Industrial Law Journal - recent issues

Obituary

O'Higgins, P. — 2008-05-28

One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ

Davies, A. C. L. — 2008-05-28

This article analyses the judgements of the European Court of Justice (ECJ) in Case C-438/05 International Transport Workers’ Federation and Finnish Seamen's Union v Viking Line (Judgement 11 December 2007) and Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet (Judgement 18 December 2007). In these cases, the ECJ held that where industrial action infringes an employer's free movement rights under Article 43 EC (freedom of establishment) and Article 49 EC (freedom to provide services), respectively, these Treaty provisions can have horizontal direct effect against the unions organizing the action. Unions may defend themselves against these claims by asserting a right to strike (which the Court recognized as a fundamental right within Community law) but only where they are acting proportionately in the exercise of that right. The article explores the key elements of the ECJ's decisions on direct effect, fundamental rights and proportionality, and draws out some of the implications of these cases for English law.

Privatization of Wrongful Dismissal Protection in Comparative Perspective

Finkin, M. W. — 2008-05-28

The US Supreme Court has allowed employers to sweep employee claims of violation of most labour protective law into arbitration systems that employers unilaterally establish. The law would not allow employers in the UK, France or Germany to do so. This essay explores how and why that is so in each of these countries. It explains the US exceptionalism by reference to public choice theory, ie, by resort to the economics of judicial shirking.

The 'Right' to Object to Transfer of Employment under TUPE

Mcmullen, J. — 2008-05-28

Protecting Agency Workers: Implied Contract or Legislation?

Brown, E. — 2008-05-28

Towards a Flexible Labour Market: Labour Legislation and Regulation since the 1990s

Brown, W. — 2008-05-28

EU Intervention in Domestic Labour Law

Kenner, J. — 2008-05-28

The New UK Retirement Regime, Employment Law and Pensions

Kilpatrick, C. — 2008-02-29

The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Health Services and Support case in Canada and Beyond

Fudge, J. — 2008-02-29

In June 2007, the Supreme Court of Canada expressly overruled 20 years of jurisprudence that interpreted the freedom of association as excluding collective bargaining. This about-face by the Supreme Court was unexpected. What gave rise to this remarkable decision and what does it portend for the role of the courts in labour relations in Canada and beyond? The recent successes before courts have led some observers to suggest that it may now be a propitious time for a coordinated and proactive litigation strategy to vindicate labour's collective rights. This article offers some preliminary answers to these broader questions and issues by focussing on the Supreme Court's decision in the Health Services and Support case.

Towards a Comparative Theory of the Contractual Construction of Personal Work Relations in Europe

Freedland, M., Kountouris, N. — 2008-02-29

This article seeks to build upon the earlier article ‘From the Contract of Employment to the Personal Work Nexus’ (2006) 35 ILJ 1, and further to substantiate the theoretical basis for our work on the European comparative law of personal work contracts. Two associated but distinct hypotheses are presented; the first one concerns ‘institutions’ and explores the ways in which the contract of employment has become and been a central institution of European labour or employment law systems, but an institution differently constructed and displaying normative diversity as between those different systems. The second hypothesis postulates a contrast in juridical methodology as between English common-law-based systems and continental European civil-law-based systems, the former being characterised by a ‘regulated self-designed contracts’ approach, and the latter by a ‘standardised contract typology’ approach. In conclusion, these two hypotheses are integrated into a composite tentative comparative theory, which, we argue, can usefully be related to the theoretical discourse about the ‘varieties of capitalism’ in Europe.

The Accession (Immigration and Worker Authorisation) Regulations 2006

Ryan, B. — 2008-02-29

The 'Minimalist' Approach to Minimum Standards of Procedural Fairness

Sanders, A. — 2008-02-29

Liability for Safety Offences: Is the Law Still Fatally Flawed?

Barrett, B. — 2008-02-29

Beyond Equal Pay?

Steele, I. — 2008-02-29

INDEX TO VOLUME 36

2007-11-30

Labour Law 2008: 40 Years On

Wedderburn, L. — 2007-11-30

What has happened to British Labour Law over the past 40 years? It has become a larger more juridified subject. But its development requires an understanding of the New Capitalism that has emerged, with capital more mobile and powerful in globalisation. Three aspects are chosen for comment: First the meaning of the recent review by the Law Lords of economic torts. Second, the arguments about the contract of employment in Britain and Italy, in the context of the regulation debate, forthcoming legislation and the search for acceptable standards of social justice. Thirdly, the scene is set in European law for a new chapter in the tension between employers' economic freedoms in the internal market and social rights, including the right to strike.

The Implications of the ASLEF Case

Ewing, K. — 2007-11-30

The decision of the European Court of Human Rights in ASLEF v United Kingdom (27 February 2007) will require the government to re-visit the law relating to the right of trade unions to exclude and expel individuals because of their membership of political organisations perceived by trade unions to be hostile to their interests. It is now clear—as was pointed out at the time—that the changes made by the Employment Relations Act 2004 do not go far enough to meet obligations under the European Convention on Human Rights (ECHR). However, the case also raises much wider questions about the compatibility of other statutory restraints on trade union autonomy with Article 11 of the ECHR, notably ss 64–67 (on unjustifiable discipline) and 174–177 (on exclusion and expulsion as a whole, and not only the measures relating to membership of hostile political parties). This article considers both the immediate and the wider implications of the ASLEF decision for British trade union law, in the context of what appears to be a greater willingness of the Strasbourg Court to listen more carefully to trade union grievances than in the past. The article also draws attention to the role of litigation as a trade union strategy to recover lost rights, and again emphasises the importance of International Labour Organisation Convention 87 and the Council of Europe's Social Charter of 1961 (as well as the jurisprudence thereunder) as important sources in the construction of the ECHR, Article 11.

Constitutional and Conceptual Complexities in UK Implementation of the EU Harassment Provisions

Barmes, L. — 2007-11-30

This essay evaluates implementation in the UK in recent years of EU provisions on discriminatory harassment. From a technical point of view, aspects of the new law are vulnerable to judicial review challenges of various kinds. The correct interpretation of important elements is also unclear. From a principled perspective, these doctrinal complexities are liable to obscure the most important underlying issues.

Economic Tort Liability in Labour Disputes: The Potential Impact of the House of Lords' Decision in OBG Ltd v Allan

Simpson, B. — 2007-11-30

The Ongoing Saga of TUPE and Contractual Variations: Power v Regent Security Services Limited * [2007] IRLR 226, EAT

Wynn-Evans, C. — 2007-11-30

What Place for Hindsight in Deciding Whether a Claimant Was Disabled?: Spence v Intype Libra Ltd * UKEAT/0617/06, 27 April 2007 * McDougall v Richmond Adult Community College * [2007] IRLR 771

Reynold QC, F., Palmer, A. — 2007-11-30

Globalisation and Labour Rights. The Conflict between Core Labour Rights and International Economic Law

Hepple, B. — 2007-11-30

The Right to Strike: From the Trade Disputes Act 1906 to a Trade Union Freedom Bill 2006

Novitz, T. — 2007-11-30

Property in Work: The Employment Relationship in the Anglo-American Firm

Villiers, C. — 2007-11-30