lesson 1 condensed needs more

voluntary vs forced labour

voluntary work= frelly accepted by the worker

• the key element is consent free from vices

• even if influenec by economic necessity ie needing money to survive the decision to work is still considered legally voluntary provided there is no coercision

• rooted in the principle of freedom of work CE protecting an indduals ability to choose their occupation and engage in work freely

• the worker must retain a real choice

forced labour= imposed by another person and is not freely consented too

• worker has not freely agreed to wor

• worker cannot easily termonate the obligation

• may be elements of coercision threats or penalties for non compliance

• generally illegal and prohibited under international and eu law

  • the slavery convention

  • charter of fundamental rights

  • ILO conventions

• exceptions= certain forms of compulsory work are not classified as forced labour provide they are lawful propoertionate and in the public interest

  • emergency obligations ie natural disasters or wars

  • civic duties ie jury service and now abolished military service

voluntary= consent and ability to leave

forced= lack of real consent and inability to exit

paid vs free labour

paid= work in exchange for economic compensation typically in the form of wages or salary

• main motivation= earning income

• usually takes olace within a contractual relationship

• payement can be montary ie wages salary bonuses

• payement can be benfits in kind (accomodation, food) but must be linked to actual work done

free labour= work carried out with no economic compensation

• there is no wage or financial reward

• main motivations:

  • charity

  • friendship

  • neighbourly assistence

paid work= economic compensation with an income motive

free labour= no compensation with a social/person motivation

wirk for oneself vs work for another

work for oneself= worker recieives the results of their labour directly

• the results/output or profit generated become part of the workers own assets

• the worker bears the losses of the work

• typical of self employement

work for another= results belong to another person immediately ie the employer

• the worker contributes labour but the economic benefit and output are trasnferred to the employer

• includes:

  • results= product or service belongs to the employer

  • market relations= employer dictates client and market

  • tools= typically provided and controlled by emoloyer

  • risks= financial and business risks born to employer; employee paid regardless of business success

work for oneself= ownership of results and assumption of risk

work for another= trasnfer of results and employer bears risk

autonomous vs dependant work

autonomous= worker decides how work is performed

• no legal subordination

• the worker retains control over methods, timing and organisation of work

  • worker chooses how when and where to work

  • is not subject to order or jierarchal control

  • bears responsibility for how the work is completed

• typical of self employed work

dependnant suboridante work= employer directs and organises work

• typical of employement relationship

• subject to the employers authority

• includes

  • orders= employer gves instructions on tasks

  • supervision= workers performance is monitored

  • control of conditions= employer determines hour place and manner of work

  • sanctions= employer can disicpline worker ie dismissal

legal dependency does not equal economic dependancy

• the absence of legal control is what defines autonomy not whether the worker relies on the income ie trade worker who relies on one main client for income but controls how the work is done

• a worker may be economicaly dependnant but legally indpendnant

autonomous= indpendnance no employer control self employed

dependant= subordination employer control and employement

types of work

self employement= indidual operates indpendantly on their own behalf

• voluntary=freely entered into

• paid= involves economic compendation

• autonomous= worker decides how work is performed

• working on own behalf= retains the results and profits of their labour

• regulated by self employement statute rather than employement law

wage labour ie employment= work performed for another person ie employer under a relationship of subordination

• volunatary= entered into by agreement

• paid= fixed wage or salary

• dependency= subjust to employers direction and control

• working on anothers behalf= risks and results belong to the employer; employee paid regardless

• personal= work performed personally by worker with limited ability to subsitute

• regulated by workers statute

dividing line in elseness and subordination not whether the work is paid or volunatry

trade= economically dependant self employed worker

trade= a self employed person who is economically dpendant on a single client deriving 75% or more of their income from that one client

• no employees= operates indidually without hiring others

• no subcontracting= performs the work personally rather than delegating

• own infrastructure= uses own tools equipment and resources

• indpendnant organisation= retains control over how the work is strcutured and performed

• paid per results= remuneration is not fixed; it is linked to output ad completed tasks

• assumes economic risk= bears the risk of loss, inefficiency or lack of work

• governed by the leta= self employement framework not employement law ET

desipte economic dependance the trade worker remains legally indpendent as there is no relationship of subordination

concept of labour law

labour law regulates

• indidudual employement relationships

  • the relationship between employer and worker

  • contracts wages working time dismissal

• collective labour law

  • relationships between trade unions and employers organisations

  • collective bagaining, collecive agreements, industrial action eg strikes

• labour market functioning

  • broader polciies and insitutions affecting employement

    • employement polciies, job creation and unemployement measures, public bodies overseeing labour standards

sources of labour law

• state legislations=binding on all

• collective bargaining agreements between unions and employers= binding scope depends on representativeness

• contracts= only binding between parties

devlopment

• originated in civil contract law based on the idea of a contract between employer and worker

• however due to inequaity of bargaining power it evolved beyond pure contract

• is now an independant branch of law with its own principles protections and framework

enforcement mechanisms

• labour inspection= piblic authorities mointor complaince with labour standards ensuring employers follow obligations

• specialised labour courts= deal specifically with employement disputes and provide accessibe and expert adjucication

relfects a shift from formal contractual equality to substantive protection of workers recognising that employement relationshios are inherently unequal and require intervention and collective regulation

purpose of labour law

• protective/ compensatory= protect the weaker party in the employement relationship ie the employee

  • recognise imbalance of bargaining power between employer and worker

  • seeks to compensate for inequality through worker protections

  • ensures susbtantive fainress not just formal agreement

    • minimum wages, protection against unfair dismissal, limits on working times

• economic/employment objective= promote employement and productivity

  • provides a stable and predictable framework for businesses and workers

  • encourages efficient labour markets

  • balances worker protection with business flexibility

  • supports job creation and economic growth for a functioning economy

• social peace= encourages cooperation between employers and employees

  • provides mechanimd to prevent and resolve conflicts

  • maintains social stability and industrial harmony

    • collective bargaining , trade union representation, regulation of industrial action

these functions sometimes conflict ie strong worker protection may limit flexibility for employers and economic efficinecy may reduce protections

labour relations system

• the collective dimension is composed of organised groups representing both sides of the employement relationshio

• composed of:

  • workers representatives= trade unions represent employees interests

  • employees representatives= employers organisations represent business interests and coordinate employer repsonces

• uses collective bargaining to determine working condictions across sectors

  • involves negotiations between unions and employers organisations

  • covers wages, working hours, enployement conditions

  • agreements reached often apply beyond inddual contracts setting minimum standards across a sector

    • reduces ineuality and standardises conditions

colectiv bargaining relfects a shift from inddual negotiation often unequal to collective bargaining more balanced enhancing workers bargaining power while providing employers with predictability

employement identification

principle of reality over label= actual facts of the relationship prevail over the contractual label given by the parties

• employers may describe workers as self employed or indpendant but this is not decisive

  • missclassification does not change the legal reality

• courts will reclassify the relationshi if the factual situation relfects employement

  • the law looks at subtace over form

case by case analysis= there is no single defintitive test to determine an employement relationships exists

• the courts asses multiple inidicators collectively not in isolation

• courts adopt a holsitic case by case approach

• the decision depends on the overall balance of factors

• weigh up the essential elements of employement

  • personal services= worker must perform work personally with limited right to subsitute

  • voluntariness= freely entered into

  • remuneration= foxed remuneration in exchangefor work

  • elseness= work for the benfit of another

  • dependency= worker is subject to control and direction of the employer

• not all factors are equally important= elseness and dependancy are core

presumption of employement= where the key elements es[ecially elseness and depdnency are present this creates a presumption of an employement relationship

• the burden may shift to the employer to show otherwise

by priroitising factual subtance over contractual labels courts ensure workers are not deprived of legal protection through artificial arrangements

essential elements

personal nature= work must be performed personally by the worker

• worker must be a natural person not a legal person ie human being not a company

• no free right of subitution= occasional or limited may be allowed

• no employees/subcontractors under there control to complete the work

• the employer contracts for the idnuals labour not a replaceable output

volunatary= requires valid genuine consent from parties

• free from vices of consent, coercion and durress

• distinct from economic dependency= person may be economically pressured but still legally acting voluntarily

• freely entered into not imposed

remuneration= payement is essential

• includes all economic compensation not just salary ie wages benefits in kind and allowances/expenses

• must be regular and stable payement eg monthly salary

• not depdnant on business success or profit results

• paid for availability and work done not success

elseness= work done for another

• work perfors work for the benefit of another ie the employer

• results= employer owns the output of the work

• risks= employer bears the losses of the work (employee is paid regardless)

• tools= employer provides the means necessary for the work

• market= employer controls the clients and the prices and commercial strategy

dependency= worker is part of the employers organisation and lacks meaninful independance

• subject to insutrctions/orders from employer

• controlled thorugh supervision/monitoring and disicpilary power

• integrated into the organisation through fixed working hours or schedule, a defined workplace and requiremment to seek approval for leave

• expected to show regularityassiduity of work

• sometimes exclsuvity= working only for one employer

not all idnicators must be present simuatenously as courts apply a holsitic multi factor assesment

• however dependnecy and elseness give the greates weight

scope of labour law

what labour law regulates

• wage employement= worker performs work under consitions of dependancy in exchange for remuneration

• presumption of employement= where 5 indicators are present courts apply a subtance over form approach

  • contractual labels are not decisive

• special employement relationships= retain core features of employement but involve variations in control, working conditions and contractual structure

what labour law does not regulate (instead civil/commecial law or special public law regimes)

• self employement/ trade workers/indpednant contractors= lack of legal subordination even if economically dependant

• article 1.3 expressly excluded cases = element of wage work is missing

  • civil servants/public officials

  • family work= informal work within a family unit

  • commercial agents bearing risk= operate on their own account

  • company directors= act as organs of the company rather than employees

• general exclusions clauses 1.3 g

  • open list for catch all exclusions

special employement relationships

these are still employement relationship but present unsual featues that make the standard model of wage labour ie full subordination fixed hours strict control unsuitable

• they are not excluded from labour law

• the wroker is still economically dependant

• the worker is still integrated into the emokoyers organiation

• they are atypuca not non employement

• often governed by special statutes and or employement law suppletorily when rues are silent

• list is open ended= new cateogries can be recognised if they fit

these relationships are characterised by

• greater autonomy than standard employees

• stronger elements of trust or professional indpendance

• irregular or non standard working patterns

examples

senior management

• high level of autonomy and decision making power

• strong trust based relationship

• still act on behalf of the company

• still considered employees despite reduced subordination

domestic workers ie cleaners and nannies

• work performed in private households not business premises

• relationship based heavily on trust and personal reliance

• often involves informal personalised arrangements

commercial agents no risk bearing

• act on behalf of an employer

• do not bear financial or business risk

• not self employed in the strict sense though enjoy greater indpendance in operations

prisoners in work programs.

• work is linked to rehab and reintegration

• not purely economic employement

• combines correction and training objectives

minor under criminal or educational measures

• work is linked to education and rehabiliation

• not purely market based employement

artistists and creative workers

• work is often temporary and irregular and prject based

• strong dependence on contracts and short term arrangements

• ie performers and technical creative staff

professionl athletes

• employement tied to sporting performance

• short careers with high mobility ie trasnfers/contracts

• strong orgnsiational control by clubs

workers with disabilities

• aim is social integration and productivity

• may involve state supported employement schemes

• employed in special employement centres

medical residents

• combining work with training

• structured learning under supervision

• employement and professional qualification overlap

lawyers in law firms

• formally employees in many cases

• remain technical. autonomy nd professional indpendance

• bound by ethical duties and confidentiality obligations

• shaped by professionalregulation and labour law

expressly excluded cases

categories fall outside wage law because they lack one or more essential elements= presumed non employement but can be rebutted by facts

• mandatory personal services=

  • work legaly required rather than freely chosen so volunatriness is absent

  • obligations imposed by law not contract

  • jury duty and electoral duties

• friendship/benevolence work=

  • work performed without economic compensation does not constute employement

  • no remuneration= no wage employement

  • helping neighbours and charity work

• company directors

  • directors act as corporate decision makers

  • excercise orgnisational autonomy not subordination

  • no legal depednency or control

  • excludednas they act as governing organs of the company not employees= commercial law

• family work

  • presumed not to be employed

  • based on close personal relationships rather than economic exchange

  • must involve cohabitation living together and is limited to close relatives up to 2nd degree

  • rebuttable depending on evidence of remuneration and dependancy

• commercial agents with economic risk

  • agents operate on their own account

  • bear economic risk, paid based on results and lack subordination

  • miss key elemets of dependency and elseness

  • classified as self employed

• authorised transport operators ie coaches

  • use own vehicle and infrastructure

  • bear economic risk

  • control organsation of work ie own routes and schedules

  • typically self employed

  • absence of subordination and economic integration

• civil/public servants

  • governed by admin law not labour law

  • work is performed for the state not a private employer

  • public law based not contract

    • exception= somepublic sector workers ie cleaners in a public office fall under labour law if they perform ordinary employemen functions without public authority roles

• public health care personnel

  • governs by specific stat frameworks

  • employement relationship under public regulation

other non employement situation article 1.3 g

not am employement relationship

trainees and apprentices

• main purpose is training not production of labour/economic result

• relationship is educational and fromative

• payement or allowance does not create employement

• decisive factor is training objective not remuneration

• if the trainee is performing productive work under subordination it may be reclassified as employement

university internships

• educational and formative purpose

• can be part of a degree requirement or extra curricular

• if the internship involves real productive labour beenfitting the employer it may be reclassified

community service

• imposed as criminal sanction not voultary work

• unpaid and imposed by court

• no contractulal exchange

• punittive public law nature

cooperative members

• relationship is associative not hierarchal= all equal

• members work for the collective benefit of the cooperative

• not based on remuneration

• no work for another= the worker is a member or owner not an employee

• decisions are collective

sectors of labour law

idnidual labour law= regulates the relationship between indiv worker and employer

• focuses on the employement contract ie formation working conditions suspension termination

• protects the idnidual employement relationship and balances unequal bargaining power

collective= regulates group based labour relations

• stregthens workers bargaining power through collective representation

• includes trade unions and employer organisatiins

• covers collective brgaining collectivr agreements and industrial action ie strikes

employement policy law/labour market law= state polcies for employement and integration into work

• promotes access to employement and labour market efficiency

• covers job creation, training and skills, employement integration programs for unemployed/vulnerable

occupational health and safety law= working conditions related to health and safety

• ensures a safe and healthy working environment

• covers workplace accidents, occupational diseases and employer safety obligations

adminstrative labour law= state supervision and enforcement of labour standards

• ensures effective enforcement of labour law throughout the state

• covers labour inspection systems, sanctions for violations and minotring compliance with regulations

labour procedural law= dispute resolution in employement matters

• provdies accessibe and specialised justice for workers/employers

• covers labour tribunals and specialised courts, procedural rules for dispute and enforcement of labour rights

social security law= income and oscial protection system

• protects indivs against social and economic risks across life stages

• orginally limited but now largey universal and indpendant as a legal sector

• covers illness benfits, unemployement support and retirement oensions

modern labour law is multilayered and hybrid coming private law of contract public law of state regulation and enforcement and social protection systems of welfare and security