20092 research outputs found
Sort by
The Non-Waivability Principle: Possible Derogations From Collective Bargaining And Re-Assessment Of Individual Bargaining In Assisted Procedures
No full textThis article examines the evolving landscape of Italian labour law, with a focus on the principle of non-waivability and its gradual adaptation to demands for flexibility and competitiveness. Traditionally, the Italian labour law framework has been characterised by a strong non-waivability regime, which protects employees from negotiating away their rights due to inherent power imbalances vis-à-vis employers. However, recent regulatory developments have facilitated a shift towards both collective and individual agreements that allow deviations from statutory provisions, including to the detriment of employees. The article analyses the implications of this trend, exploring key regulatory models that enhance the role of assisted individual negotiations and collective bargaining in employment contracts. It delves into the conditions necessary for lawful waivers of rights, emphasising the importance of impartial third-party assistance in “protected venues” to ensure employee agency in negotiations. Additionally, the article discusses the risks and opportunities associated with the retreat from non-waivability, considering how this shift may fragment employees’ legal protection. Ultimately, the article advocates for a balanced approach that fosters individual empowerment within employment relationships, while also underscoring the critical role of collective protections, thereby encouraging ongoing dialogue among stakeholders to adapt to the complexities of the modern workforce
Relaxation Of Mandatory Rules Through Collective And Individual Agreements In Japanese Labour Law
No full textThis article analyses the legal situation in Japan regarding the relaxation of or deviation from mandatory regulations in labour law through collective and individual agreements. Although many statutory labour laws in Japan have a mandatory effect over individual employment contracts, several statutory provisions provide that such mandatory regulations can be relaxed through collective agreements under certain circumstances, as is the case in other industrialised countries. However, Japan’s situation is unique insofar as the relaxation is permissible through collective agreements concluded by non-union (individual) representatives of a majority of employees in the absence of union representatives who have been elected by a majority of employees. Due to the lack of safeguards that ensure the independence of non-union representatives as well as the lack of democratic selection, legislative improvements are needed to the current labour regime. Potential revisions are currently under discussion by a government council. Moreover, Japan’s Supreme Court has held that mandatory regulations can sometimes be relaxed through individual employees’ consent if “strict scrutiny” shows that the agreements are the product of employees’ “free will.” Although such strict scrutiny can be useful in deciding issues within contract law, the relaxation of mandatory labour standards through individual agreements is problematic in itself given the power imbalance between individual employees and employers, and its scope should be very narrowly confined
The Cost Of Admission: Consent, Non-Waivability, And The Governance Of Migrant Labour
No full textThis article examines how the principle of non-waivability in labour law is being systematically eroded for migrant workers. It argues that a fundamental tension exists between labour law — which seeks to protect and empower workers — and migration law — which prioritises the welfare of citizens, instrumentalises migrant labour, and seeks to limit redistribution of a nation’s resources, benefits, and opportunities to non-citizens. The article demonstrates how consent-based arguments, rooted in migration law, are used to justify the exclusion of non-citizens from otherwise non-waivable labour protections. By analysing legislative, judicial, and policy decisions, it reveals how these arguments contribute to a stratified labour market and the erosion of migrant workers’ rights. Using Israel as a case study, the article first outlines the traditional understanding of the legal mechanisms that temper non-waivability — legislated derogations, court settlements, and good faith — before turning to its core argument: consent-based reasoning, imported from migration law and governance, adds a further layer of erosion of non-waivable rights. The article illustrates how migration law’s logic infiltrates labour law, transforming non-waivable protections into conditional entitlements and reshaping the normative foundations of labour rights
The Intertemporal Law Doctrine’s Application to the Acquisition of Colonies in the Americas
No full textThe intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and apply the international law extant at the time sovereignty was claimed. As international law has evolved from the time European overseas colonial expansion began in the fifteenth century, this means that different standards can apply in diverse colonial contexts, depending on when sovereignty is alleged to have been acquired
The International Covenant On Economic, Social And Cultural Rights And The Employment Relation By Klaus Lörcher, Niklas Bruun, Ana Teresa Ribeiro, Hart Publishing, 2025
No full textAFTER HAVING PUBLISHED THREE ENLIGHTENING BOOKS on the European Convention on Human Rights (ECHR), on the European Social Charter (ESC), and on the Charter of Fundamental Rights of the European Union (CFREU), the authors of the Transnational Trade Union Rights Expert Network of the European Trade Union Institute have now transcended the European territory and presented a publication on a global scale
Non-Waivability In Labour Law: An Australian Perspective
No full textAustralian industrial relations laws traditionally provided detailed mandatory standards through a system of arbitrated occupation-based awards. In the years since a shift to enterprise bargaining, the system has tolerated a greater level of flexibility, even in the way that legislated minima are framed. The options for waiving otherwise mandatory standards are, however, limited by procedural protections. The Fair Work Commission maintains a supervisory role to ensure that workers are “better off overall” as a consequence of their bargains. This article explains the many ways in which Australian labour standards permit flexible application, within constraints designed to preclude exploitative practices
Waiver Of Statutory Employment Rights In The United Kingdom
No full textThe common law endorses the principle of freedom of contract, but, with few exceptions, Parliament has explicitly prevented straightforward waivers of statutory employment rights. Nevertheless, for the sake of promoting settlements of claims by employees, it is surprisingly easy for individual employees to enter into agreements to compromise claims for breach of those rights without appropriate safeguards such as independent advice and freedom from pressure. Moreover, employers’ lawyers have demonstrated considerable ingenuity in finding ways to avoid the application of employment rights either by manipulations of employment status or by seeking contractual agreements on the facts of the case that will effectively prevent a claim from being brought. Although the courts are alert to these devices and subterfuges, vigilance is always required. Trade unions in the United Kingdom have not sought the power to negotiate collective agreements that vary or derogate from rights. The government created the possibility that employers could enter into agreements with non-union representatives of the workforce to derogate from working time rights, but there is no evidence that employers have ever used this device. To the extent that statutory employment rights express or embody an aspect of protected human rights or fundamental rights, indirect waivers will be tested for the proportionality of their interference with the right and rejected altogether if they deny the core of the right
Derogability From Swedish Statutory Labour Law
No full textThe possibility for the social partners to derogate from statutory legislation in the area of labour and employment law is an important characteristic of the so-called “Swedish model” for industrial relations and labour market regulation. With a system built on collective bargaining and collective agreements, and where legislation in the labour law area was rather scarce until the 1970s, freedom for the social partners is a core element. The possibility to derogate from certain parts of statutory labour law by collective agreements also gives room to adapt rules for different kinds of businesses and trades. Sweden is a member of the European Union, and EU directives have, to a certain extent, circumscribed the possibilities to derogate when the issue is regulated by a directive. An example is the Swedish Working Time Act, which traditionally can be derogated in its totality in collective agreements, but the social partners nowadays must respect the rules in the EU Directive 2003/88/EC on Working Time when they regulate working time in collective agreements