Wednesday, December 15, 2010

Enduring Relevance of Labour Law Research in Current Financial Crisis



The book by Dr. Countouris represents a significant addition to the already expansive bibliography in the field of employment law. The analysis offers a deep and original analysis of the area of evolution of current European employment law. The author has managed to synchronize his work with important developments at the legislative level, namely the new ILO Recommendation on the Employment Relationship and the new EU Green Paper on labour law. At the epicenter of the monograph is the search for offering a clear demarcation of the scope of labour law and in that process the emphasis is placed on the assessment of the degree of protection offered to the subjects of labour law regulation. In this era it is apparent that the financial crisis has a powerful impact on the nature of the employment relations, with the clear danger of relegating employment rights to the sideline in order to ensure the protection of the financial viability of the employers. In this light, the research by the author reveals the full scope of the labour rights and obligations and provides a yardstick for assessing recent proposals and attempts to circumvent fundamental labour rights.
In terms of approach, the author focuses on the recent history of evolution of labour law and operates on the working premise stating that there is a scaling crisis in the regulatory framework of employment law. The route of the problem is rightly identified in the efforts to maintain the binary model of the employment relationship based on the subordinate employment/autonomous self-employment dichotomy. As a corollary, the author then explores and identifies the existence of novel nonconforming and hybrid working arrangements that have surfaced contra to the logic that sees employment relationships as able to be categorised either as subordinate employment or as self-employment variations. The identification of novel employment relationships has the advantage of challenging the traditional perceptions that are centred on the autonomy and subordination formula.
On another level, the emergence of new types of employment relationships has had the effect of influencing in a negative way national labour law systems. More importantly, the new developments in the typology of employment relationships have created a legal gap where national perceptions and the subsequent regulation of employment relationships previously founded on the prevailing notion of dependent and subordinate employment, are now excluding from their scope the new forms of atypical labour relations. Nicola Countouris makes the recognition and understanding of the existence of that legal gap the starting point for advancing ideas for a new evolving symmetry in employment law to accommodate this evolution. In that quest, the author deploys a comparative methodology thus examining the new developments in four key European countries – the United Kingdom, Germany, France and Italy. In that respect, his work has a dual positive effect: emphasis on the modern evolution of the employment relationships and the comparative exegesis of the national approaches to the phenomenon that can provide a paradigm for other regulatory systems, whether national or supranational.
In terms of structure, the monograph balances between theoretical analysis and practical implementation of the therein expressed ideas. In the first chapters, the book examines the employment relationship and the contract of employment in industrialised societies, thus highlighting the significant influencing role of the dichotomy that sees as employment relationships as corresponding to the autonomy and subordination formula. The next step in the analysis is the re-shaping of the personal scope of labour law, where the atypical relationships are introduced as a concept on the basis of the current academic debate on the matter, thus providing a solid theoretical foundation that supports the author’s findings. The author then dedicates a chapter to the characteristics of the atypical employment relationships where the analytical focus is placed on fixed-term, part-time and temporary agency work in Europe. At this stage the monograph makes useful use of the ILO notion of the worker and introduces the ILO parameter to the analysis of the scope of the employment relationship. This is an extremely useful approach since there is the necessary connection with ILO that is in theory the source of inspiration for the evolution of labour law. However, that part of the analysis is self-limited by the next chapter where the personal scope of application of EC social legislation is introduced, thus highlighting the relativity of the ILO regulatory system and the pragmatic significance of the national and supranational (EU) regulatory frameworks. The analysis of the EC regulation of atypical forms of work on the basis of the tension between employment law and employment policy represents the most important part of the argumentation, since there is thorough analysis of new legislative initiatives in the area and a useful description and critique of those developments.
In terms of room for improvement, the monograph could benefit from a deeper assessment of the results of the interplay between different regulatory systems, in order to provide an output description of the convergence and divergence that can be found in all participating systems.
In conclusion, the monograph represents an interesting and timely assessment of the contemporary developments in the field of employment law, with an analytical approach that has a strong comparative element. Moreover, the economic crisis has the effect of magnifying the arguments that the author makes, thus rendering the monograph an important source for attaining a better understanding of the dynamic nature of the employment relationships and of the complex interplay between the ILO, the EU, national systems and the “needs of the market”.
 For more information, please link to http://www.ejcl.org/141/review141-1.html


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