Analysis of UK employment and labour law is often characterised by a curious dissonance. The
overarching narrative mandates that labour law is a countervailing force to the inequality of
bargaining ...power, embedded with values and assumptions concerning the nature of employment
relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect,
and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements
as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap,
by offering a legal realist account of the legal doctrine that governs the employment of agency
workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal
tests from one (commercial) context to another (employment) context; questions the courts’
protestations that their use is mandated by precedent; and outlines the real implications for the
status and rights of agency workers in the UK.
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"Autonomous" workers include most gig-platform drivers, like those working globally for 'Uber' and 'Lyft', who are usually classified as independent contractors and are ineligible for labor ...protections and benefits. The "new economy" and its business model, with its fissurization and increased use of contingent and outsourced workers hired as independent contractors, provide employers flexibility and lower costs by shifting labor costs to the workers. Many of these workers operate more as employees rather than genuine independent contractors or self-employed entrepreneurs, causing lost employee labor benefits and costing the government billions of lost tax dollars. Legal attempts continue to classify these workers as employees by means of adjudication or legislation interpreting the legal test of "control" to have them fit into the traditional employment relationship. California recently passed a law using a three-prong test to allow drivers who are dependent on a primary hiring company to be presumed as employees with full rights and benefits. Still, there are many drivers who will be independent contractors. However, the City of Seattle is trying an approach different from expanding the "employee" definition and has embraced the market practice of the employers' use of independent contractors, and has legislatively provided the drivers, as independent contractors, with a voice through collective bargaining, wherein they could gain labor rights and benefits. Issues of federal preemption and antitrust limitations are discussed, and future legislation at the state or local level looks possible. The choice provided employers is that labor rights are provided to their workers as employees or as independent contractors. This article proposes a model of granting labor rights to the ride hailing drivers by legislation at the state or local government level that stays under the legal radar of federal preemption and meets the requirements of the antitrust law. Comparisons will be made with global trends and experiences in the EU and in China to place the proposed Seattle model in greater context. Selected states in the EU show their bottom line in legal developments is to maintain the employer-employee dichotomy, sometimes using the "dependent employee" doctrine; whereas, China does not recognize "independent contractors," but allows business contracts for services that can provide some advantages.
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This article analyses the horizontal effect of the Charter of Fundamental Rights of the European Union. Horizontal effect has been an integral part of the Union's application of fundamental rights, ...especially in the field of equality. However, the codification of fundamental rights in the Charter raises important questions as to how horizontal effect will continue to apply in the EU, particularly in the aftermath of the Court's reticent rulings in cases such as Dominguez and Association de Mediation Sociale. This article argues that the emphasis on prior approaches to horizontal effect in recent rulings fails to address the profound constitutional issues that the horizontal effect of a fundamental rights catalogue raises, which concern the role of private responsibility within the developing constitutional order of the European Union. It therefore calls for a more systematically theorised approach towards the horizontal application of fundamental rights under the Charter framework.
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The paper highlights the National Industrial Court of Nigeria's (NICN) importance over the general courts in the interpretation of labour statutes. It compares the judicial interpretation of some ...provisions of labour statutes by the general courts in Nigeria (represented herein by the Supreme Court of Nigeria's interpretation of same provisions) with the interpretation of the NICN of same provisions. It argues that the NICN's interpretation is more favourable to labour rights than that of the general courts. It makes use of the rules of judicial interpretation and Ronald Dworkin's discussion on interpretation as a framework and adds to it by comparing the judicial interpretation of some provisions of labour statutes by the general courts with that of the NICN. It noted that the NICN's interpretation was more purposive and promoted labour rights than that of the general courts. The Supreme Court cases used to represent the position of the general courts were those decided before exclusive jurisdiction on employment and labour matters was conferred on the NICN in 2010. Presently, even though the general courts no more have jurisdiction to hear and interpret employment and labour matters the NICN's interpretations continues to promote labour rights.
In October 2016 the Australian Government established a Migrant Workers' Taskforce (MWTF), comprising high level representatives of key departments and regulators whose activities impinged in various ...ways on employment remuneration issues. Establishment of the Taskforce had been an election commitment of the Liberal-National Coalition Government along with strengthening the Fair Work Act and increasing the powers and resources of the regulator, the Fair Work Ombudsman. The underlying concern of the Taskforce was to ensure an effective whole-of-government response was adopted to deal with the problem of under-payment of wages to migrant workers. Media exposure of cases of under-payment, especially concerning 7-Eleven, and subsequent parliamentary inquiries had pointed to this being a significant problem.
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The exploitation of temporary migrant workers (TMWs) employed in Australia has been well documented by academics, government enquiries, and the Fair Work Ombudsman FWO, the Federal government agency ...responsible for enforcing wage compliance. That exploitation encompasses underpayment of wages through to unpaid wages, and includes exposure to occupational health and safety risks, sexual harassment, overcrowded and unhygienic accommodation facilities, wage deduction scams, and a failure to provide income support to injured TMWs (Doyle and Howes 2015; Australian Senate 2016; FWO 2016; Mares 2016; Underhill and Rimmer 2016; Victorian Government 2016; Berg and Farbenblum 2017; Clibborn 2018; Howe et al. 2018). In horticulture, the rapid increase in TMWs following the expansion of the Working Holiday Visa scheme in 2005, and the expansion in the supply of undocumented workers has combined to produce a workforce which is easily exploited. Rural employment has traditionally been difficult for trade unions to organise, and these difficulties are compounded with TMWs, many of whom face significant language barriers and have a poor understanding of Australian employment rights.
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What is the future for and of law and society scholarship? The Issue Editors here introduce the issue’s themes of disruption, temporality and law and their interconnection. Questioning the deeper ...implications that an era of political, cultural and technological disruption has for law and society scholarship, the various contributions to the special issue are given in outline and drawn together. The broader point emerges that any linear conception of temporality must find itself disrupted not by technology itself but by a radical plurality of laws.
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This article analyses the legal temporalities imposed by Australia’s parental leave system with reference to Pierre Bourdieu’s approach to temporal embodiment. It focuses on the temporal issues ...surrounding Australia’s parental leave pay scheme and demonstrates the legislation’s inadequacies in incorporating women’s reflexive temporal experiences of maternity into legal and temporal boundary making. This article identifies the problematic issues in the existing parental leave pay legislation as ones based on time and argues that there is one dominant conception of time in the legislation, neo-maternalistic productivism. The ideology of neo-maternalistic productivism advances a hegemonic time that structures women’s role as subservient to the productivistic regime of Australia’s neoliberal capitalism. I suggest an alternative temporal model drawing on a Bourdieusian analysis of care-based temporalities. This expansive approach to time shifts standards to accept that lived experiences of time often do not adhere to the ideal worker’s waged work trajectory.
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Nicholas Green from the Productivity Commission wonders what the world or work might be like after COVID-19 and what it might mean for public servants.
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