Nicola Countouris

The Subjects of Labor Law: 'Employees' and Other Workers

Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. In the current contribution we consider them from a comparative perspective. Our aim is to highlight similarities and differences between different legal systems. This cross-national analysis can in turn assist the national analyses. Understanding how others have been approaching the same problem can help us better understand our own legal system, including in terms of its historical development and in identifying shortcoming, inconsistencies and hidden assumptions. Understanding to what extent the problem and solutions are universal can also assist us in identifying the normative foundations behind the law.We start with a brief overview of the tests used in different countries to decide if one is an employee (and covered by labor law), showing some points of diversity but for the most part significant similarities, with a trend towards greater convergence. We then turn to examine some relatively recent developments in different legal systems through three prisms. First we discuss the response in different countries to employers’ evasion attempts. We show how in some systems courts and legislatures remain inactive in the face of evasion, and the stagnation of the law leaves room to massive misclassification of employees as independent contractors. In other countries, on the other hand, creative solutions have been used to contain or minimize this problem. Next we consider the dialogue between the judiciary and the legislature in determining who is an employee. We show how in some countries, judicial approaches to the problem have triggered a legislative response, while in others the legislature remains silent, possibly to signal approval or simply out of disinterest. Finally, we examine the breaking of the binary divide between employees and independent contractors. We show that a third (intermediate) category has been added in an increasing number of countries, as a response to similar problems in classifying workers who share only some of the characteristics of employees. In the conclusion we return to reflect on the issues of diversity vs. convergence, in light of the developments discussed in the previous parts.

Labour regulation and the economic crisis in Europe: challenges, responses and prospects: Policy, Practice and Institutions

The 2008 financial crisis marked the beginning of a prolonged and ongoing period of extreme economic turbulence that has created multiple challenges for both governments and national systems of labour administration. Difficult economic conditions are encouraging a reevaluation of established policies and institutions in the areas of labour, employment, social protection and industrial relations. This book analyses recent reforms in labour administration and national labour policies, charting their development and discussing the challenges and opportunities faced by governments, ministries of labour, labour inspectors, employer organisations and trade unions.

‘Protection or Protectionism?’: A Legal Deconstruction of the Emerging False Dilemma in European Integration

This article engages critically with an emergent rhetoric suggesting that Member States and trade unions seeking to apply their domestic social standards to foreign service providers, in the context of what EU lawyers refer to as ‘Free movement of Services’, engage in practices amounting to economic protectionism. To countervail this rhetoric, the paper revisits some of the regulatory principles and rationales underpinning the law on ‘Free Movement of Workers’ and draws a number of parallels between them and the principles that regulate, or ought to regulate, other freedoms that de facto involve the free circulation of working persons in Europe, albeit under the guise of ‘Free movement of Services’ or ‘Freedom of Establishment’. It asserts that all market freedoms affecting the free movement rights of working persons in Europe, ought to be regulated by reference to what the paper describes as the ‘Equal treatment Principle’, and should distance themselves from any ‘Country of Origin’ rationale.

Injunctions, Cyanamid, and the Corrosion of the Right to Strike in the UK

This paper critically reviews a number of recent English court decisions on the award of interim injunctions against strikes, granted on the grounds of breach of various procedural requirements contained in Part V of the Trade Union and Labour Relations (Consolidation) Act 1992. It is argued that the jurisprudential approach followed by English courts is at odds with the emerging human rights nature of the right to strike, as developed by the European Court of Human Rights (ECtHR). The paper calls domestic judges to abandon the traditional, American Cyanamid-based, test typically used in awarding interlocutory injunctions in industrial action cases, in favour of a more human rights-attuned ‘proportionality test’.