise.

Neoliberal trajectories in mining: Comparing Malmfälten and the Pilbara

We compare the iron ore sectors and mining regions of Malmfälten in Sweden and the Pilbara in Australia. Both are physically isolated and the product is economically vital, but we find differences in industrial relations which accord with what would be expected in coordinated and liberal market economies. A closer examination, attentive to history and geography and in which changes in institutional form and function are highlighted, reveals, however, that these differences are more apparent than real, and that there is a common neoliberal trajectory. This analysis also suggests that changes in these sites at times drive transformations in national industrial relations.

Active Enactment and Virtuous Circles of Employment Relations: How Danish Unions Organised the Transnationalised Copenhagen Metro Construction Project

Transnational workers on large-scale construction projects are often poorly included in national industrial relations systems, which results in employment relations becoming trapped in vicious circles of weak enforcement and precarious work. This article shows how Danish unions have, nonetheless, been successful in enacting existing institutions and organising the construction of the Copenhagen Metro City Ring, despite initially encountering a highly fragmented, transnational workforce and several subcontracting firms that actively sought to circumvent Danish labour-market regulation. This is explained by the union changing their organising and enforcement strategies, thereby utilising various power resources to create inclusive strategies towards transnational workers. This includes efforts to create shared objectives and identity across divergent groups of workers and actively seeking changes in the public owners’ attitude towards employment relations.

The prospect of decent work, decent industrial relations and decent social relations in China: towards a multi-level and multi-disciplinary approach

Decent Work is a key initiative launched by the International Labour Organization in 1999. The initiative is to promote decent and productive employment with decent conditions of freedom, equality, security and human dignity. In reviewing academic literature on decent work, existing studies have been conducted primarily from a legal and political economic perspective. It is also largely situated outside any national industrial relations framework, both theoretically and practically. Decent work is an advocacy initiative of ILO, but the promotion of universal values embodied in the notion (e.g. equality, fairness, justice and dignity) needs to be tailored to specific societal contexts. Drawing on existing academic literature, this review article examines ideological, institutional and cultural distances between decent work and the reality of employment in China. It argues that achieving decent work requires an ideological transition of ‘traditional’ Chinese work ethics and a cultural transition from collectivism and altruism towards individualism and an emphasis on individual rights. This study also examines and highlights regulatory enforcement deficits and the inadequate role of the trade union in facilitating the advancement of decent work at various levels. Finally, the article argues that the study of decent work should be mainstreamed as an integral part of decent industrial relations and ultimately, decent social relations. It calls for a multi-level and multi-disciplinary approach to examining the historical, political, economic, ideological and cultural context of specific countries in fulfilling the ‘Decent Work’ agenda.

Patterns of transnational trade union cooperation in Europe: The effect of regimes, sectors and resources

How far, in what ways and on what issues do trade unions in Europe cooperate cross-nationally? Three important structural factors may explain differences in cooperation: national industrial relations contexts, sectoral contexts and unions’ organizational resources. We examine transnational union cooperation at sectoral level, and test the explanatory value of these three factors. We address cooperation in five broad sectors, using a Europe-wide questionnaire-based survey of trade union activities. We find that sectoral differences explain more of the variation in levels of transnational cooperation than do industrial relations regimes when controlling for resources, whereas both sectors and regimes influence which issues are seen as important for current and future cooperation. In addition, small trade unions engage in much less transnational cooperation than large ones.