Section 4 - Employment Rights

Question 1

two points of view in labour market

Answer 1

1. competitiveness is best achieved through deregulation of the labour market, leaving business free to discover the most efficient solutions to production problems
2. achievement of competitiveness requires government intervention to provide public goods, such as an educated and skilled workforce

Question 2

main objective of regulation in EU

Answer 2

prevent social dumping

Question 3

what is social dumping

Answer 3

practice whereby workers are given pay and / or working and living conditions which are SUB-STANDARD compared to those specified by law or collective agreements in the relevant labor market, or otherwise prevalent there

Question 4

why collective agreements

Answer 4

you as a single person don’t have enough power to compete with the company and negotiate terms and conditions. Collective unions allow that the bear of power is more equally distributed. Employment contracts rise for a freedom of negotiation.

Question 5

two sides of empl. regulation

Answer 5

1. individual rights: international, state, individual EC
2. Collective regulation: international, national, sectoral, workplace

Question 6

EU level: main protections

Answer 6

• Maximum working hours (but not minimum wage), right to sick pay and maternity leave, minimum paid holiday entitlement;
• Health and Safety rights and duties
• Anti-discrimination laws

Question 7

main legislations in EU

Answer 7

TFEU: TREATY OF THE FUNCTIONING OF THE EU (2009)

GPUE: GENERAL PRINCIPLES OF EU

Question 8

Relevant articles from TFEU: 151-161

Answer 8

social/employment policy (“the social chapter” – including especially Article 157 on principle of equal pay between men and women);

Question 9

Relevant articles from TFEU: Article 10

Answer 9

combating discrimination on grounds of sex, race, religion or belief; disability, age or sexual orientation

Question 10

Relevant articles from TFEU: Articles 45-48

Answer 10

free movement across eu of workers

Question 11

GPEU: which convention draw the fundamental rights?

Answer 11

European Convention on Human Rights and Fundamental Freedoms (ECHR)

Question 12

ARTICLE 4 (ECHR)

Answer 12

prohibition of forced labor

Question 13

article 11 ECHR

Answer 13

union freedom

Question 14

which rights are complementary to the articles 45-48 on free movement of workers?

Answer 14

• right of movement and right to reside of workers
• right of entry and residence of workers’ families
• non discrimination
• equal treatment
• exercise of professional activity (except public authority)

Question 15

Preliminary function of the court of justice for the European Union

Answer 15

INTERPRETATION: in case of doubts from the national court

Question 16

second role of the court of justice for the European Union

Answer 16

sanctionary: citizens can recall the European court of justice if they think that the national law did not provide them a proper regulation according to EU rules.

Question 17

forms of collective regulations

Answer 17

• voluntarist approach (UK and italy)
• co-determination (germany)
• coordinated models (France)

Question 18

collective bargaining

Answer 18

process and method that reach an agreement legally enforceable. A method of determining terms of employment and regulating the employment relationship, which utilizes the process of NEGOTIATION between representatives of management and employees and results in an agreement which may be applied uniformly across a group of employees’

Question 19

does EU have an extensive regulation at the collective level?

Answer 19

The EU has extensive regulation at the individual level, but at the level of collective agreements and bargaining is not quite regulated

Question 20

information and consultation: difference from collective bargaining?

Answer 20

yes
information and consultation is the right TO BE INFORMED AND CONSULTED in specific matters, is a procedural act that does not guarantee legal enforcement or negotiation.

Question 21

agency work (tripartite relationship)

Answer 21

an agency hires workers to work for other businesses, offering workforce for business (intermediate between workers and the companies)

Question 22

subcontracting

Answer 22

a company subcontract part of the activity to another company (ex. of cleaners)

Question 23

employment contract: expressed or implied?

Answer 23

it doesn’t matter if the contract is expressed or implied: there is a presumption of employment relation to protect the weaker part. the burden of prove is reversed, so the weaker part needs to prove that the relation does not exist)

Question 24

employment contract: written

Answer 24

When the written contract is in place, what matters is the reality of the relationship. It doesn’t matter how you qualify the relationship, the judge has the faculty to change it.

Question 25

definition of employment contract

Answer 25

A “contract of employment” is defined as: “a contract of SERVICE or APPRENTICESHIP,
whether EXPRESSED or IMPLIED,
and (if it is express) whether ORAL or in WRITING”.

Question 26

ec: freedom to contract?

Answer 26

no, certain terms are required or prohibited by statute law, and for the employees there are implied duties of loyalty and confidentiality.

Question 27

which types of contracts are mandatory to be written for their validity?

Answer 27

agency work
short term contracts

Question 28

who is an employee?

Answer 28

individual who performs a service under the COORDINATION of an employer,
under a certain expressed or implied CONTRACT,
is part and parcel of the organization
has its own account
the employer and the employee have a irreducible minimum of obligation

Question 29

U.K. Hybrid category: worker

Answer 29

individual who has entered into or works under a contract of employment; or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

Question 30

main difference employee and worker

Answer 30

worker has less protection than an employee and has a much broader concept (includes for example PARASUBORDINATE)

is engaged in effective and genuine activities, economically, functionally and/or operationally dependent from a client/principal, receiving in exchange some kind of remuneration.

Question 31

Written statement directive (1991/533 EEC)

Answer 31

employer’s obligation to inform employees of the conditions applicable to the employment relationship. It outlines a compulsory list of the minimum information every employer must provide to their employees (name of employer, date of employment beginning, job title and description, terms and condition, remuneration etc)

Question 32

employee duties

Answer 32

1. CO-OPERATE with the employer, including obeying lawful instructions and not impeding the employer’s business.
2. Duty of FIDELITY: However, it should be noted that the employee’s duties of good faith, loyalty and trust and confidence should not be equated automatically with fiduciary obligations
3. Implied duty not to compete and do not disclose confidential information.
4. take reasonable care for their own safety and that of fellow employees;

Question 33

“Female salesperson” searching is discriminatory?

Answer 33

is discriminatory, gender stereotype

Question 34

3 elements of direct discrimination

Answer 34

1. comparator (real or hypothetical)
2. same situation or not materially different
3. because of a protected characterstic

Question 35

equal pay (article 157 TFEU)

Answer 35

• FOR EQUAL WORK
• WORK OF EQUAL VALUE