Annex: national report executive summaries
| Author | Silviana Sciarra |
| Profession | Professor of Labour Law |
| Pages | 67-94 |
Page 67
The main reforms since 1992 have taken place in the past six years. Essentially the reforms are confined, in accordance with the structures of Austrian labour law, to the legislation governing labour and social law. Like other Member States, Austria too has seen an increased focus on the interaction between labour law and social law.This can be seen particularly through measures that account for income for social security and through measures to improve the employment rate of older workers. Reforms are often justified by considerations of fairness, but have mostly resulted in adjustments at the bottom or lower end (for example with regard to the new severance pay arrangements or to pension insurance) or an increase in contributions (e.g. obligatory insurance for all earnings).
Towards the end of the coalition between the Socialist Party of Austria (SPÖ) and the Austrian People's Party (ÖVP) (up to October 1999), the main emphasis was on labour market reforms to promote the occupational integration of young people (Young People Training Guarantee Act, pre-apprentice-ship) and the employment of older workers. More 'age-independent' labour market measures intended to encourage employment have had hardly any practical significance. Examples of these are 'educational leave', 'unpaid leave' and the 'solidarity premium model'. There has however been a very high acceptance of 'partial retirement'.This is presumably due to the fact that in many cases it amounts to a form of assisted 'pre-retirement model'.
The Austrian People's Party (ÖVP) and the Freedom Party of Austria (FPÖ), have a programme generally aimed at bringing about a 'turn-around' in Austria. Since the coalition of these parties there has been increasing intervention in existing substantive labour and social law. This has, however, led to little actual improvement in the legal position of employees. Improvements of the level of labour and social protection have been driven either by the requirements of European law (such as the prohibition of discrimination and the obligation to provide information in the case of fixed-term employment relationships) or considerations of family policy, as for example with family care leave or childcare allowance. However, even the childcare allowance has brought about only minor improvements compared to previous entitlements for female workers. The main beneficiaries are self-employed or non-active women. Equal status for manual and non-manual workers has not been properly implemented.A particular example of this is that the improvement to the law governing the 'entitlement to continued payment of wages in the event of illness' for manual workers has been offset by the negative practical impact of the abolition of the compensation fund. A result is that employers now often exert considerable pressure on sick workers to consent to termination of the employment relationship with a concomitant loss of entitlements (with re-employment when the illness is over). The abolition of job search days upon notice and further restrictions on compensation for unused holiday leave upon termination of the employment relationship were also detrimental to employees. Moreover, reductions in non-wage related labour costs to promote the Austrian economy only concerned costs borne by the employer.
More recently, attempts have also been made by the government to curtail the importance of Austria's tried and tested 'social partnership'.This is shown in particular by the current move to reform the pension system.This has led to the most significant industrial action and protest measures Austria has seen in the last 40 years. Nevertheless, the most significant reform of Austrian law in the past 20 years, i.e. the complete overhaul of the law governing severance pay in 2002, follows a model agreed by the social partners and consequently exhibits all the advantages of legislation based on the broadest possible consensus.This reform, while worsening the position of some individuals compared to the previous situation, introduces substantial improvements for both employees and employers, if it is considered globally.
A number of the (in some cases) very innovative reforms of Austrian labour and social law in the past decade clearly demonstrate that necessary legislative adjustments to changing economic circumstances are not necessarily associated with a deterioration in the level of labour and social protection. A prerequisite for this has been the sufficient involvement of both the labour and employer organisations in the legislative process and their readiness to arrive at a compromise acceptable to both sides of the industry, taking into account the legitimate interests of the other social partner. In precisely those areas where such an involvement has been absent, an increased trend towards a reduction of the level ofPage 68 social protection has recently become evident. In these cases, the social policy reforms are, together with an increase in the contribution burden particularly for employees, not providing any noticeable stimulus for development of the labour market and the economy. From a personal standpoint, this seems all the more regrettable as in recent decades the excellent competence exhibited by the Austrian social partners in resolving economic and social policy issues has constituted one of the foundations of the positive economic development and at the same time a guarantee for the preservation of social peace.
Page 69
Belgian labour and employment law has undergone a number of changes. The number of legislative acts (in the broadest sense) that have been passed has not been reduced. On the contrary, it seems that the number of Parliamentary Acts and Royal Decrees regulating various aspects of individual and collective labour relations has increased.
This does not mean, however, that other sources of obligations in the labour and employment field have disappeared. Actual working conditions are often - as they have always been - determined not by the legislation, but by the social partners themselves. Collective bargaining takes place at the various levels of industrial relations in Belgium.
Belgium has a long tradition of implementing legislation through inter-industry-wide collective bargaining agreements, even before this was explicitly foreseen at the European level. There are no indications of any shift in this practice.
In addition to the 'legislation' that is produced by the National Labour Council (and rendered generally binding through a formal government intervention), the number of legislative acts (Parliamentary Acts) and government acts (Royal or Ministerial Decrees) has increased over the years. Legislative intervention remains high on the agenda, except in the area of collective industrial conflicts.
It has already been stated that there is an increasing number of acts regulating labour and employment matters, making it extremely difficult for employers to know all of their obligations. Throughout the 1990s, a large amount of legislation (sensu latu) was directly inspired or required by the obligation to implement European directives. Most directives are implemented very faithfully and often the European texts are reproduced at the national level. References to the European directives that are implemented by the national legislation are now included in the text of the legislative acts.
While the discussion on the criteria to distinguish subordinate employees from self-employed workers is not new, and has been going on for decades (even before the 1990s), the debate has clearly intensified. The attempts by both workers and employees to avoid paying the high social security contributions levied on subordinate employment are certainly factors that have contributed to the intensification of the debate. While there has been much talk about reducing the cost of labour in Belgium, no real action has been taken.
An area in which more leeway was created for companies over the last ten years deals with triangular employment relationships. Temporary work through temporary employment agencies has been a fact of life in Belgium even before the beginning of the 1990s.
The legislative framework, combined with the collective bargaining agreements specifically for the sector of temporary work, provide sufficient breathing for the temporary employment agencies and companies and a sufficient degree of protection for the temporary workers. The system has been in place for a long time, but was completed and improved over the years.
While the applicable legislative act on putting workers at the disposal of a user, that saw the light of day in 1987, foresaw a number of articles dealing with the issue, the conditions that were imposed were so stringent that it was almost impossible in practice to put a worker at the disposal of a user company. A modification of the act in the late 1990s made it even more difficult. A very recent modification of the act, however small the amendments to the legislative act actually were, left the system only in principle intact. The act, as phrased now, allows for the leasing out of personnel at least if decent service agreements are concluded between the actual employer of the worker involved and the 'user' company.
With the encouragement of the EU and as a reaction to a specific Supreme Court case, a new employment contract was created, namely the employment contract for the tele-worker, which could cover any form of teleworking and paid attention to the specifics of working at home. This kind of contract may not be used that much yet, but certainly has potential for the future.
For the same reasons that the employment contract for home work was established, the issue of data protection was also regulated because of the need to accommodate thePage 70 specifications of teleworking. Besides the general law on data protection that was implemented and amended to correspond fully to the EU Directive, the social partners also tackled the issue of Internet and e-mail use. A national inter-industry-wide collective bargaining agreement was concluded to provide the employer with some possibilities for controlling Internet and e-mail if these facilities are granted to the employees of the company.
Another recent development is the issue of outsourcing. In this field, the EU Directive on the Transfer of Undertakings has been faithfully implemented and applied in Belgium. Collective bargaining agreements have also tried to cope with the problems that emerged in outsourcing deals where the Directive would not apply by trying to extend the scope of the Directive partially or completely. These agreements have tried to foresee similar rules as those put forward by the Directive.
The legislation on company closures and collective dismissal was modified and sanctions in case of violation of the information and consultation duties were stiffened. The aim was to give the workers and their representatives the possibility to influence decision-making by suggesting alternatives to the intended measures. It is clear that the modification had the effect in making employers much more aware of their obligations and much more careful in the ways they communicate with their personnel and the outside world. This is an advantage in itself. However, it is doubtful that the impact on the actual decision-making process has been as high as expected.
The reconciliation of working life and family life has been high on the agenda, especially since the second half of the 1990s. The numerous forms of career leave that were introduced caused the system to become very complicated. A new and more transparent system has since been set up which allows for all kinds of justified and unjustified leave.
Flexible working time regimes were primarily introduced to grant employers the ability to make more optimal use of the available working time and cope with peaks and troughs in production.
In the same line of thought with respect to the harmonisation of working life and family life, the government has tried to reduce working time even below the levels that are set in sector-level collective bargaining agreements. It therefore gives incentives in the form of a reduction in social security contributions that can vary according to the number of hours of working time reduction below 38 hours a week. Furthermore, the introduction of a four-day working week can lead to a reduction in social security contributions. The legal acts do not oblige the employer to hire additional personnel, although this was certainly one of the aims of the legislative acts.
Employees that are on career leave or that have filed a request to go on leave are protected against dismissal. This is just one additional protection against dismissal granted by Belgian employment law. It is part of a long list of specific protections that have been established over the last couple of years and in which the government uses the technique of the reversal of the burden of proof.
The same techniques are also to be found in the various acts that deal with employment discrimination through which the Belgian legislator implemented the European Directives.
Since the second half of the 1990s, the legislator has introduced various instances in which an employer is confronted with a reversal of the burden of proof. Furthermore, the concept of cease and desist orders was also introduced. Cease and desist orders were previously primarily known in commercial law and were requested, for example, in files in which there was a violation by one party of commercial trade secrets. This technique is now generally introduced in the area of employment discrimination. While practical experience does not exist, it is presumed that this legislation will introduce more procedural burdens on employers. It is clear from all of this that the employment relationship is certainly not moving towards deregulation; instead it is going in the direction of increased government intervention and formalism.
Belgium has proven faithful to European legislative acts (although their implementation has not always been timely). It has also followed up on European calls for initiatives to include risk groups by taking measures to reduce the costs of employing workers that belong to the group of those at risk from exclusion. Furthermore, various actions of a more qualitative nature have been undertaken in order to better prepare those looking for employment. Incentives to engage in training and lifelong learning have been established. It is not clear to what extent these kinds of government intervention have led to a reduction of unemployment. It seems that the government was, at least over the past years, riding on the wave of the economic boom.When economic times become more difficult again, it may be harder to provide actual evidence that the government measures have led to any increase in jobs.
Page 71
The industrial relations regime in Denmark is commonly referred to as 'the Danish model'. A distinctive feature of this model is that there is a high trust tripartite co-operation between trade unions, employers' organisations and the government.There has been a long-standing consensus that the state shall not interfere in regulation as regards wages and other employment conditions, without a joint request from the social partners. And the social partners have generally preferred regulation through collective agreements. Thus, legislation has traditionally played a minor role in the field of labour law. Another feature of the Danish model is that the social partners play a predominant role in dispute settlement through industrial bodies, such as the Labour Court and industrial arbitration tribunals.
The predominant issue in the evolution of labour law in Denmark since 1992 has been how to integrate EC labour law into the Danish model. As for implementing EC directives, the procedure used in practice is to transpose the directive into national law. After that the legislator will adopt the statutes necessary to guarantee that every employee is ensured the rights of the directives.The opinion that it is possible to implement an EC directive only through traditional collective agreements seems to have been abandoned. Several different techniques have been used when drafting the statutes.The act transposing the directive is usually semi-mandatory, i.e. the statutes apply only in work-places not covered by collective agreements.This kind of legislation has, for instance, been used in relation to the Working Time Directive and the Fixed-Term Work Directive. While implementing the Part-Time Directive, the major Danish collective agreements on its implementation were given an erga omnes effect through legislation. Here too, the individual contract was given preference to the clauses in the collective agreements. This change occurred after the shift in political power from the Social Democrats to the Conservative/Liberal coalition in 2001.The legislation issued by the new government led to a complaint to the International Labour Organisation (ILO).The ILO held it not to be consistent with the basic conventions on free collective bargaining.
On the whole, however, the procedure used in transposing EC directives shows that tripartite co-operation in the field of labour law is still a reality in Denmark. The state still accepts the idea that regulation of employment conditions is mainly an issue for the social partners. From this aspect the Danish model has survived.
On the other hand, it must be stressed that the number of labour law statutes has increased dramatically during the last decade.Although there are some examples of purely national legislation adopted during the last decade, the bulk of new legislation has been introduced in order to transpose EC directives. Further, individual human rights have become more important. In 1997, the European Convention on Human Rights was incorporated into Danish law. The Convention has had a significant impact on the labour law debate (e.g. the questions on negative freedom of association and locus standi for individual employees).
New forms of employment (such as agency work and fixed-term work) have not been a major issue in Denmark.
Page 72
The Finnish development of labour law since the early 1990s can be characterised by consensus and tripartism. The national incomes policy that co-ordinates collective bargaining and Finnish membership of the European Union are factors having particularly marked the evolution of labour law. Although EC law set the agenda for labour law to a large extent, an extensive modernisation of national labour law has taken place in parallel.
During the last ten years a remarkable renewal of Finnish labour law legislation has occurred. The process has been driven especially by the central employers' organisations TT and the central trade union SAK. The Employment Contracts Act, the Act on Working Time, legislation on health and safety, protection of young employees, personal integrity in the working place and legislation on so-called alteration leave are only some examples of an impressive list of legislative achievements during this period.The content of this legislation can be described in a few catchwords: simplification, modernisation and continuity.
From the perspective of substance, the main trends of the evolution can be summarised in four points:
* Individual constitutional and human rights have clearly gained importance in Finnish labour law.
* Also on a more general level individual labour law and the rights and duties of the individual worker have gained importance.
* The effort to combine flexibility for employers with security for workers has been strongly felt in the development of different legal instruments. The high level of unemployment has been an important factor that has been taken into account in the legislative process.
* The collective bargaining system is still an important and central regulator of the terms and conditions on the Finnish labour market. The bargaining system has to a large extent, however, been decentralised from within.
Page 73
The period between 1992 and 2003 saw a great deal of change in labour law. Regular changes in political power led to frequent changes in the law on sensitive issues such as redundancy and reduced working time.The economic crisis and high unemployment figures led to efforts by all the parties involved to tackle the issue of defending jobs and fighting unemployment.
Over this eleven-year period, judges had a central role in developing labour law. This was partly because the judges reinforced the control of constitutionality and the fundamental rights of workers in companies, and partly because the judges introduced a genuine social policy via a consistent creation of jurisprudence, guided by a concern for safeguarding jobs and fighting unemployment.
The result has been a certain legal uncertainty (which employers have strongly opposed) due to changes to labour law on issues which have the most important market interaction. Legislators and social partners had to resort to 'experimental' techniques demonstrating the difficulty that exists between reconciling the need to adapt labour law to economic developments, and the essential need for legal security.
A number of guiding principles can be seen with regard to the sources of labour law.There is a clear reinforcement of the protection of fundamental rights, along with a preference for flexibility mechanisms that favour the management of the company with regard both to individual labour relations within the framework of the employment contract and to collective relations. Where flexibility is imposed by the employer, it is procedurally defined and controlled if it removes benefits or results in a move towards a form of insecure contract. When it is negotiated, it gives rise to a derogatory type of negotiation that is strictly controlled from a procedural point of view so that the majority union organisations have the right to object.
There has been a movement towards diversification of forms of labour, a preference for the flexible management of the employment contract, and a strong movement by companies towards outsourcing to encourage management flexibility.
This movement has tended to increase insecurity and lead to the development of new forms of poverty that have mainly affected women. However, the move towards greater flexibility and job insecurity has been accompanied by measures aimed at making the works council responsible for monitoring the employment policy chosen by the employer.
The need to rethink collective bargaining has arisen in a context where both the number and quality of the negotiation partners involved (these are no longer only unions) have increased.There has also been an effort to give greater legitimacy to the unions.
During this eleven-year period, the unions had to introduce, in the context of derogatory agreements and the revision of collective agreements, strategies based on the possibility of exercising a right of objection for the unions who were in the majority at the last elections.
This majority-based principle was also applied during the implementation of agreements relating to the reduction of working hours. A profound change took place, affecting all the parties involved and the conditions of negotiating legitimacy, while at the same time company negotiation increased.These changes led to a major reform of collective bargaining in 2004, causing this form of negotiation to be considerably decentralised and giving greater autonomy to company negotiation in important areas of labour relations.
Labour law increasingly included mechanisms aimed at increasing employee flexibility both through the individual employment contract (adaptation and redeployment obligations) and through a number of complex mechanisms organised within the context of continued vocational training and unemployment. A strong movement towards individualising the legal instruments covering the flexibility and reintegration of the unemployed can be seen.
In 2003, a right to lifelong training was introduced as part of a major national interprofessional agreement. The balances leading to a position of relative job security are created by a strict procedural supervision of the powers of the employer: Page 74 checks on the use of short-term contracts, strict controls over the redundancy procedure and the reinforcement of sanctions against employers not complying with the requirements of the restructuring plan.
Over this eleven-year period, the Court of Cassation has rigorously developed these requirements qualitatively, which has greatly upset employers due to the legal uncertainty created by the evolving nature of the rules imposed on them with regard to jobs, especially as part of the plan to safeguard employment. It is very clear that, throughout this period, there has been a strong demand on employers to try to reduce the dimension of their restructuring plans. This demand has been translated into strict controls on the redundancy procedure imposed by judges. Despite the severity of sanctions introduced since 1997 (restructuring plan rendered null and void), this demand will not stop huge numbers of jobs from being lost and will make the restructuring issue highly controversial.
A response to unemployment was given by the reforms of working time, known as 'RTT' or 'the 35-hour week', in 1998 and 2000. These reforms forced companies to negotiate, allowed them to introduce new forms of flexibility and made them adapt to market demands within a negotiated framework. In 2003, the development of RTT in small companies was stopped.The results of RTT are highly controversial and contrasting.
Lastly, concerning equal treatment, French labour law effectively reinforced all its mechanisms: extension of the principle of equality of treatment, reinforcement of the fight against discrimination and all forms of harassment (sexual and moral). The French legislator has however not introduced an equal opportunities policy.
The introduction of an equal opportunities policy comes up against the barriers of formal equality and clear political and social inertia.
It can be concluded that, over this eleven-year period, the influence of Community law increased in terms of both legislation and jurisprudence. There has been a great deal of learning about techniques, reasoning and procedures in every sphere of drawing up and applying labour law.There is however still some reluctance about applying social directives.
The approach to labour law is still a national one. In France, there is still no thought of developing labour law rules on a European scale, though it should be noted that the European Employment Strategy (EES) is starting to have an effect.The EES has forced the government to introduce permanent consultation with unions and employers over employment (but without tripartite negotiation), the guidelines are taken into consideration when reforms are envisaged (reform of the labour market envisaged in 2004, extension of working life in 2003), and exchanges of 'best practices' are opening up to new ideas about ways to fight unemployment.
It appears that France is slowly opening up towards Europe, as can be seen by the analysis and taking into consideration of employment policies followed by other European countries.
However, the significant advances made in France as a result of Community influence have been brought about by 'hard law'. Certain domains have only changed in France due to the creativity of Community social law (equal treatment between men and women, burden of proof in cases of discrimination, European works council and health policy).
It is also very difficult to analyse the extent of existing convergences with other countries in the European Union.
It appears that these convergences can be seen when they are the result of both the market (pressure linked to competitiveness) and government decisions.This is the case with: the general move to find new forms of flexibility in contracts; the move to decentralise collective bargaining; the diversification of initiatives to help the unemployed; and the individual treatment of the latter. Similarly, it seems that the move to reinforce fundamental rights is a response to the insecurity generated by the market and the globalisation of the economy.
But if we look carefully at the techniques chosen, we can see the limitations of this approach in terms of convergence. For example, the very notion of flexibility expresses itself very differently because of the counter-balances that are organised and introduced.
At the heart of its paradoxical changes, labour law in France shows clearly that the balance between job security and flexibility is the outcome of forms of arbitration that are constantly being questioned, linked to the rules and techniques chosen.
It is important to emphasise that social directives have acted as a base to allay fears of deregulation when political changes led to reforms in the areas of redundancy and working time.
Page 75
During the reporting period, the basic structures of German labour law remained remarkably stable. However, various initiatives by the legislator and the social partners have generated significant changes and modernisation processes.
With regard to state labour law, the Red-Green coalition has, since 1998/1999, been focusing more on minimum social protection than the previous Conservative-Liberal government did. Changes have been made in the areas of protection against redundancy, sick pay, temporary and part-time work, parental leave on the birth of a child, economically dependent work and adapting corporate codetermination procedures to a changing company environment. However, rather than bringing about a complete change of paradigms in labour (and social) law, these reforms have represented more of a change of focus in some areas. Particularly innovative (and also controversial) is the right of every worker to shorter working hours (right to part-time work) in the
Teilzeit-und Befristungsgesetz (Part-time Work and Fixed-term Employment Act) (2000/2001).
A number of initiatives introduced in the summer of 2001 under the 'Hartz Reform' are typical of this new trend.These initiatives were not translated into law on a one-for-one basis, but took, in some cases, the form of a compromise. This was (and still is) due to the parliamentary majorities which, since 2002, have created a stalemate between the Red-Green government and the Conservative-Liberal opposition in the Bundestag (Lower House) and the Bundesrat (Upper House: representation of the Länder).
In the meantime, the legislative packages Hartz I, Hartz II, Hartz III and Hartz IV have come into force: the many social law provisions aim to restructure the Bundesanstalt für Arbeit to make it an efficient service agency and to tighten up certain aspects of employment promotion law. In the area of labour law, the liberalisation of temporary agency work with a guarantee of equality for these workers is worthy of note. Where corresponding collective agreements apply, which is now the case, the statutory protection provisions for temporary workers no longer apply. The promotion of small-scale, self-employed people (the so-called Ich-AGs or ego companies), amounting to a virtual change of paradigms compared with the critical approach to economically dependent work in the 1999 legal initiatives, should also be mentioned. In other areas, too, the Red-Green government has adopted measures that in some cases reverse its own reforms introduced during the first legislative period (1998-2002). For instance, in the Teilzeit-und Befristungsgesetz, temporary contracts are allowed (without judicial control) for older workers (52 years +) and in the case of start-ups (up to four years). The amendments that came into force on 1 January 2004 weakened certain aspects of protection against dismissal: raising the threshold (for the application of the Kündigungsschutzgesetz (KSchG - Protection Against Dismissal Act) to businesses with 11 employees or more, rather than six or more, taking account of qualifications and social criteria when selecting workers for redundancy for business reasons, etc.The Conservative-Liberal government had already taken similar steps in 1996, but they were scrapped by the Red-Green government in 1999 for failing to achieve visible success in terms of labour market policy.
In principle, state law (labour law) must be seen together with the standards established in autonomous collective agreements.This is particularly true in Germany, where collective agreements play a more important role than in many neighbouring countries. Although, in Germany (too), the trade unions are in a relatively weak position, and a debate has been running for years about the supposed 'crisis of (general) collective agreements', the latter still govern directly (by precept) and, in some cases, indirectly (through various legal and practical measures) the employment relationships of some 80% of employees.The flexibility and innovativeness of German labour law is demonstrated empirically not only by the many openings in collective agreements for company-specific solutions, but also by data on movements on the labour markets (termination and renewal of contracts of employment, the 'job turnover rate'). Nevertheless, the discussion about the supposed over-rigidity of labour law structures continues.
In the autumn of 2003, a controversy erupted about the statutory introduction of saving clauses in collective agree-Page 76ments. The Conservative opposition (CDU/CSU) had proposed draft legislation that would have led to a fundamental change in the relationship between works agreements and individual labour contracts. This would have amounted to a radical break with the labour law structures developed by Hugo Sinzheimer even before the Weimar Republic [i.e. before 1919] and which prevailed for many decades. However, due to the resistance of the unions and constitutional concerns, it did not come about, although the political controversy continues1.
The influence of EU law on German labour law was very important indeed during the period under review. This applies to European legislation, in particular directives, as well as to the case law of the European Court of Justice.The following could be cited as examples: the equality principle, labour protection law, European works councils, working time law and employee claims in the event of transfers of undertakings. European labour law is much better known and accepted now in Germany. Its application does not pose any fundamental problems, despite the complexity of the relationship between European and national law.
The discussion on the impact of the European Charter of Fundamental Rights on national labour law2 has (probably) lost some of its momentum because of the stalemate on the European constitution resulting from the draft Constitutional Treaty.
With regard to the outlook for (European) labour law, it is particularly important to build interfaces and bridges between different types of contracts and between paid work and other activities, such as providing care and assistance within the family. It is broadly agreed that the labour markets are now changing faster than in previous decades.
The Danish and the Dutch debates led to the emergence of the term 'flexicurity' to describe a hybrid of flexibility and security.This idea is also being fleshed out in German labour law.
The country report confirms that, despite all the contradictions of labour law developments, illustrated by many examples of State and collective agreement law, economic efficiency and social protection do not have to be mutually exclusive.
Page 77
This report examines the evolution of labour law in Greece over the past ten years. This evolution is seen in four areas: first, the regulatory techniques of labour law; second, the possible transition from job protection to employability; third, the encouragement of adaptability of both workers and enterprises by labour law; and finally, the promotion of equal opportunities as far as employment and occupation are concerned.
A combination of factors (EMU3, EES4 and OMC5, EC legislation etc) has influenced the development of Greek labour law during the 1990s. Among the aforementioned factors, two served mainly as a force to accelerating changes in the field of labour law and labour relations: the Greek preparation for the country's access to economic and monetary union on the one hand and the European Employment Strategy and the Open Method of Coordination on the other. The European Union and convergence with the other Member States became synonymous with modernisation and normalisation, i.e. the pursuit of a solution to the widespread hidden economy and the establishment of a controlled and disciplined system of regulating labour relations similar to that of other European systems.
The main trend in the evolution of labour law in Greece during the reporting period is modernisation, meant as the search for some flexibility, through changes mostly in individual labour law, related especially to new forms of employment and working time. Changes were instigated by the EU, but performed in a national way. As a whole, the 1990s were characterised by a lack of innovation and radical legislative reform in the field of labour relations. Changes focused on the creation or modernisation of structures, infrastructures, institutions and mechanisms, many of which did not actually function or fell into disuse.
Changes were much sounder as regards employment policy. The EES forced Greece to include its legislative policy on labour relations within a national employment strategy, which until then was lacking. However, even today there is no unified legislative planning, as there is still no comprehensive strategy embracing a partnership approach with the social partners aiming to step forward labour law.
Two points represent a radical reorientation of Greek employment policy. Firstly, the promotion of active and individualised employment policies, together with a tightening of the conditions for entitlement to unemployment benefits; secondly, the abolition of state monopoly in job placement and the decentralisation of powers and functions from the state to private actors6.
Another major influence of the EES is that Greek labour law has acquired a new content, adapted to more horizontal issues, such as quality at work, active ageing, vocational training and lifelong learning, which were completely foreign to its legal tradition. This larger scope tends to lead to interconnection between labour law and other legal fields, especially tax law, social security law and education law.
Besides these factors, the need to adapt Greek labour law to EC legislation, as a form of hard law and as a result of the classic community method of governance, also greatly influenced the development of certain parts of Greek labour law - particularly in the fields of health and safety, gender equality and the restructuring of enterprises. To this must also be added the contribution of EC legislation in covering legislative gaps (Directives 93/104/EC, 97/80/EC, 91/353/EC, 98/59/EC), in improving existing regulations on part-time work (Directive 97/81/EC) and on parental leave (Directive 96/34/EC) and in protecting pregnant women (Directive 92/85/EC).
Page 78
It must, however, be noted that the incorrect transposition of Labour Council Directives are a frequent phenomenon in Greece, reducing the level of protection awarded to the workers. Many times domestic legislation simply reiterates the provisions of the directive, without accompanying them with the statutory prerequisites that would allow for their effective implementation and without adapting them to the Greek legal order.
In parallel, one should stress that other forms of 'non-binding' EU regulation ('soft law'), such as Green Papers, Community Action Plans, as well as broader horizontal strategies such as mainstreaming, were also important. Actions of an educational and informative nature played a large part in heightening the awareness and responsiveness of the Greek judges to Community law on gender equality. Although the implementation of EC labour law is a very complicated task, one should note that the possibility of challenging national labour law through preliminary rulings by the European Court of Justice (ECJ) was very rarely used.
The transposition of the Fixed Term Directive 99/70/EC, through Presidential Decree 81/2003, has actually become the most controversial issue of Greek labour law. Following an investigation, which resulted in official meetings of European Commission's officials with representatives of the Greek Ministry of Labour in January 2004, the Commission did not seem convinced that the Greek government had fulfilled its obligation to transpose the Fixed Term Directive into domestic law as regards the use of successive fixed term contracts in the public sector (Art. 5 of the fixed term Directive).At this time the Commission gave the Greek government formal notice by letter, in accordance with Article 226 of the EEC Treaty, allowing it a period of two months to respond.The EC is then likely to bring an action before the ECJ. The conclusion of successive fixed term contracts in the Greek public sector is a legal question with high social and political implications, which involves almost 45,000 employees, employed under this kind of contract.A number of Greek court rulings issued in April-June 2003 converted workers' successive fixed-term contracts into contracts of indefinite duration, on the basis of direct application of the EU 1999 Fixed Term Contracts Directive. It is very significant that the Greek courts avoided addressing the ECJ for preliminary rulings on the correct or incorrect adaptation of Council Directive 99/70/EC and its compliance or not with existing Greek law.
A recent development of significance in 2003 was the effect of the legal engagements derived for Greece from international labour conventions, which after having been ratified are considered a part of national law (Art. 28 Para. 1 of the Constitution), and take precedence over any national provisions to the contrary. A November 2003 decision by the Committee of Freedom of Association of the ILO stated that the system of compulsory arbitration provided by the Greek independent service OMED (Art. 16 Law 1876/1990) was no compliant with international labour Conventions 98 and 154, which have been ratified by Greek law. Therefore it recommended the Greek government start consultations with the most representative trade union and employer organisations in view of measures which will restrain compulsory arbitration in cases involving companies providing goods and services covering substantial and vital needs of the population (mainly public corporations).
This decision, which is binding for the Greek authorities, requires Greece to review its legislation on mediation and arbitration, through extended social dialogue with the social partners. The fact that this extrajudicial legal mechanism of resolving conflicts of interest was a product of political compromise in 1990, which reflected also a balance of powers between social partners, is likely to have an impact on social peace in the near future. A possible outcome of this change could be the individualisation of labour relations. Concluding collective agreements in several sectors or enterprises of the private sector -where either trade unions have a weak bargaining power or are completely absent -will be impossible, if unilateral appeal to arbitration is limited in theory to very few conflicts involving mainly public corporations, which in practice rarely reach OMED.
We should also stress that discrimination in the workplace is another field in which Greek labour law is expected to undergo drastic changes, under the influence of the Council Directive 2000/78/EC. New draft legislation, which will probably pass before the Parliament after national elections take place, will cover important legislative gaps, as Greece lacks specific anti-discrimination regulations, especially in terms of age discrimination and of sexual orientation.
There are two changes that are considered as the most significant changes to Greek labour law during the reporting period.
The first concerns the procedure of law-making.The way in which Greek labour law was formulated, changed. First, its drafting and content has evolved as an indirect effect of thePage 79 EES and the OMC. Under pressure by changes instigated by the EU, labour law has become more the result of consultation and social dialogue with the social partners than it was in the past. Besides the foundation of an Economic and Social Council (OKE) in 1994, as a central forum for social dialogue, the government introduced by law in 2003 two new social dialogue bodies: the National Committee on Social Dialogue for Employment and the National Committee on Social Dialogue for Social Protection. However, even today, legislative changes in the field of labour relations and employment do not reflect a real partnership approach.They are neither a product of a wider employment strategy nor of central negotiation and agreement between the state, employers and workers. For this reason, legislation remains fragmentary and not fully effective.
The role of collective autonomy in the law-making process has been strengthened during the last decade, but has not reversed the primary role of state legislation. Collective bargaining manifested dynamism and innovation only on the national inter-sectoral level and as this did not permeate to other levels, where more specialised regulations are still needed. Qualitative aspects of work have been completely neglected till now.What is needed is for the social partners to abandon the authoritarian state mindset which would have the state as the initiator of all regulations and for them to take on initiatives to regulate and deal with matters such as corporate restructuring, collective redundancies and their consequences, organising working time, the new forms of employment, life long learning, flexicurity etc., through innovative and radical collective agreements.We should also note that no European directive on labour law was ever transposed into domestic law through collective agreements.
The second change concerns the progressive transformation of Greek labour law, both statutory and autonomous (collective autonomy), into employment law, which, among its other aims, seeks to facilitate the demand for employment, its management and the re-regulation of the labour market. This change in the function of labour law is still in the early stages. It coexists with the traditional function of Greek labour law, which is the protection of workers' rights and jobs both as to their substance (limits on termination and end of work relations) and as to their contents (forbidding the unilateral change in the terms of employment contracts). Because of this, and according to the findings of this study, there is still no clear change in the function of Greek labour law from protecting workers' rights and jobs to regulating transitions from one status to another (i.e. from unemployment to active employment or from employment to training and career breaks) and from one employment profile to another (i.e. from dependent employment to self-employment or from stable employment to temporary and vice-versa).
One major challenge for Greek labour law is to tackle various forms of discrimination in the workplace and in employment in general, which go beyond the grounds covered by Council Directive 2000/78/EC. The most sound are those concerning blue-collar and white-collar workers, those employed in a private and a public law relationship and those employed with standard and non-standard employment relationships.
Inflation and complexity of legislation are also a result of the large number of EU labour directives which need to be implemented. This bloated legal system, based mainly in statutory rules more than in collective autonomy rules, has produced a de jure over-regulation of the Greek labour market and at the same time it has encouraged its de facto deregulation. This has rendered the Greek labour market intensely dichotomous in nature. One part, which includes undeclared employment (particularly in small businesses), and is a part of the hidden economy (which accounts for approximately 33-35% of the GDP), is flamboyantly flexible and not necessarily regulated - a fact which creates conditions for unfair competition. The other part, that of the public sector and the 'law-abiding' part of the private sector, remains rigid and over-regulated, but organised, nevertheless, by rules that are not always adjusted to its real needs. Besides that, there exists also a flourishing of the so-called 'grey zones of subordination', which are on the fringes of salaried and independent employment and which serve as a means to circumvent labour law.
Thus, there is still an imperative need to support and enhance the state control mechanisms which monitor the enforcement of labour law and of collective agreements on the one hand and the proper operation of the labour market on the other. Measures need to be taken to reduce the hidden economy, convert illegal and undeclared employment to regular employment, and to drastically deal with the phenomenon of 'pseudo-independent' employment, which distorts the image of salaried employment and transgresses labour and social security law.
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The Irish report indicates (with supporting statistical data) dramatic shifts in the development of Ireland's labour law over the past decade. In the course of the presentation, the development of Irish labour law during the latter half of the 20th century is outlined, and key challenges for the national economy at the beginning of the 1990s are outlined. The institutional context is presented, with emphasis upon the Labour Court, whose task primarily has been conflict resolution of a 'non-juridical' nature in relation to collective labour relations. The underlying framework established by labour law reforms in 1990 is presented, and this is set in the context of a desire to concentrate upon conciliation and non-legalistic approaches to dispute resolution.
Concerns are noted that the scope for 'industrial relations' has been narrowing in the face of increasing use of 'hard law' techniques (primarily, statutory interventions). This is considered to be even more problematic in the face of increasing numbers of EU measures requiring implementation into domestic law. Such factors have given rise to pressures for reform of the institutions and substantive content of Ireland's labour law.
Dramatic changes in the fortune and health of Ireland's economy are highlighted during the 1990s.The high speed of labour market change is identified as an immediate problem in the context of the economic downturn. In particular, dramatic rises in the incidence of part-time work are highlighted, and the fear of large-scale youth unemployment is noted. In the face of this, important measures to address the objectives of post-'Luxembourg Process' employment policy are evident in the most recent national pacts between the social partners. Note is taken of an increasing number of individual employment rights disputes being raised, together with a growing number of issues relating to discrimination of various forms throughout the Irish labour market.
It is concluded that severe doubts exist as to the adequacy and suitability of the institutions which have served Ireland's system well during the 1990s. Put starkly, if labour law is to be relevant in Ireland's post-millennium economy, that country's remarkable economic decline has to be arrested, the structural shortcomings have rapidly to be addressed, and a new 'Irish model' has to be developed out of the phoenix of the 'miracle' of the 1990s.
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The report on Italy highlights the essential characteristics of the national legal system, and underlines the changes that have occurred in labour law. The overall impression is that 'evolution' meant in the Italian case not a radical change in the system of legal and voluntary rules governing the subject matter, but rather an adaptation to a changed economic environment.
However, a complex and often unclear legal field has been created by numerous legal interventions, one following the other in a series of subsequent adaptations of previous rules. This legal technique does not always produce very clear results.The paradox is that an obscure style of the legislature is often adopted in the area of labour market reforms, which should, more than any other measure, bring about transparency and efficiency.
This point needs to be addressed as a serious challenge to the coherence of labour law in cases such as the Italian one in which the legislature has been hyperactive.
The decade taken into consideration has been interpreted with some flexibility, so that some important reforms in 1991 have nevertheless been mentioned, since their enforcement continued in subsequent years and also gave rise to change.
A recent Legge delega (L. 23 February 2003, n. 30) on labour market reforms, followed by Decree 10 September 2003, n. 2767, brought about major changes in Italian labour law. It originated from the October 2001 so-called 'White Paper on the Italian Labour Market', drafted by a committee of academics, under the auspices of the Ministry of Welfare, soon after the elections and the victory of the centre-right administration.
There is wide and articulated discussion on the impact that such new measures will have on Italian labour law as a whole. Opinions are currently split between those who think that this will introduce a complete change of perspective in the discipline and those who see elements of continuity in an evolution which inevitably moves towards reduced guarantees, both for the individual and the collective actors, in view of a more flexible labour market.
References to this new piece of legislation are made throughout the report on Italy, albeit in a brief and informative way. Part of this legislation is, in fact, 'experimental' and may be subject to changes in 18 months time from the coming into force of the Decree. Other innovations introduced by this reform will need time to be fully implemented and evaluated, both in scholarly work and in case law.
Inputs from the EU were significant in the decade considered and are highlighted in the report. In the 1990s Italy faced one of the most radical and effective reforms of the public sector, relevant for the privatisation of employment contracts, but also part of a broader programme of economic recovery, essentially due to compliance with European economic guidelines.
Despite the fact that several changes in government occurred in the space of a decade, Italy entered EMU and gained from other Member States widespread positive evaluations of its economic performances. In 1994 and 1996 there were changes in the majority governing the country. In 2001 the latest change in the coalition winning the elections coincided with a dense agenda of labour law reforms.
The Italian employment rate is among the lowest in Europe (an average of 54.6% in 2001, for people between 15 and 64). The increase in the employment rate was significant in the years 2000-2001, amounting to 2%, thus reflecting an improvement in economic growth, reaching almost 3% in 2000.
Like other European countries, Italy is now suffering from the negative effects of reduced growth in the economy. Labour law may become instrumental to a debate on economic stability. It is, at times, over-evaluated, as if rigidities in the labour market were mainly due to the burdens placed by legislative measures both in individual and collective labour law. On the other hand, it may also be that the relevance of measures enhancing social consensus be under-evaluated and reforms with a very low social acceptance are pursued anyway.The latter explanation is at the origin of the frequent recourse to general strikes in very recent years.
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The report on Italy shows that concertazione and a consensual climate in the relationship between government and the social partners has been one of the recurring elements in the Amato, Ciampi and Prodi governments. Important labour law reforms were the product of this political climate.
It is not without relevance that such a consensual climate allowed also an innovative and original thinking in the contested area of welfare reforms. They were started by the Amato and Ciampi governments and found an exceptional outcome in 1995, with the Dini reform of pensions, launched by the centre-right Berlusconi government and yet agreed upon with the unions, due to an open and transparent bargaining mechanism, which allowed for some concessions to the interested parties.
On the contrary, opposition to the present centre-right government with regard to the proposed reform of the pension system saw again, as in the most recurring Italian tradition, all three main confederations acting together, despite the lack of a formal unitary structure.
It remains to be seen, as previously mentioned, whether the current administration and the new law intervening in several areas of labour market regulations will put a totally new mark on Italian labour law. Concertazione has been a less simple exercise than in previous governments and the unions have reached high levels of disagreement among themselves. Labour law is therefore facing potential changes in the political and union climate, as well as in its contents, both in legislation and in collective bargaining.
The report on Italy also deals with areas of labour law in which the transposition of European directives has given rise to significant discussion among policy-makers and scholars. The delay in complying with European deadlines - still a recurrent feature of the Italian legislature - may appear incoherent with the diffuse pro-European approach of public opinion and with the capacity shown by Italian politicians to make economic constraints acceptable in view of the adoption of the single currency.
The answer probably lies in the difficulty for the national bureaucracy to adapt to external demands within a given time and to the slow law-making process, subject to constant compromises to be reached within large and highly differentiated political coalitions. However, compliance with EES may introduce changes in some structures of the administration and impose some coherence in the preparation of NAPs. This is not yet a well-grounded practice and will require more attention by policy-makers.
No significant shift can be detected between law and other regulatory techniques. Collective agreements are, in some cases, parallel sources to the law and raise problems in interpretation when they deal with delicate matters, such as collective dismissals and redundancies.
Even in the recent reform of the labour market, collective agreements should continue to be relevant. In some cases collective agreements have a very wide scope. For instance, they can indicate activities for which the recourse to agency work is allowed. They have in such cases a function parallel to the one assigned to the law, inasmuch as they broaden legal provisions.
To take another example, in the recent reform on part-time work, collective agreements are no longer deemed necessary for the definition of clauses on 'elasticity', namely the unilateral modification of working conditions decided by the employer. This implies that individual employees are exposed to such unilateral exercise of managerial prerogatives, and collective sources are not considered a protective measure but an impediment to a case-by-case agreement.
Commentators are pointing, therefore, to the potential dangers enshrined in this new function of collective agreements, particularly in the light of the 2003 reform which gives an unclear role to most representative unions.
In the decade taken into consideration, collective bargaining has functioned within significant economic constraints.This is also one of the reasons why decentralised bargaining has not been a relevant feature.The macro-economic framework has dominated the evolution of bargaining policies and wage policies in particular. The control of inflation has therefore prevailed over the creation of employment, but the philosophy of the whole 1993 Protocol of agreement on bargaining levels has been valued positively. In such a Protocol decentralised plant agreements are supposed to integrate national ones and not to deal with subject matters that are already covered. The present government has announced a review of the 1993 Protocol.
Legislation on immigration is of relevance in the current Italian debate. Its recent developments, related to the controversial enforcement of the so called Bossi-Fini 2002 law are, on one hand, intertwined with similar measures adopted in other EU countries. On the other hand, measures typical of the Italian system are the object of close observation.This is the case, for instance, of the 'contratto di soggiorno', an unusual contract under which an immigrant needs a contract of employment to become a legal resident.
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One of the most important outcomes of the evolution of labour law is in the area of social inclusion of immigrant workers. Italian labour law shows, however, its difficulty in gaining an overall coherence in this field.
In the section on job security and employability, attention is given to the reform of the hiring system.The technicalities of the reform are intertwined with Job Centre, a contested ECJ decision, which put the Italian legislature under severe pressure and showed how in practice negative integration can take the place of a coherent approach through positive integration. Such a reform is still controversial and has been in the agenda of the current government, thus showing how slow the adaptation of a public hiring system is to the liberalised rules of the market.
In the section dealing with adaptability, the most relevant legal reforms in the ten years have been analysed. They are part of the so-called Pacchetto Treu, a series of legal measures enacted when Tiziano Treu, a leading labour lawyer, was Minister of labour and social affairs. Some of these measures (all articles dealing with temporary agency work) have been replaced by the 2003 Decree; some other measures have been subject to changes.
The methodology inspiring labour law reforms - in centre-left as well as in centre-right administrations - is not separated by the aspiration to comply with European law.This is an interesting characteristic not to be underestimated. All legislatures, each of them carrying a different political orientation, claim to have the best approach to the implementation of European law. They often justify controversial initiatives in legislation as necessary steps in the implementation of EU law or as indispensable measures to improve economic competitiveness.
The reflection on the transposition of EU directives is still open among labour law scholars. The most controversial point, currently under examination, has to do with the interpretation of the so called 'clausole di non regresso', these are clauses inserted in recent European directives, which should not leave space for national legislation lowering existing individual guarantees. The issue of comparison among different legislative measures is a very complex one, since an apparent decrease in the level of protective measures may be intended as an increase in flexibility and, as such, an improvement in employability.
The evolution of Italian labour law has often been faced with this dilemma. It currently reflects a very urgent need to find a balance between internal strategies to grow and to develop, and external European demands to comply with supranational goals. The European Employment Strategy (EES) acts as an interesting element of dynamism and has on several occasions offered an opportunity to all actors involved to approach labour law issues with an overall perspective, rather than in a fragmented way.
One of the most relevant and original contributions that reformers can achieve is expanding the scope of labour law beyond the area of subordinate employees.This is not to say that there should be an over-weight of protective measures, just at the time when the need for flexibility in labour markets is still very high. Reforms which should characterise the evolution of labour law in the years to come have to do rather with a new distribution of legal guarantees among a wider circle of addressees. Modulazione delle tutele - an adaptation of guarantees - is one of the descriptions offered in the Italian debate of a possible and optimal trend in labour law reforms.
Proposals currently on the agenda of the centre-left political parties, in opposition to the current government, deal with a new 'statute' for workers who are not covered by a standard contract of employment, and without guaranteed continuity of their occupation. It is significant that the word lavori in the plural is being used to describe the area in which the most inventive exercises of a 'reformist' labour law should take place.This exercise is often linked to the area of social inclusion, functionally relevant for the evolution of labour law, since it aims at bringing into the labour market categories of the population which are either outside of it or at the margins.
It is interesting to note that, from a totally opposite point of view, the expansion of guarantees to the under-protected is claimed by the centre-right coalition and is part of the overall reform of the labour market currently under way. A 'statute' of a similar kind to the one previously described should be one of the next proposals put forward by the Ministry of Welfare, in order to complete labour market reforms.
In the section on equal opportunities, legislation on parental leave has been taken into account, as well as recent anti-discrimination legislation.
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The most interesting impact of European law and policies is visible in a 2000 law which introduces significant reforms in the previous 1991 legislation. Positive action is re-interpreted in its function and gender mainstreaming is attempted through the strengthening of consigliere di parità.
Decrees enforced in 2003 for the transposition of the 2000 EU Directives (2000/43 and 2000/78) opened up the system to the new concept of harassment, not regulated before. They also included among discriminatory acts those based on religion, personal conviction, handicaps, age and sexual orientation.These two recent Decrees have been criticised for the unnecessarily ample derogation set to the principle of non-discrimination. For instance, some requisites for the hiring of workers in the army and the police, as well as in jails, even related to the above mentioned areas of anti-discrimination law, are considered genuine qualifications for employment. Furthermore, a very wide derogation from the principle of non discrimination is introduced, with no link to specific cases, but simply based on 'objective justifications'.
In the conclusions, attention is paid to a study produced in 2002 by the research centre ISFOL, under the auspices of the European Commission, aimed at evaluating the impact of the EES on the Italian legal system and in particular on the evolution of labour law. This study gives rise to a series of considerations which should, however, be updated to deal with the most recent developments.
The impression one receives from looking at the ISFOL Report is that, up to 2001, there were reassuring elements of continuity in the legislation. Pressure put on the system because of European targets was visible and beneficial. The most interesting phenomenon is how a soft law procedure was combined with hard law reforms.
The question is whether national administrations should become the leading force in the implementation of policies. If such a technical and objective expertise could regularly inspire the administration in its role of proposer, the legislature would receive a more specialised support. It could still follow its own agenda and yet establish a strict correlation with internal branches of the public administration.
We can therefore see two very different sides in the evolution of labour law. Legislation continues to be the expression of changing political alliances.At the same time, responses to EES are somehow dispersed through an implementation procedure which is external to parliaments.
Linking together soft and hard law regimes is one of the main challenges of modern labour law, torn between its internal coherence and its external supranational dimension.
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In Luxembourg, changes in labour law between 1992 and 2003 have been influenced by the special characteristics of the labour market. During this period, Luxembourg has continued to enjoy strong growth and an increase in jobs. In addition, the level of unemployment over the period has been one of the lowest in Europe.
The presence of 38% of cross-border commuters, a figure that has increased since 1995, shows that companies can have a breeding ground of qualified labour.
Lastly, the banking sector represents 45% of economic activity and is therefore a vital reference sector.
Labour law in Luxembourg has changed under the almost exclusive influence of Community law due to the obligation to transpose social directives and, since 1998, as a result of European strategies for employment.
This change has materialised in practical terms through changes in the law.The sources of labour law have changed very little, except in the area of collective bargaining, where controversial issues concerning union representation in certain banking sectors have led to a major reform programme.
Collective bargaining in Luxembourg remains very sector-based. Company-level bargaining has not significantly evolved, despite a reform carried out in 1999.
The mechanisms relating to employee adaptability are not very advanced: no specific requirements concerning contractual obligations; a continuing training system that is still in its infancy, apart from occasional, short-term training programmes according to employer needs; integration mechanisms for the unemployed that are directed mainly at young people.
This situation is explained by the specific nature of the labour market, which is a strong creator of jobs, and by the use of a cross-border labour force: this qualified labour force remains cheaper than retraining schemes.
The same trends can be seen in the area of employability. Though there are strict controls on contracts offering little job security and on part-time work, redundancy procedures, which are in line with Community law, give way to plans based on voluntary participation and early retirement. Here again we see the specific nature of Luxembourg's labour market as, despite the slowdown of growth, it continues to create jobs and does not require reforms to encourage employability.
Measures to help the unemployed are aimed particularly at young people and are not directed towards employees over the age of 54, most of whom are excluded from the labour market. Nor is there a retraining mechanism to help introduce long-term training programmes.
Since the Act of 12 February 1999, the legislature has tried to introduce flexibility in working time by allowing unions and management to lay down reference periods of up to one year for the calculation of maximum working time. This attempt has been unsuccessful, mainly because of the cautious union attitudes to rights given to employers to modify working time and the lack of sufficient compensation linked to the introduction of this flexibility. However, in 2003 it was extended to 2007.
Despite encouragement in the guidelines to move towards greater flexibility, and the existence of a genuine tripartite dialogue over employment issues, there have been no new reforms.
With regard to changes in labour law aimed at reconciling working life with family life, there has been significant evidence of a will to keep women at home. The most important measures concern parental leave and, to a lesser extent, part-time work. At best, collective agreements have led to extra leave for family reasons.
However, under the influence of the EES, the Luxembourg government is introducing measures to encourage women to join the labour market and crèche-building programmes to help increase the number of women going out to work.
On the ground, the appraisal of equality of opportunity gives very clear results: Community legislation is well transposed in Luxembourg but does not give rise to any real initiatives.
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The high level of salaries in Luxembourg, allows couples in many situations to live on one salary, which increases the social authorities' inertia on the issue of women at work. However, the number of women at work is increasing, but remains well below the European average.
On the other hand, protection of individual liberties is effective in terms of the fight against discrimination (major policy in favour of the disabled), sexual harassment and the protection of personal information (2002).
In any case, it is very clear that changes in labour law in Luxembourg closely interact with Community social law in terms of the impact of restrictive norms and of employment strategies, which have reinforced tripartite negotiation.
The reference period is considered to have given rise to a great deal of legislative activity due to the transposition of a large number of directives that have led to the most evident changes in labour law (particularly with regard to the protection of workers in the most insecure situations, discrimination, European works councils, organisation of working time and the processing of personal data).
The modernisation of labour law is also due to Community social law, particularly with regard to work inspection, which was introduced when the directive relating to the posting of workers was transposed.
However, Luxembourg will probably have to strengthen its industrial relations system and increase employee adaptability and employability to meet the employment guideline objectives, especially those relating to the number of working women and the prolongation of working life. However, one can assume that significant reforms will only take place if the flow of cross-border workers were to be reduced.
The economic situation is still very favourable in Luxembourg, which explains the differences with neighbouring countries.These differences reinforce the idea that convergence take place if there is a need in the national labour market that fits with the guidelines.
However, changes in labour law in Luxembourg also show that these laws are very unlikely to be modernised without some form of Community obligation and that the influence of the guidelines, and of 'good practices', opens the way for discussion in Luxembourg, which is accompanied by action or incentive programmes.
But it does not appear that the guidelines are sufficient in themselves to change the behaviour of businesses in Luxembourg or lead to significant reforms if these are not imposed.
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The Netherlands is often looked upon as a 'model country' for solving employment and labour issues.The origins of the Dutch model, often referred to as the 'Polder model', date back to the end of the Second World War. An important step in the development of labour relations and labour law in the Netherlands took place with the 'Wassenaar Agreement'. In 1982, in the village of Wassenaar, near The Hague, the leaders of the most important national trade union (FNV), and the most important employers' association (VNO) reached a historic agreement. The impact of the Agreement on Dutch labour law has continued until the present day. A drive towards more flexibility has been dealt with on the basis of centralised labour-management agreement.This way of dealing with labour issues has served as a basis of what became known in the 1990s as the Dutch Polder Model.
The use of flexible labour relations became very popular during the 1990s. The courts accepted these new forms of flexible labour relations, but in case of long-standing relations they often granted the worker with the regular protection of employment contracts.The unions gradually accepted the need for flexibility in the employment contract.
In 1996 a new deal was reached by the Foundation of Labour. The central organisations of management and labour agreed upon a report called 'Flexibility and security'. This was a 'package-deal': the unions wanted to preserve the system of preventive checks on dismissals of regular contracts by the government in order to protect workers against unfair dismissals. The employers accepted this in exchange for greater flexibility in other types of contracts, especially fixed-term contracts.The unions also accepted the 'on call-contracts' and Temporary Work Agencies in exchange for a stronger position of workers dependent on these types of work.The deal is summarised in the concept of flexicurity.
In the 1980s and the 1990s the pressure for a major reform of the law on dismissals was high. The Dutch law on dismissals was analysed as one of the most rigid systems of Europe.The existing procedures required almost every single dismissal to be approved beforehand by a third party, either a high-ranking civil servant or the local civil law court. The political debate on the reform of the law jumped from one solution to the other but it was only in the mid 1990s that the ground was apparently fertile for a compromise solution.The trade union movement was ready to renounce excessive pay claims if the law on dismissals were maintained. And it was prepared to give up its ideological resistance against flexible work contracts if the law would provide atypical workers with more rights and job security. The social partners endorsed this project in an agreement of 1996, which was subsequently implemented by two acts of parliament, the Act on Labour Market Intermediaries and the Flexibility and Security Act.
Traditional work incapacity rules in the Netherlands have created problems for many years, certainly in budgetary terms. It has also been seen as a problem for the employability and adaptability of the workforce. New regulations on work incapacity in the Netherlands have set a new scene for ongoing employment and adaptability of workers. The so-called 'Law Improvement Gatekeeper' (Wet Poortwachter) is the most recent example. Sick workers and employers have to cooperate in the re-introduction of workers in the employment process.
In the Netherlands, part-time work is generally accepted as 'normal' work. The implementation of Directive 97/81/EG concerning the Framework Agreement on part-time work (O.J. 20 January 1998, L 14) did not pose a big problem in the Netherlands.
It has always been possible in the Netherlands to conclude a first fixed-term contract freely, for whatever purpose and whatever period. In principle, its use has not been legally restricted. As a result of the agreement on flexibility and security of 1996, the Dutch government introduced a new system of fixed-term contracts. Under the present rule (Article 7:668a Civil Code), it is possible to have three consecutive contracts that may be ended without having to give notice, as long as they fall within a period of three years.The fourth contract, or the contract that makes the total working period from the beginning exceed 36 months, will change automatically (ex lege) into a contract for an indefinite term, which gives the worker the aforementioned protection against dismissal.This change is an important form of deregulation that is expected to make the fixed-term contract more attractive for employers.
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The popularity of on-call contracts in the Netherlands is rather high. It is estimated that around 6% of the workforce are employed under this type of contract. The Act on Flexibility and Security firstly aims to strengthen the position of workers with on-call contracts.
In a 1996 agreement with the unions, the Dutch Temporary Work Agencies' organisation (ABU) accepted the principle that temporary workers were working on the basis of an employment contract. In exchange, the unions accepted Temporary Work Agencies as normal employers who, as such, do not require specific government supervision. By January 1999, this agreement was formalised in the Civil Code.The system of permits was abolished on 1 July 1998, according to the new 'Act on Allocation of Workers by Intermediates'. Temporary Work Agencies are now free to operate like any other company.
On 16 July 2002, the central EU-level social partners formally signed a new EU-level framework agreement on telework. In the year 2002 there was, however, no specific response in the Netherlands to the European agreement on telework.
Recent trends in the Netherlands also show more focus on internal flexibility rather than on external flexibility, implying a stronger attention to the reconciliation of work and family life. On 22 November 2001, a new Work and Care Act was passed, which regards flexibility from the employee's point of view. It still has to be seen what the practical effects of the law and its application are over the next few years.
With regard to sex discrimination, the issue of the implementation of Directive 2002/73/EC has been dealt with in the Dutch Parliament. Depending on the results of new pieces of European legislation, a modification of the Dutch laws will be considered in the near future. In the context of equal treatment on other grounds than sex, two new laws have been discussed (or are in the process of discussion) in the Dutch Parliament, largely in response to EU Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, as well as for the implementation of EU Directive 2000/43 with regard to discrimination on the basis of race and ethnic origin.The most problematic issue is that of age discrimination. The Dutch Supreme Court has taken a reluctant viewpoint with regard to age discrimination. The reticence of the Supreme Court is likely to be a result of the fact that the issue has only moved slowly in Parliament during the past few years.
The comprehensive Dutch approach to the reconstruction of the law on dismissal and on flexibility, addressed under the word 'flexicurity', and captured within the concept of the Polder Model, was revived at the end of 2002 and also at the end of 2003. In this period, central social partners and the Dutch government concluded central agreements on several issues of social economic policy, with the purpose to function as guidelines for the collective agreements at sectoral level and company level.There are some discussions on the evaluation of the system of collective bargaining and collective agreements, which concentrate on the question of how to use the benefits of that system while also developing more flexibility within the framework of collective agreements. The reality is that collective bargaining agreements remain a fairly popular instrument with a reasonable scope of coverage.
In a recent report from the Dutch Ministry of Social Affairs and Employment (Parl. Docs. I 2001/2002, 222a, n°9c) the coverage of collective bargaining agreements is explained. It appears that in the Netherlands, 53% of employees (except higher management, but including civil servants) are covered by a sector collective bargaining agreement. 12% is covered by a company collective bargaining agreement. 7% of the employees are covered by a sector agreement after its extension. 16% is not covered by a collective bargaining agreement.The union density is about 20%.
With regard to 'yellow unions', the Ministry of Social Affairs and Employment has issued a decision which provides more insight into the conditions of 'independence' of such unions under the ILO Convention 98 (Decision of 1 December 2003, n°AI 20.027,Annex State Gazette 3 December 2003,234).This decision became necessary because many companies deviated from general framework collective agreements through company collective agreements. Indeed, if a company is already bound by a company collective agreement, the extension of sector agreements can be avoided. The Ministry now has a form of control over the independency of the yellow union (such as financial independency from the employer).
With regard to dismissal law, the number of dismissal permits rose by 15% in the third quarter of 2003 compared with the third quarter of 2002. The Centres for Work and Income (CWI's) issued permits for 15,134 employees in 2003 as opposed to 13,137 last year.These figures are basedPage 89 on the dismissal statistics on the third quarter of 2003 published by the Ministry of Social Affairs and Employment. In the second quarter of 2003 the number of dismissal permits issued was 20% higher than in the second quarter of 2002. The number of dismissal permits rose by 15 percent in the third quarter of 2003 compared with the third quarter of 2002.
The current 'Cabinet Balkenende' also proposes to revise the Working Hours Act. The number of rules on maximum working hours and night work needs to be reduced dramatically, according to the cabinet, and the separate rules for overtime work should be repealed. It is argued to be sufficient to set the maximum number of working hours at 12 hours a day and 60 hours a week. These are the Cabinet's proposals for simplifying the Working Hours Act that the Minister for Social Affairs and Employment presented to the Lower House of Parliament.The Cabinet's position is intended to serve as a basis for a debate about simplifying the law. These proposals are part of an action plan entitled 'Simplifying Social Affairs and Employment Regulations', which is based on the coalition agreement of the first Balkenende government. In the Cabinet's view, the new Working Hours Act should provide only a limited set of basic rules.The simplified law is in keeping with international worker protection standards. Simplification of the law is expected to strengthen the Netherlands' position on the international labour market.The Cabinet wants the Working Hours Act to offer employers and employees more latitude for making collective and individual agreements about work and rest periods. In addition, the Act should not impose more restrictions and contain more rules than necessary to protect the health, safety and welfare of employees.The new Working Hours Act should set the maximum working hours at 12 hours a day and 60 hours a week. Employees should not be required to work more than an average of 48 hours a week within a 13-week period.This would give employers and employees more discretion in scheduling daily and weekly working hours.
The Working Hours Adjustment Act makes it easier for employees who want to work more or fewer hours to adjust their working hours accordingly. The law gives employers and employees more legal security and makes it easier for women in particular to keep working. However, workers and small-scale employers are not familiar enough with the law, especially an employee's right to expand the number of working hours.This is the conclusion of the government based on research into the efficiency of the Working Hours Adjustment Act.
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The ten-year period we have analysed in this report has meant for Portuguese labour law a number of very relevant changes, affecting almost every aspect of the legal regulation of the labour market.
By 1992 Portugal's labour laws had already suffered some parallel processes of reforms, as a reaction to a number of factors: the adaptation to a democratic constitution, after the fall of the dictatorship in 1973; the increase in the quality of labour law, extending and reinforcing its protective measures; the need to adapt to the impact of the successive economic crisis; and, finally, the duty to implement the European acquis in the field of labour law.
Portuguese labour law, when dealing with employment problems in the 1980s and 1990s, was forced to progressively introduce techniques of flexibility in many institutions of the labour market, but it never accepted an overall flexibilisation of labour law, nor a general deregulation of the labour market. Instead a different technique was adopted, using legislation as an instrument to adapt traditional labour law to the new demands. In the 1980s this process of reform had already started, and a number of labour institutions were affected.
In the 1990s the process continued and increased its pace and intensity - particularly in 1991 when an important reform was enacted, affecting a number of relevant pieces of legislation.The decade being analysed in this report experimented with a number of these reforms, changing the face and dynamic of Portuguese labour law. Among others, legislative interventions have taken place in the fields of:
* Workers' right to be informed about working conditions;
* Individual and collective dismissals;
* Protection of wages in case of insolvency;
* Work of minors;
* Work of foreigners;
* Posted workers;
* On-the-job training;
* Health and safety at work;
* Temporary work agencies;
* Working time.
In many cases these reforms were the implementation of previous agreements in the context of social consultation practices, a distinctive feature of Portuguese labour relations during this period. There were also a number of legal reforms during this decade implementing European labour law directives.
The legislative technique used during this period also meant a new factor of complexity for labour law in Portugal. Its reforms have been put into practice through a number of small, precise interventions, which in many cases have not substituted older pieces of legislation, but rather added to them as exceptions, special regimes and the like. The result of this approach has been a strong increase in the complexity of Portuguese labour law, which causes practical problems in the legal system. In order to avoid them, a project for a Code of Labour Laws was elaborated through a long and complex procedure, before being finally passed in November 2003.Although many of its rules will not be applicable in practice until some lower level regulations have been approved, this is very likely to happen during 2004.
The Code is divided in two parts, the second one dealing with criminal and administrative liabilities.The first is divided in three parts: a general part; a part on individual labour law, and a part on collective labour law. The whole text clearly shows a general objective of increasing the level of flexibility in the regulation of the employment contract, something which can be easily seen in matters such as working time, the place of work and the content of work.
There is also a general tendency to use the instruments and categories of private law to regulate the employment contract, thus increasing the level of individual self-determination in its constitution and development.
Article 4.1 of the Code states a general rule, that its regulations can be overruled by any instrument of collective regulation, except in cases explicitly mentioned by the Code.This rule means a real change in a long-lasting tradition of relations between statutory law and collective agreement, where the latter could only improve the levels set by the former.
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During the decade we have analysed, Spanish labour law went through a strong process of reform, which affected not only the regulations of most labour market institutions, but also the philosophy, objectives and priorities of labour law itself.
By 1992 a number of changes had already occurred, but most of the contract of employment regulations remained the same. Prior to 1992, employment policy concerns were but one of the factors affecting the evolution of labour law; there were others, such as the implementation of a democratic system of labour relations or the effect of Spain's membership of the Common Market. In general, those reforms, aimed at improving the critical employment situation in the country, did not alter substantially the legal regulation of the contract of employment. On the contrary, these reforms focused on fixed-term contracts, a particular feature of Spanish labour policies up to 1994, and the other aspects remained mostly untouched.
The 1992-2002 period witnessed a completely different attitude and strategy of the government, the parliament and social partners regarding regulation of the labour market. After the failure of the 1980s strategies, a different, more profound and systematic, approach was needed, trying to put flexible regulations through all aspects of the labour market. In 1994 a very important and far-reaching reform took place, affecting almost every aspect of labour law.This reform introduced strong elements of flexibility in the regulation of the contract of employment; it started a process of liberalisation of the labour market; and also transferred to collective bargaining important regulatory functions, previously held by state legislation.The face of labour law in Spain changed substantially after 1994.
For the rest of the period a number of additional reforms of the main pieces of labour legislation took place, although not as extensive as the 1994 one. In 1997 a big reform was enacted, implementing a social agreement of the same year. At the end of the period, two more labour law reforms were enacted in 2001 and 2002, implementing the labour policies of the second conservative government. Besides these general reforms, a large number of specific acts on labour law were enacted, most of them implementing EU directives: posted workers, European works councils, protection of 'mother workers', etc.
All these reforms tried to correct the evolution of the Spanish labour market, which suffered not only from high unemployment, but also from a strong rise in fixed-term work. The objective was to reduce entry flexibility through fixed-term contracts, and to increase internal flexibility, through new rules governing the employment relationship.
Exit flexibility, mainly the cost of dismissal, was a taboo in Spanish labour relations, so it was not directly faced. Nevertheless, a number of measures were taken in order to reduce the different costs of termination in fixed-term and indefinite-term contracts of employment, a factor that produced a strong imbalance in the labour market, increasing the presence of atypical work.
In the second half of the period being analysed, an interesting change took place in the evolution of Spanish labour law. A number of legislative measures were enacted, containing regulations that were more protective towards workers, and less flexible as a whole. These reforms, which were the direct consequence of a revival of social dialogue during these years, meant a change of direction, some steps backward in the road to flexibility.The concern was no longer to create as many jobs as possible, but to create good jobs, meaning these measures were aimed at the quality of jobs being created, and not only their quantity.This development ended by the turn of the century, when the 2001 and 2002 labour law reforms meant a new change of direction, these being more receptive to the traditional techniques and goals of flexibility.
Generally speaking, the Spanish model of flexible labour law did not mean deregulation, but rather an increase in the size and number of labour laws. Special rules for certain situations, more exemptions, detailed processes for some decisions, all these had to some extent an effect of inflation of the legal order, making it more difficult to know and to apply.
Not much of this labour law policy changed during the year 2003. The two previous years saw two important reforms: one of labour law itself, in 2001; and the second on unem-Page 92ployment benefits, in 2002. Although for the first nine months of the year almost no new pieces of legislation were enacted, this trend changed and some important new acts saw the light. These acts were: Ley Orgánica 14/2003, on rights and duties of alien citizens, which regulates, among others, conditions for the access to employment of immigrants; Ley 51/2003, on equal opportunities, non-discrimination and access of disabled citizens; Ley 52/2003, on social security; Ley 54/2003, reforming legislation on health and safety; and Royal Decree 326/2003, enacting the legal status of the 'Becario de Investigación', researchers working under a grant or fellowship.
This last piece of legislation deserves some attention, as it is the first time Spanish labour law regulates something close to a semi-labour status for a group of persons. These researchers, not being workers technically speaking as they do not have a contract of employment, nonetheless they get some protection from the public system of social security as if they were workers.
From the point of view of the evolution of Spanish labour law itself, the most relevant piece of legislation during this period has been Ley nº 56/2003.This 'Ley de Empleo' regulates employment policies and public placement agencies, trying to build a comprehensive legal framework for all employment-related policies. This Act was strongly needed, as the piece of legislation still in force regulating these issues, the 'Basic Act on Employment' ('Ley Básica de Empleo'), from 1980 was severely outdated, coming from a completely different model of labour market regulation.
The new 'Ley de Empleo' is a rather complex piece of legislation, which tries to respond in a single text to a number of different legislative demands. One of the main issues to be dealt with at the moment is the question of legislative powers to deal with employment issues. The Spanish Constitution of 1978 did not foresee employment as a power of either the central state or the regions; during the 1980s and 1990s all regions developed employment policies of their own, including placement services. And a number of transferences of powers from the state to the regions took place. Now the situation is rather complicated, and the Constitutional Court has not been able to give a clear answer to all the problems being raised. In a way, this 'Ley de Empleo' deals primarily with this question, facing a major problem in the development of labour market regulation. For the rest, it does not change much of the real regulation of placement and employment policies, as it follows the same model of cooperation of public and private (non-profit) initiatives already in force in Spain since 1994.
Besides this 'Ley de Empleo', the most important development in the field of labour law during 2003 took place on the last day of the year, when the traditional act on social, financial and economic matters was passed.This is a peculiar piece of legislation which is enacted every year along with the Budget of the State (the so-called 'Ley de Presupuestos Generales del Estado'); it embodies a number of measures of diverse nature and scope, and sometimes it is used to approve measures of implementation of European directives, if the deadline is about to expire.This is what has happened this year, and the act on social, financial and economic matters of 2003 included a chapter on non-discrimination, in order to implement the recent directives on this topic. Therefore, it includes a whole chapter which, under the title 'Measures to implement the principle of equal treatment', deals with a number of aspects of this matter, including an extensive treatment of discrimination in employment. This chapter, Chapter III in the Act, is divided into three sections, the first on general rules, the second on non-discrimination on the grounds of race or racial origin, and the third one on equality and non-discrimination in employment.The grounds for discrimination under the scope of this new legislation are the same as foreseen by Article 13 of the Treaty.
In Section 3 a number of provisions related to fighting discrimination in employment are introduced, including a new definition of discrimination, harassment, positive action, etc. A number of articles of the 'Estatuto de los Trabajadores' are reformed, to introduce explicit references to non-discrimination: Article 4, which states fundamental rights for workers; Article 16 on placement; and Article 17 on non-discrimination. Other pieces of legislation are affected as well: legislation on the procedure at the labour courts ('Ley de Procedimiento Laboral'); the act on posted workers; the act on integration of disabled people; the act on labour administrative sanctions; etc.
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The development of labour law in Sweden has, since the 1990s, evolved around three different - but partly interrelated - themes: the discussion on flexibility, the 'Europeanisation' of labour law, and the importance of equal treatment and other individual human rights.
The starting point in the debate on the evolution of labour law has usually been the economic crises of the early 1990s. The argument has been that the labour law must provide more room for flexibility in order to promote economic growth and rise in employment. The discussion has often focused on the Employment Protection Act. The private employers' confederation, with support of among others the Conservative Party, has argued for a far-reaching deregulation, while the trade unions, mostly backed by the Labour Party, have defended the existing legal regulation.The debate has been rather hostile and the social parties have not been able to influence the legislator. The debate has resulted in some changes of the regulations of the Employment Protection Act regarding redundancies and fixed-term work. Most of the changes were later repealed and the law was restored to its former condition.The changes that have survived concern minor issues. Despite the extensive debate, the legislative changes that have actually taken place have been rather few. On the other hand the substance of collective agreements concluded during the same period have undergone a dramatic decentralisation, in moving from detailed regulation to framework agreements, leaving generous leeway for negotiations at company level.
Sweden became a member of the EU in 1995.This event is certainly the most important factor in explaining the development of Swedish labour law during the last decade. A series of new acts have been adopted in order to transpose EC directives. It is no exaggeration to say that most of the legislation adopted during the period is a response to the demands of the Community legal acts.
The discrimination legislation constitutes an area where the changes that have taken place are most significant. A new Equal Treatment Act was adopted in 1991 and this Act has been strengthened several times. In 1999 Acts concerning discrimination on the grounds of ethnic origin, sexual orientation and disability were adopted.This development is partly due to the membership of the Community, and partly a response to domestic political demands.
Alongside the equal treatment issues, individual human rights issues have gained importance. In 1994 the European Convention on Human Rights was incorporated into Swedish law.The Convention has had a significant impact on the labour law debate (e.g. the questions on negative freedom of association and privacy for employees).
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The report on the United Kingdom offers a brief picture (with supporting statistical data) of labour law developments over the last decade. Fast-changing features of the labour market and industrial relations are illustrated. Labour law approaches and techniques, faced with key challenges of 'employability', 'entrepreneurship', 'adaptability' and 'equal opportunities', are then presented in a Common Law context.
The legacy of traditional collective bargaining is emphasised, where concepts such as 'social dialogue' do not fit easily into the UK mould. It is noted, however, that declining levels of collective organisation have reduced the impact of bargaining, and there has been a shift towards single-employer bargaining within the enterprise. Overall, there is a well-established trend towards self-employment, part-time, fixed-term and temporary working.
It emerges that much of the structural modernisation needed to deliver 'employability' had already been addressed between 1979 and 1992, while UK experience during the 1980s is now being reflected in other EU Member States. Measures to upgrade workforce skills are well-rooted, and particular attention has been paid to measures for young people and long-term unemployed adults.
The historical model of 'collective laissez-faire', based upon 'free collective bargaining', has dramatically and consistently given way to 'hard law' normative legislation.This is the case for 'employment protection' in relation to dismissal, as well as measures such as the national minimum wage.There is a modern trend towards establishing labour law protections within frameworks designed to address problems of discrimination, equal opportunities, and ensuring 'fundamental rights'.
The responsiveness of UK labour law to changing patterns of work is found to have been sluggish. It is suggested that UK labour law at the beginning of the 21st Century remains constrained by traditional concepts -including 'the employee','equality of bargaining power', and a host of other issues. Consequently, it is concluded that UK labour law stands ill-equipped to respond effectively to the swiftly-changing phenomena emerging in a labour market which has changed out of all recognition over a quarter of a century. Added to the position of the UK outside the 'euro-zone', this raises serious question marks over the ability of UK legal regulatory structures to respond adequately to the challenges of post 'Luxembourg Process' EU employment and social policy.
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[1] For the latest, see: Buschmann,AuR 2004, p 1 ff.
[2] See Däubler AuR 2001, p. 380 ff; Weiss,AuR 2001, p. 374 ff. Zachert, NZA 2000, p. 1041 ff. = ibid in Lavoro e Diritto (Labour and Law), p. 507 ff.
[3] Economic and Monetary Union.
[4] European Employment Strategy.
[5] Open Method of Coordination.
[6] i.e.Temporary Employment Agencies, private Labour Offices and other private agents, which were authorised to get involved either in the job placement or in providing vocational orientation services.
[7] G.U. n. 235, 9.10.2003, suppl. ordinario n. 159.
