Documents Novitz, Tonia 44 results

"The treatment by the European Union (EU) of sustainable development, whether concerning economic, social or environmental protection (or some combination of the three) is normally viewed in the context of EU external relations. The aim of this article, however, is to consider the implications of the EU's internal commitment to sustainability, as required by Article 3(3) of the Treaty on European Union (TEU), addressing the extent to which this provision is capable of being realized in the social context of labour relations. It is argued that sustainable development is an inherently dynamic process requiring broad-based participatory processes, including collective bargaining by trade unions. However, to fulfil this participatory function, trade unions must be allowed to address and bargain over social policy for the future. Unfortunately, what emerges is the lack of positive support in EU and European Convention on Human Rights (ECHR) case law for workers' collective voice which looks forward in the way that sustainable development necessitates. This is evident from judicial determinations on the scope of entitlements to participation in information and consultation mechanisms and collective bargaining. It is also apparent from case law concerning the extent of legitimate aims for collective action and the enforceability of dynamic clauses in collective agreements. Further, the outlook for a future policy shift in the EU does not look promising. More needs to be done at European level to promote workers' collective participation in building sustainable solutions for the future. "

"This article examines disputes regarding the connection between freedom of association and the right to strike, occurring at multiple levels, within international, regional and national legal orders. It focuses on the period from 2007 to 2019, when a challenge was made to norms longestablished at the International Labour Organization (ILO) that was subsequently continued in European and national court proceedings. These events raised the potential for normative fragmentation and conflict between legal systems. This article interrogates the roles played by two key actors in these processes: the International Organization of Employers (IOE) and the International Trade Union Confederation (ITUC). Drawing on sociological insights into collective action offered by Offe and Wiesenthal, transposed to the transnational level, an analysis is offered of the power dynamics that motivated IOE attempts to alter the content and influence of ILO norms, alongside the scope for ITUC resistance, given its resources"

"Covid-19 prompts us to consider how we assess and respond to health risks at work. In Sweden all serious risks are to be averted, while in England, they are to be avoided if reasonably practicable. Risk assessment serves a preventative function but also offers a defence to an employer. We consider coverage, relevant risk factors and the role of public enforcement bodies and other actors.

Le Covid-19 nous incite à réfléchir à la manière dont nous évaluons et répondons aux risques en matière de santé au travail. En Suède, tous les risques graves doivent être évités, tandis qu'en Angleterre, ils doivent l'être « autant qu'il est raisonnablement praticable ». L'évaluation des risques a une fonction préventive, mais elle constitue également un rempart pour protéger l'employeur contre la mise en cause de sa responsabilité. Nous tiendrons compte dans cette analyse du niveau de protection et des facteurs de risque pertinents, ainsi que du rôle joué par les différents acteurs et organismes publics chargés de faire appliquer la loi."

"In this article, we investigate legislative controls on the ability of workers and their organizations to take strike action, which raise fundamental questions relating to the application of democratic principles in a workplace setting. We trace the introduction of legislative provisions in Australia and the UK which sought to impose 'majoritarian' forms of democracy on trade union structures, by requiring ballots before such action could be taken. We recognize that these statutory pre-conditions are problematic both in terms of their aims and effects. Yet, what is arguably more worrying is the new institutionalization of deliberative pre-conditions for industrial action in the workplace. In Australia, this has taken the form of a requirement that a ballot applicant has 'genuinely tried to reach agreement', a requirement that continues to apply during any actual industrial action. In the UK context, the scope of protection from unfair dismissal (beyond a twelve-week period) will be affected by whether the union has complied with procedures established by an applicable collective or other agreement, offered or agreed to commence or resume negotiations, and has not unreasonably refused a request that conciliation or mediation services be used. In both countries, there seems to be growing pressure in policy terms for strikes to be very much a last resort, as statutory support for bargaining in good faith becomes stronger. We argue that these deliberative democratic controls of strike action are misguided. A richer understanding of deliberative democracy should, in our view, offer greater space for workers to voice their opposition in negotiations with employers."

"The availability of remedies for unlawful collective action is determined, under international law, by the impact which they have upon the ability of workers to organize collectively to defend their economic and social interests. In this way, the idea of a 'right to strike' operates as the basis for assessment of the legitimacy of remedies. This approach has been taken by the International Labour Organisation (ILO) supervisory bodies and transmitted to the bodies responsible for supervision of Council of Europe human rights instruments. Such an approach has, perhaps unsurprisingly, led to criticism of the potentially far-reaching remedies available to employers following the Court of Justice judgments in the Viking and Laval cases, which extended European Union (EU) free movement principles in ways that allow employers to prevent or penalize what would otherwise be regarded domestically as permissible industrial action and which compromise the right to strike. Two key examples are punitive financial sanctions which can be applied in Sweden and the scope in the UK for injunctive relief and unlimited compensation for employers. The difficulty is that ILO recognition of a right to strike is under threat by the employers' group, which is now objecting to the continuation of ILO jurisprudence which interprets ILO Convention No. 87 so as to link freedom of association and the right to strike. In this manner, the International Organisation of Employers (IOE) seeks to challenge the application of past ILO findings in European and domestic contexts. There would seem to be both a legal and a political battle to be fought in the ILO to defend its normative pedigree. If support for collective action is to be maintained, it may not be sufficient to look only at the past, but towards present challenges and manifold options for the future."

"Recent cases decided by the European Court of Justice have raised crucial issues regarding the scope for collective action in Europe. In this context, this collection of essays investigates treatment of the right to strike in seven Member States of the European Union: Belgium, France, Germany, Italy, Spain, the Netherlands and the United Kingdom. Each national report examines how legal regulation seeks to address conflicting interests, namely those of employers, workers and the public at large. Each report also outlines the potential impact of EU jurisprudence in that country.
Striking the balance between domestic entitlements to take industrial action and the protection of EU fundamental freedoms is far from straightforward. The problem of balance is considered further in three supplementary essays. The first of these assesses the position of those engaged in or affected by collective action under conflict of law principles stated in Rome II. The second essay provides a comparative analysis of the constitutional status (or otherwise) of collective action. The volume ends with an essay which subjects to scrutiny the assumptions made by the European Court of Justice in the Viking and Laval judgments, which would seem to be questionable, in light of the national reports presented in this book."