File #2532: "2018_Book_TransnationalEuropeanAndNation.pdf"
Testo
1|Preface|6
1|Acknowledgments|8
1|Contents|9
1|Transformation of Employment Relations and Social Dumping in the European Union: The Struggle Between David and Goliath?|11
2|1 Introduction|11
2|2 Social Dumping: Concept and Context|13
2|3 What Did the Transformation of Labour Law and Employment Relations Bring?|15
2|4 Old Friends: The Fear of Social Dumping and the Introduction of the Principle of Equal Pay for Equal Work and Work of Equal ...|20
2|5 Posting of Workers and Social Dumping|23
2|6 Concluding Remarks|27
2|References|28
1|Cross-Border Mobility, Supranational Companies and Employee Participation: No Chance for Harmonisation|30
2|1 Introduction|30
2|2 Freedom of Establishment and Cross-Border Mobility of the Company Seat|32
3|2.1 Supranational Companies and Employees´ Participation|33
3|2.2 Regulation of Employee Participation According to Directive 2001/86/EC|37
2|3 Relation Between Directive 2005/56/EC and the SE Regulation|38
2|4 Analysis of the Court of Justice of the European Union Judgment in Case C-635/11 European Commission v Kingdom of the Nether...|40
2|5 Conclusion|45
2|References|46
1|Immigration and Labour Policies: Paradoxes of the European Union|48
2|1 Introduction|49
2|2 From the Horizontal Approach to the Category-Based Approach to Economic Migration: The Parabola of Commission Policy from Ta...|50
3|2.1 Before Lisbon|51
3|2.2 After Lisbon|52
2|3 The Permits Directive, Equal Treatment for Regular Workers and Equal Treatment for Irregular Workers (After the Tümer Case)|58
2|4 Conclusion|63
2|References|65
1|Making a Living in the `Gig´ Economy: Last Resort or a Reliable Alternative?|67
2|1 Introduction|67
2|2 Non-standard Work in the `Gig´ Economy|68
2|3 The Challenging Realm of the Collaborative or `Gig´ Economy|71
2|4 Regulating Work Relations in the Gig Economy: A Case-Study Example|74
2|5 Self-Employed or Workers´ Dilemma|76
2|6 Conclusion|76
2|References|77
1|Law Applicable to Employment Contracts Under the Rome I Regulation|80
2|1 Introduction|80
2|2 Law Chosen by the Parties|82
3|2.1 Properties of Party Autonomy|82
3|2.2 Limitations to Party Autonomy|84
2|3 Law Applicable in the Absence of Parties´ Choice|86
3|3.1 The Country in Which/from Which the Employee Habitually Carries Out His or Her Work|86
4|3.1.1 Koelzsch|88
4|3.1.2 Voogsgeerd|91
4|3.1.3 Schlecker|93
3|3.2 The Place of Business Through Which the Employee Was Engaged|95
3|3.3 Escape Clause|96
2|4 Overriding Mandatory Provisions and Public Policy|97
2|References|102
1|Coping with Vague EU Legal Concepts|104
2|1 Introduction: Specialized Language, Concept, Category, and Meaning|105
2|2 Vague Concepts of EU Law|107
3|2.1 The Conceptualization of ``Worker´´ in EU Labor Law|109
3|2.2 The Conceptualization of ``Establishment´´ in EU Labor Law|112
2|3 Discussion: Framing EU Legal Concepts in Terminology Studies|113
2|4 Summary|113
2|References|114
1|International Jurisdiction over Individual Contracts of Employment|115
2|1 Introduction|115
2|2 Material Scope of Application|117
3|2.1 What Is a Contract of Employment?|117
3|2.2 A Dispute Relating to a Contract|119
2|3 Territorial Scope of Application: Defendants from the Third States|122
3|3.1 The Extension of Applicability Against Defendants from Third States with Establishments in Member States|122
3|3.2 The Brussels I Recast: A General Extension of the Territorial Scope Against Non-EU Domiciled Employers|124
2|4 Special Jurisdiction for the Employee´s Claims|131
3|4.1 General Considerations|131
3|4.2 The Exhaustive Nature of Jurisdictional Protective Rules|132
3|4.3 Jurisdiction in the Place Where the Employee Habitually Carries Out His Work|133
3|4.4 Jurisdiction in the Place of the Business Which Engaged the Employee|136
3|4.5 A Habitual Place of Work or an Engaging Place of Business: Employees in the International Transport Sector|138
2|5 Jurisdiction for the Employer´s Claims Against the Employee|142
2|6 Restrictions Concerning Jurisdiction Agreements|143
3|6.1 General Principles|143
3|6.2 Jurisdiction Based on the Entering of an Appearance|146
2|7 Violation of the Protective Jurisdictional Regime as a Ground for Refusal of Recognition and Enforcement of a Foreign Judgme...|149
2|8 International Jurisdiction for Individual Labour Disputes in the Slovenian National Law|149
2|9 Conclusion|151
2|References|151
1|Liability Models in Supply Chains: The Flow of an Innovative Regulatory Idea in a Global Legal Space|154
2|1 Introduction: Subcontracting and Its Effects on Working Conditions|155
2|2 Fundamental Regulatory Dilemmas of Subcontracting and Possible Responses from a Labour Law Perspective|157
2|3 Subcontracting Liability: Regulatory Experimentations Within a Global Legal Space|162
3|3.1 Unilateral, Self-Regulatory CSR Measures|162
3|3.2 Contractual Liability Models|165
3|3.3 Soft Law Measures and Public Policy Proposal|166
3|3.4 Fragments of the Subcontracting Liablity Idea in EU-Law|168
3|3.5 National Law|171
3|3.6 Judicial Tactics|173
2|4 Conclusions: Convergence of Soft Law and Hard Law|175
2|References|177
1|Functional Flexibility in the Context of Lifelong Learning|180
2|1 Introduction|180
2|2 Flexibility in Employment Relations with Special Attention to Functional Flexibility|181
2|3 Lifelong Learning Strategies, Flexicurity and Employment Policy Nexus|183
3|3.1 Issue of Funding of Lifelong Learning in the Workplace|184
3|3.2 Co-financing Systems Directed at Firms|184
3|3.3 Co-financing Schemes Directed at Individuals|185
3|3.4 Arrangements That Create Incentives for Employers and Individuals to Invest in Skill Development|187
2|4 Adult Learning in the Workplace|189
3|4.1 Learning Organisations|190
3|4.2 Role of Social Dialogue in Continuing Training|190
4|4.2.1 Collective Agreements on Continuing Training|191
2|5 Workplace Training and Lifelong Learning in Croatia|194
2|6 Conclusions|198
2|References|199
1|Danish Flexicurity: Not the Same Today as Yesterday|202
2|1 Introduction|202
2|2 Labour Relations in Denmark|204
3|2.1 The Bargaining Model|205
3|2.2 The Flexicurity Model|206
2|3 Low Job Security (Numerical Flexibility)|208
2|4 High Level of Compensation (Income Security)|210
2|5 Active Labour Market Policies (Employment Security)|212
2|6 Discussion and Conclusions|214
2|References|216
1|Dilemmas in Organising the Labour Market, Experiences with Flexicurity in the Netherlands|217
2|1 The Concept of Flexicurity in the Netherlands|217
2|2 Temporary Agency Workers|219
2|3 The Reform of Dismissal Law in 2015|221
2|4 On-Call Workers|223
2|5 Self-Employed Persons|223
2|6 Conclusions|225
2|References|226
1|Temporary Agency Work in Germany: A Short History and the Situation de lege lata|227
2|1 Temporary Agency Work in Germany|227
3|1.1 Temporary Agency Work as an Instrument of Flexicurity|227
3|1.2 Form|229
3|1.3 Operational Reasons for Use of Temporary Agency Work|230
3|1.4 Other Reasons|231
3|1.5 Main Characteristics of the TAW Industry in Germany|232
2|2 Legal Framework|233
3|2.1 Situation After 1972|233
3|2.2 Amendments to the AÜG 1985-2011 at a Glance|235
3|2.3 Amendments to the AÜG from 2003|236
3|2.4 Effects of the Hartz Reforms|239
3|2.5 Amendments to the AÜG 2011|239
3|2.6 Collective Rights of Temporary Agency Workers|241
2|3 Prospects|242
3|3.1 Reforms 2016|242
3|3.2 Instead of Conclusion|242
2|References|243
1|Flexible and New Forms of Employment in Croatia and Their Pension Entitlement Aspects|245
2|1 Introduction|246
2|2 Features of the Croatian Labour Market|248
2|3 Presence of Flexible Forms of Employment|249
2|4 Pension Entitlements of Persons Engaged in Flexible Forms of Employment|257
2|5 Discussion and Conclusion|262
2|References|264
2|Books, Articles and Online Publications|264
2|Legal Sources|265
2|Statistical and Data Sources|265
1|Individual Dismissal in Croatia|267
2|1 Introduction|267
2|2 The Croatian Labour Law Reform|271
2|3 Individual Dismissal: Novelties and Doubtful Issues|272
3|3.1 New Grounds for the Termination of Employment Contract|272
3|3.2 Cancellation of Some Duties of the Employer Prior to Dismissal for Economic Reasons and Personal Reasons|275
3|3.3 Notification of the Individual Dismissal|276
3|3.4 Protection of Certain Groups of Workers|278
3|3.5 Notice Period|279
3|3.6 Protection Against Unlawful Dismissal: Procedural Issues|281
3|3.7 Right to Demand Reinstatement or Compensation (in Lieu of)|281
3|3.8 Problems of Enforcement|283
3|3.9 Judicial Cancellation and Compensation in Lieu of|284
2|4 Measures Alternative to Dismissal: Achieving Security by the Employment Promotion Measures of the Croatian Employment Service|286
3|4.1 Job Preservation Measures|287
3|4.2 Subsidies for Employment|288
2|5 Conclusion|289
2|References|290
1|ADR in Labour Law Disputes in Italy|293
2|1 Conciliation|293
3|1.1 Introduction|293
3|1.2 Extrajudicial Conciliation|294
4|1.2.1 Administrative Conciliation|294
4|1.2.2 Trade Union Conciliation|296
4|1.2.3 Special Forms of Extrajudicial Conciliation|297
4|1.2.4 Procedure of Conciliation Following the Worker Dismissal|297
4|1.2.5 Procedure of Conciliation and Possible Informal Arbitration|297
4|1.2.6 Obligatory Attempt at Conciliation|298
3|1.3 Judicial Conciliation|299
3|1.4 Impartiality of Conciliators|299
3|1.5 Challenge to the Conciliation Agreement|300
2|2 Arbitration|301
3|2.1 Introduction|301
3|2.2 Informal Arbitration|301
4|2.2.1 Arbitration During the Attempt at Conciliation|301
4|2.2.2 Arbitration Provided by the Collective Contract|302
4|2.2.3 Informal Arbitration on the Initiative of the Parties|302
4|2.2.4 Informal Arbitration on the Certified Arbitration Clause|302
3|2.3 Informal Arbitration ex Aequo et Bono|303
3|2.4 Formal Arbitration|303
3|2.5 Challenge of the Arbitration Award|304
2|3 Some Brief Considerations on the New Labour ADR System|305
2|References|306
1|Forms of Work Performed in the Republic of Slovenia|307
2|1 Introduction|307
2|2 The Employment of Employees (Conclusion of Typical and Atypical Employment Contracts)|310
3|2.1 The Existence of Employment Relationship|310
3|2.2 Atypical Employment Contracts|312
4|2.2.1 Fixed-Term Employment Contract|313
4|2.2.2 Part-Time Employment Contract|315
2|3 Work Performed on Other Legal Grounds|318
3|3.1 Temporary and Occasional Work of Retired Persons|319
3|3.2 Temporary and Occasional Student Work|320
2|4 Providing Work of Workers Through Agencies (Temporary Agency Work)|321
2|5 Delegation of Work to Outside Contractors|324
3|5.1 The False Self-Employed|325
3|5.2 Economically Dependent Persons|327
2|6 Conclusions|330
2|References|330
1|Acknowledgments|8
1|Contents|9
1|Transformation of Employment Relations and Social Dumping in the European Union: The Struggle Between David and Goliath?|11
2|1 Introduction|11
2|2 Social Dumping: Concept and Context|13
2|3 What Did the Transformation of Labour Law and Employment Relations Bring?|15
2|4 Old Friends: The Fear of Social Dumping and the Introduction of the Principle of Equal Pay for Equal Work and Work of Equal ...|20
2|5 Posting of Workers and Social Dumping|23
2|6 Concluding Remarks|27
2|References|28
1|Cross-Border Mobility, Supranational Companies and Employee Participation: No Chance for Harmonisation|30
2|1 Introduction|30
2|2 Freedom of Establishment and Cross-Border Mobility of the Company Seat|32
3|2.1 Supranational Companies and Employees´ Participation|33
3|2.2 Regulation of Employee Participation According to Directive 2001/86/EC|37
2|3 Relation Between Directive 2005/56/EC and the SE Regulation|38
2|4 Analysis of the Court of Justice of the European Union Judgment in Case C-635/11 European Commission v Kingdom of the Nether...|40
2|5 Conclusion|45
2|References|46
1|Immigration and Labour Policies: Paradoxes of the European Union|48
2|1 Introduction|49
2|2 From the Horizontal Approach to the Category-Based Approach to Economic Migration: The Parabola of Commission Policy from Ta...|50
3|2.1 Before Lisbon|51
3|2.2 After Lisbon|52
2|3 The Permits Directive, Equal Treatment for Regular Workers and Equal Treatment for Irregular Workers (After the Tümer Case)|58
2|4 Conclusion|63
2|References|65
1|Making a Living in the `Gig´ Economy: Last Resort or a Reliable Alternative?|67
2|1 Introduction|67
2|2 Non-standard Work in the `Gig´ Economy|68
2|3 The Challenging Realm of the Collaborative or `Gig´ Economy|71
2|4 Regulating Work Relations in the Gig Economy: A Case-Study Example|74
2|5 Self-Employed or Workers´ Dilemma|76
2|6 Conclusion|76
2|References|77
1|Law Applicable to Employment Contracts Under the Rome I Regulation|80
2|1 Introduction|80
2|2 Law Chosen by the Parties|82
3|2.1 Properties of Party Autonomy|82
3|2.2 Limitations to Party Autonomy|84
2|3 Law Applicable in the Absence of Parties´ Choice|86
3|3.1 The Country in Which/from Which the Employee Habitually Carries Out His or Her Work|86
4|3.1.1 Koelzsch|88
4|3.1.2 Voogsgeerd|91
4|3.1.3 Schlecker|93
3|3.2 The Place of Business Through Which the Employee Was Engaged|95
3|3.3 Escape Clause|96
2|4 Overriding Mandatory Provisions and Public Policy|97
2|References|102
1|Coping with Vague EU Legal Concepts|104
2|1 Introduction: Specialized Language, Concept, Category, and Meaning|105
2|2 Vague Concepts of EU Law|107
3|2.1 The Conceptualization of ``Worker´´ in EU Labor Law|109
3|2.2 The Conceptualization of ``Establishment´´ in EU Labor Law|112
2|3 Discussion: Framing EU Legal Concepts in Terminology Studies|113
2|4 Summary|113
2|References|114
1|International Jurisdiction over Individual Contracts of Employment|115
2|1 Introduction|115
2|2 Material Scope of Application|117
3|2.1 What Is a Contract of Employment?|117
3|2.2 A Dispute Relating to a Contract|119
2|3 Territorial Scope of Application: Defendants from the Third States|122
3|3.1 The Extension of Applicability Against Defendants from Third States with Establishments in Member States|122
3|3.2 The Brussels I Recast: A General Extension of the Territorial Scope Against Non-EU Domiciled Employers|124
2|4 Special Jurisdiction for the Employee´s Claims|131
3|4.1 General Considerations|131
3|4.2 The Exhaustive Nature of Jurisdictional Protective Rules|132
3|4.3 Jurisdiction in the Place Where the Employee Habitually Carries Out His Work|133
3|4.4 Jurisdiction in the Place of the Business Which Engaged the Employee|136
3|4.5 A Habitual Place of Work or an Engaging Place of Business: Employees in the International Transport Sector|138
2|5 Jurisdiction for the Employer´s Claims Against the Employee|142
2|6 Restrictions Concerning Jurisdiction Agreements|143
3|6.1 General Principles|143
3|6.2 Jurisdiction Based on the Entering of an Appearance|146
2|7 Violation of the Protective Jurisdictional Regime as a Ground for Refusal of Recognition and Enforcement of a Foreign Judgme...|149
2|8 International Jurisdiction for Individual Labour Disputes in the Slovenian National Law|149
2|9 Conclusion|151
2|References|151
1|Liability Models in Supply Chains: The Flow of an Innovative Regulatory Idea in a Global Legal Space|154
2|1 Introduction: Subcontracting and Its Effects on Working Conditions|155
2|2 Fundamental Regulatory Dilemmas of Subcontracting and Possible Responses from a Labour Law Perspective|157
2|3 Subcontracting Liability: Regulatory Experimentations Within a Global Legal Space|162
3|3.1 Unilateral, Self-Regulatory CSR Measures|162
3|3.2 Contractual Liability Models|165
3|3.3 Soft Law Measures and Public Policy Proposal|166
3|3.4 Fragments of the Subcontracting Liablity Idea in EU-Law|168
3|3.5 National Law|171
3|3.6 Judicial Tactics|173
2|4 Conclusions: Convergence of Soft Law and Hard Law|175
2|References|177
1|Functional Flexibility in the Context of Lifelong Learning|180
2|1 Introduction|180
2|2 Flexibility in Employment Relations with Special Attention to Functional Flexibility|181
2|3 Lifelong Learning Strategies, Flexicurity and Employment Policy Nexus|183
3|3.1 Issue of Funding of Lifelong Learning in the Workplace|184
3|3.2 Co-financing Systems Directed at Firms|184
3|3.3 Co-financing Schemes Directed at Individuals|185
3|3.4 Arrangements That Create Incentives for Employers and Individuals to Invest in Skill Development|187
2|4 Adult Learning in the Workplace|189
3|4.1 Learning Organisations|190
3|4.2 Role of Social Dialogue in Continuing Training|190
4|4.2.1 Collective Agreements on Continuing Training|191
2|5 Workplace Training and Lifelong Learning in Croatia|194
2|6 Conclusions|198
2|References|199
1|Danish Flexicurity: Not the Same Today as Yesterday|202
2|1 Introduction|202
2|2 Labour Relations in Denmark|204
3|2.1 The Bargaining Model|205
3|2.2 The Flexicurity Model|206
2|3 Low Job Security (Numerical Flexibility)|208
2|4 High Level of Compensation (Income Security)|210
2|5 Active Labour Market Policies (Employment Security)|212
2|6 Discussion and Conclusions|214
2|References|216
1|Dilemmas in Organising the Labour Market, Experiences with Flexicurity in the Netherlands|217
2|1 The Concept of Flexicurity in the Netherlands|217
2|2 Temporary Agency Workers|219
2|3 The Reform of Dismissal Law in 2015|221
2|4 On-Call Workers|223
2|5 Self-Employed Persons|223
2|6 Conclusions|225
2|References|226
1|Temporary Agency Work in Germany: A Short History and the Situation de lege lata|227
2|1 Temporary Agency Work in Germany|227
3|1.1 Temporary Agency Work as an Instrument of Flexicurity|227
3|1.2 Form|229
3|1.3 Operational Reasons for Use of Temporary Agency Work|230
3|1.4 Other Reasons|231
3|1.5 Main Characteristics of the TAW Industry in Germany|232
2|2 Legal Framework|233
3|2.1 Situation After 1972|233
3|2.2 Amendments to the AÜG 1985-2011 at a Glance|235
3|2.3 Amendments to the AÜG from 2003|236
3|2.4 Effects of the Hartz Reforms|239
3|2.5 Amendments to the AÜG 2011|239
3|2.6 Collective Rights of Temporary Agency Workers|241
2|3 Prospects|242
3|3.1 Reforms 2016|242
3|3.2 Instead of Conclusion|242
2|References|243
1|Flexible and New Forms of Employment in Croatia and Their Pension Entitlement Aspects|245
2|1 Introduction|246
2|2 Features of the Croatian Labour Market|248
2|3 Presence of Flexible Forms of Employment|249
2|4 Pension Entitlements of Persons Engaged in Flexible Forms of Employment|257
2|5 Discussion and Conclusion|262
2|References|264
2|Books, Articles and Online Publications|264
2|Legal Sources|265
2|Statistical and Data Sources|265
1|Individual Dismissal in Croatia|267
2|1 Introduction|267
2|2 The Croatian Labour Law Reform|271
2|3 Individual Dismissal: Novelties and Doubtful Issues|272
3|3.1 New Grounds for the Termination of Employment Contract|272
3|3.2 Cancellation of Some Duties of the Employer Prior to Dismissal for Economic Reasons and Personal Reasons|275
3|3.3 Notification of the Individual Dismissal|276
3|3.4 Protection of Certain Groups of Workers|278
3|3.5 Notice Period|279
3|3.6 Protection Against Unlawful Dismissal: Procedural Issues|281
3|3.7 Right to Demand Reinstatement or Compensation (in Lieu of)|281
3|3.8 Problems of Enforcement|283
3|3.9 Judicial Cancellation and Compensation in Lieu of|284
2|4 Measures Alternative to Dismissal: Achieving Security by the Employment Promotion Measures of the Croatian Employment Service|286
3|4.1 Job Preservation Measures|287
3|4.2 Subsidies for Employment|288
2|5 Conclusion|289
2|References|290
1|ADR in Labour Law Disputes in Italy|293
2|1 Conciliation|293
3|1.1 Introduction|293
3|1.2 Extrajudicial Conciliation|294
4|1.2.1 Administrative Conciliation|294
4|1.2.2 Trade Union Conciliation|296
4|1.2.3 Special Forms of Extrajudicial Conciliation|297
4|1.2.4 Procedure of Conciliation Following the Worker Dismissal|297
4|1.2.5 Procedure of Conciliation and Possible Informal Arbitration|297
4|1.2.6 Obligatory Attempt at Conciliation|298
3|1.3 Judicial Conciliation|299
3|1.4 Impartiality of Conciliators|299
3|1.5 Challenge to the Conciliation Agreement|300
2|2 Arbitration|301
3|2.1 Introduction|301
3|2.2 Informal Arbitration|301
4|2.2.1 Arbitration During the Attempt at Conciliation|301
4|2.2.2 Arbitration Provided by the Collective Contract|302
4|2.2.3 Informal Arbitration on the Initiative of the Parties|302
4|2.2.4 Informal Arbitration on the Certified Arbitration Clause|302
3|2.3 Informal Arbitration ex Aequo et Bono|303
3|2.4 Formal Arbitration|303
3|2.5 Challenge of the Arbitration Award|304
2|3 Some Brief Considerations on the New Labour ADR System|305
2|References|306
1|Forms of Work Performed in the Republic of Slovenia|307
2|1 Introduction|307
2|2 The Employment of Employees (Conclusion of Typical and Atypical Employment Contracts)|310
3|2.1 The Existence of Employment Relationship|310
3|2.2 Atypical Employment Contracts|312
4|2.2.1 Fixed-Term Employment Contract|313
4|2.2.2 Part-Time Employment Contract|315
2|3 Work Performed on Other Legal Grounds|318
3|3.1 Temporary and Occasional Work of Retired Persons|319
3|3.2 Temporary and Occasional Student Work|320
2|4 Providing Work of Workers Through Agencies (Temporary Agency Work)|321
2|5 Delegation of Work to Outside Contractors|324
3|5.1 The False Self-Employed|325
3|5.2 Economically Dependent Persons|327
2|6 Conclusions|330
2|References|330