The protection of working relationships : a comparative study /
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作 者：edited by Frans Pennings, Claire Bosse.
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ISBN：9789041132895
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简介
In recent years it has become clear that many businesses, motivated by avoiding the rigidity and the price tag associated with labour law and social security, have succeeded in eroding the protection of labour law by creating numerous categories of workers classified as non-employees. The International Labour Organisation (ILO) has responded with its Recommendation 198, which asks its Members to undertake action to reduce "disguised" employment relationships, with the goal of ensuring that those actually working in an employment relationship are actually given the corresponding legal status. Though these are - from a legal approach - two conceptually different phenomena, they are closely related from a social policy point of view.
In order to make a substantial contribution to the discussion on these developments a group of noted European labour law scholars has undertaken the research assembled in this book, recommending labour law reforms based on a close examination of existing conditions. The eight authors analyse measures and legal instruments offered by the European Union and the ILO to cover persons performing personal work, as well as specific developments in Belgium, France, The Netherlands, Poland, Germany, and the United Kingdom. In each case they describe viable ways in which categories of persons not treated as employees can be brought under the protection of labour law. In a concluding final Chapter comparative conclusions are drawn on the basis of this study and recommendations are given to the EU, the ILO and the individual Member States.
Among the specific issues covered are the following:
redefining the subordination criterion; the role of the courts; determination of the contract of employment; forms of labour involving more than two contracting parties (e.g., employment agency arrangements); the legal position of temporary workers; "employee-like" persons, e.g., home-workers or commercial representatives; the "bogus" self-employed introduction and effect of legal presumptions in labour law and/or social security; developing uniform criteria for the employment relationship; criteria for identifying self-employed but economically-dependent workers; extension of protection of labour law to persons other than employees or the self-employed; and social rights applicable to all work contracts irrespective of their formal qualification; floor of core rights.
This study seriously contributes toward overcoming the reluctant and piecemeal measures commonly taken to extend the protection of the employment contract. Although the authors acknowledge the continuing tension between labour law protection and the need for a flexible workforce, they also recognize the positive effects of best practices that lead to more certainty, fewer disputes, and clear (but still flexible if necessary) agreements. The book will be warmly welcomed as a signal contribution to addressing what one labour law scholar has called "the most important industrial relations issue of our time"
目录
Table Of Contents:
List of Authors v
List of Abbreviations xvii
Preface and Acknowledgement xix
Chapter 1 The Legal Status of Persons Performing Work Personally: The Topic of This Book 1(4)
Claire Bosse
Frans Pennings
1 Introduction 1(2)
2 Research Questions 3(1)
3 The Contents of This Book and Acknowledgements 3(2)
Chapter 2 The Various Categories of Persons Performing Work Personally 5(10)
Frans Pennings
1 Introduction 5(1)
2 The Different Categories of Persons Performing Work 6(3)
2.1 Employed Persons 6(1)
2.2 Workers without a Contract of Employment 7(1)
2.3 The Bogus Self-employed 8(1)
2.4 The Genuine Self-employed 8(1)
3 Proposals for Distinguishing the Various Categories 9(4)
3.1 The Framework Elaborated 9(2)
Mark Freedland
3.2 The Supiot Report 11(1)
3.3 The Perulli Report 12(1)
4 Conclusions 13(2)
Chapter 3 ILO Recommendation 198, the Employment Relationship Recommendation 15(14)
Claire Bosse
1 Introduction 15(1)
2 The Conference on Contract Labour in 1998 16(1)
3 Expert Report on Disguised Employment Relationships 17(1)
4 The First Conference on the Employment Relationship 18(3)
5 The Second Conference on the Employment Relationship 21(1)
6 Content of the Recommendation 21(5)
6.1 National Policy 22(1)
6.2 Primacy of Facts 22(1)
6.3 Conditions 23(1)
6.4 Indicators 24(1)
6.5 Burden of Proof 25(1)
6.6 Disguised Employment Relationships 25(1)
7 A Proposal for a Future Convention on Disguised Employment 26(3)
Chapter 4 The European Union and the Issue of the Employment Relationship 29(14)
Frans Pennings
1 Introduction 29(1)
2 The Term Worker or Employee in EU Instruments 29(3)
3 EU Initiatives and the Scope of the Protection by Labour Law 32(8)
3.1 Studies Initiated by the European Commission 32(1)
3.2 The EU and the ILO Recommendation on the Employment Relationship 33(2)
3.3 The Green Paper 35(1)
3.4 Reactions to the Green Paper 36(1)
3.4.1 Flexicurity 37(1)
3.4.2 The Political Context 37(1)
3.4.3 Uncertainty with regard to the Definition of the Employment Relationship 38(1)
3.5 Conclusions on Green Paper Discussions 39(1)
4 The Present State of Affairs 40(1)
5 Conclusions 41(2)
Chapter 5 Protection of Working Relationships in Belgium 43(18)
Patrick Humblet
Isabel Plets
1 Introduction to the Belgian Labour Law System 43(2)
2 Limitations to the Use of Flexible Contracts 45(2)
3 Determination of the Existence of an Employment Relationship 47(3)
3.1 Introduction 47(1)
3.2 The Presumptions 47(1)
3.3 Subordination 48(2)
4 The Bogus Self-employed 50(3)
4.1 General 50(1)
4.2 The Case Law 51(1)
4.3 Interlude: Techniques for Determining Subordination 52(1)
4.4 Parliamentary Initiatives 53(1)
5 Qualifying a Work Relationship 53(4)
5.1 The Criteria 53(2)
5.2 The Commission 55(1)
5.2.1 Tasks of the Normative Division 55(1)
5.2.1.1 Gathering Advice 55(1)
5.2.1.2 Issuing a Report 56(1)
5.2.1.3 Advisory Role 56(1)
5.2.1.4 Proposals 56(1)
5.2.2 The Tasks of the Chambers of the Administrative Division 56(1)
5.3 Assessment 57(1)
6 Conformity with ILO Recommendation No. 198? 57(4)
Chapter 6 Protection of Working Relationships in France 61(22)
Isabelle Daugareilh
1 Introduction 61(4)
2 A Binary Legal Definition of Employment Relationships 65(10)
2.1 Introduction 65(1)
2.2 Classification of Working Relationships by Courts 66(1)
2.2.1 Introduction 66(1)
2.2.2 The Existence of a Legally Defined Subordinate Relationship 67(2)
2.2.3 The Existence of Provision of Work 69(2)
2.3 Legislation Classifying Employment Relationships 71(1)
2.3.1 The Legal Presumption of a Contract of Employment 71(2)
2.3.2 The Legal Presumption of Self-Employment 73(2)
3 Alternatives for Legal Protection for the Employment Relationship 75(8)
3.1 Theoretical Analyses of Protection of Employment Relationships 75(1)
3.1.1 Proposals for Legal Recognition of Common Workers' Rights 76(1)
3.1.2 Para-subordination in French Legal Theory 77(2)
3.2 A New Category: Self-employed but Economically Dependent Workers 79(1)
3.2.1 Criteria for Self-employed but Economically Dependent Workers 79(1)
3.2.2 Factors in Legal Protection of the New Category 80(3)
Chapter 7 The Protection of Working Relationships in the Netherlands 83(26)
Frans Pennings
1 Introduction 83(3)
1.1 Figures 85(1)
2 Criteria for Adopting a Contract of Employment 86(2)
3 The Flexibility and Security Act 88(2)
4 Legal Presumptions 90(5)
4.1 The System of Legal Presumptions 90(1)
4.2 Presumptions of the Existence of the Contract 91(1)
4.3 Presumptions of the Number of Working Hours 92(1)
4.3.1 Minimum Remuneration per Call 93(1)
4.4 Assessment of the Legal Presumptions 93(1)
4.4.1 Assessment of the Objectives 93(1)
4.4.2 Self-employed 94(1)
4.4.3 The Number of Working Hours 95(1)
4.4.4 Minimum Guarantee 95(1)
5 The Obligation to give Contracts of Employment to Postmen 95(2)
6 The Legal Position of Temporary Agency Workers 97(4)
6.1 Introduction 97(1)
6.2 The Provisions on Agency Workers in the Civil Code 98(2)
6.3 The System of the ABU Collective Agreement 100(1)
6.4 Health and Safety 100(1)
7 Protection of Non-employees 101(2)
7.1 Health and Safety 101(1)
7.2 The Remuneration 101(1)
7.3 Protection against Dismissal 102(1)
8 Declarations for Social Security and Tax Liability 103(3)
9 Conclusions 106(3)
Chapter 8 The Protection of Working Relationships in Poland 109(18)
Andrzej Marian Swiatkowski
1 Introduction 109(1)
2 The Present Law 110(5)
2.1 Freedom of Work 110(1)
2.2 The Presumption of Employment Relationship 111(1)
2.3 Limiting the Freedom to Choose the Type of Contract 112(1)
2.4 Contracts for an Indefinite Period and Fixed-Term Contracts 113(1)
2.5 Legal Sanctions 114(1)
3 The Draft Labour Code 115(7)
3.1 Freedom to work 115(1)
3.2 Working Relationships 116(1)
3.2.1 Contracts of Employment (Volume II, Chapter 1) 116(1)
3.2.2 Temporary Work Agreements (Volume III, Chapter 1) 117(3)
3.2.3 Telework (Volume III, Chapter 2) 120(1)
3.2.4 Managers (Volume III, Chapter 3) 120(1)
3.2.5 Commissioned Work (Volume III, Chapter 5) 121(1)
3.2.6 Home Workers (Volume III, Chapter 6) 121(1)
3.2.7 Family Members of the Employer (Vol. III Chapter 7) 121(1)
4 Employment of Non-employees (Vol. VI) 122(2)
4.1 Non-employees with an Agreement (Volume VI, Chapter 1) 122(1)
4.2 Non-employees Without an Agreement (Vol. VI, Chapter 2) 123(1)
5 Conclusion 124(3)
Chapter 9 Protection of Working Relationships in Germany 127(16)
Wolfgang Daubler
1 Introduction 127(1)
2 Disguised Employment Relationships 128(2)
3 Institutions 130(2)
3.1 Courts 130(1)
3.2 Labour Inspection 130(1)
3.3 Social Security Authorities 131(1)
3.4 Works Councils and Unions 131(1)
4 The Notion of Employee 132(3)
4.1 Definition or Description? 132(1)
4.2 Problems of Application 133(2)
5 Transforming Hidden Employment into Recognised Employment Relationships? 135(3)
6 Perspectives 138(4)
6.1 A New Notion of Employee? 138(1)
6.2 The Employee-Like Person 139(1)
6.3 Home-Workers as a Special Group 139(1)
6.4 Commercial Representatives 140(1)
6.5 Employee-Like Persons in General 141(1)
7 Conclusion 142(1)
Chapter 10 The Protection of Working Relationships under United Kingdom Law 143(30)
Alan C. Neal
1 Introduction 143(1)
2 Historical Background 144(4)
3 The Increasing Significance of `Classification' 148(5)
4 The Formal Analytical Framework under Statutory Provisions 153(12)
5 Towards a UK Approach to `the Employment Relationship'? 165(5)
6 Some Concluding Comments 170(3)
Chapter 11 Conclusions and Recommendations 173(24)
Frans Pennings
Claire Bosse
1 General 173(1)
2 The National Findings 174(19)
2.1 Redefinition of the Subordination Criterion 174(1)
2.1.1 The Contents of the Subordination Relationship 174(1)
2.1.1.1 The Role of the Courts 175(1)
2.1.2 In Case of Absence of the Power to Give Instructions 176(1)
2.1.3 A Tightening of the Subordination Criterion 177(1)
2.1.4 Tailor-made Solutions 177(1)
2.2 Primacy of Facts and Reclassification of the Contract 178(1)
2.2.1 Examples and Instruments for Reclassification 178(1)
2.2.2 Limits to Reclassification as Appearing from the Country Studies 179(2)
2.2.3 Assessment of the Limits to Reclassification 181(1)
2.3 A Broad Range of Means Has to Be Used 181(2)
2.4 Legal Presumptions That There Is a Contract of Employment 183(1)
2.4.1 Refutable and Irrefutable Presumptions 183(2)
2.4.2 Legal Presumptions of Self-employment 185(1)
2.4.3 Legal Presumptions in Social Security 185(1)
2.5 Presumption to Be Either Employed or Self-employed 186(1)
2.5.1 The Declaration that a Person is Self-employed 186(1)
2.6 Developing Uniform Criteria 187(1)
2.7 The Proposal to Expand the Scope of Labour Law 187(1)
2.8 Extension of Protection of Labour Law 188(1)
2.8.1 Self-employed 189(1)
2.9 The Hard Core of Social Rights 190(2)
2.10 Conclusions 192(1)
3 The Role of the International Organisations 193(2)
3.1 General 193(1)
3.2 The EU 194(1)
3.3 The ILO 194(1)
4 Conclusions 195(2)
Appendix 197(6)
Bibliography 203(12)
Index 215
List of Authors v
List of Abbreviations xvii
Preface and Acknowledgement xix
Chapter 1 The Legal Status of Persons Performing Work Personally: The Topic of This Book 1(4)
Claire Bosse
Frans Pennings
1 Introduction 1(2)
2 Research Questions 3(1)
3 The Contents of This Book and Acknowledgements 3(2)
Chapter 2 The Various Categories of Persons Performing Work Personally 5(10)
Frans Pennings
1 Introduction 5(1)
2 The Different Categories of Persons Performing Work 6(3)
2.1 Employed Persons 6(1)
2.2 Workers without a Contract of Employment 7(1)
2.3 The Bogus Self-employed 8(1)
2.4 The Genuine Self-employed 8(1)
3 Proposals for Distinguishing the Various Categories 9(4)
3.1 The Framework Elaborated 9(2)
Mark Freedland
3.2 The Supiot Report 11(1)
3.3 The Perulli Report 12(1)
4 Conclusions 13(2)
Chapter 3 ILO Recommendation 198, the Employment Relationship Recommendation 15(14)
Claire Bosse
1 Introduction 15(1)
2 The Conference on Contract Labour in 1998 16(1)
3 Expert Report on Disguised Employment Relationships 17(1)
4 The First Conference on the Employment Relationship 18(3)
5 The Second Conference on the Employment Relationship 21(1)
6 Content of the Recommendation 21(5)
6.1 National Policy 22(1)
6.2 Primacy of Facts 22(1)
6.3 Conditions 23(1)
6.4 Indicators 24(1)
6.5 Burden of Proof 25(1)
6.6 Disguised Employment Relationships 25(1)
7 A Proposal for a Future Convention on Disguised Employment 26(3)
Chapter 4 The European Union and the Issue of the Employment Relationship 29(14)
Frans Pennings
1 Introduction 29(1)
2 The Term Worker or Employee in EU Instruments 29(3)
3 EU Initiatives and the Scope of the Protection by Labour Law 32(8)
3.1 Studies Initiated by the European Commission 32(1)
3.2 The EU and the ILO Recommendation on the Employment Relationship 33(2)
3.3 The Green Paper 35(1)
3.4 Reactions to the Green Paper 36(1)
3.4.1 Flexicurity 37(1)
3.4.2 The Political Context 37(1)
3.4.3 Uncertainty with regard to the Definition of the Employment Relationship 38(1)
3.5 Conclusions on Green Paper Discussions 39(1)
4 The Present State of Affairs 40(1)
5 Conclusions 41(2)
Chapter 5 Protection of Working Relationships in Belgium 43(18)
Patrick Humblet
Isabel Plets
1 Introduction to the Belgian Labour Law System 43(2)
2 Limitations to the Use of Flexible Contracts 45(2)
3 Determination of the Existence of an Employment Relationship 47(3)
3.1 Introduction 47(1)
3.2 The Presumptions 47(1)
3.3 Subordination 48(2)
4 The Bogus Self-employed 50(3)
4.1 General 50(1)
4.2 The Case Law 51(1)
4.3 Interlude: Techniques for Determining Subordination 52(1)
4.4 Parliamentary Initiatives 53(1)
5 Qualifying a Work Relationship 53(4)
5.1 The Criteria 53(2)
5.2 The Commission 55(1)
5.2.1 Tasks of the Normative Division 55(1)
5.2.1.1 Gathering Advice 55(1)
5.2.1.2 Issuing a Report 56(1)
5.2.1.3 Advisory Role 56(1)
5.2.1.4 Proposals 56(1)
5.2.2 The Tasks of the Chambers of the Administrative Division 56(1)
5.3 Assessment 57(1)
6 Conformity with ILO Recommendation No. 198? 57(4)
Chapter 6 Protection of Working Relationships in France 61(22)
Isabelle Daugareilh
1 Introduction 61(4)
2 A Binary Legal Definition of Employment Relationships 65(10)
2.1 Introduction 65(1)
2.2 Classification of Working Relationships by Courts 66(1)
2.2.1 Introduction 66(1)
2.2.2 The Existence of a Legally Defined Subordinate Relationship 67(2)
2.2.3 The Existence of Provision of Work 69(2)
2.3 Legislation Classifying Employment Relationships 71(1)
2.3.1 The Legal Presumption of a Contract of Employment 71(2)
2.3.2 The Legal Presumption of Self-Employment 73(2)
3 Alternatives for Legal Protection for the Employment Relationship 75(8)
3.1 Theoretical Analyses of Protection of Employment Relationships 75(1)
3.1.1 Proposals for Legal Recognition of Common Workers' Rights 76(1)
3.1.2 Para-subordination in French Legal Theory 77(2)
3.2 A New Category: Self-employed but Economically Dependent Workers 79(1)
3.2.1 Criteria for Self-employed but Economically Dependent Workers 79(1)
3.2.2 Factors in Legal Protection of the New Category 80(3)
Chapter 7 The Protection of Working Relationships in the Netherlands 83(26)
Frans Pennings
1 Introduction 83(3)
1.1 Figures 85(1)
2 Criteria for Adopting a Contract of Employment 86(2)
3 The Flexibility and Security Act 88(2)
4 Legal Presumptions 90(5)
4.1 The System of Legal Presumptions 90(1)
4.2 Presumptions of the Existence of the Contract 91(1)
4.3 Presumptions of the Number of Working Hours 92(1)
4.3.1 Minimum Remuneration per Call 93(1)
4.4 Assessment of the Legal Presumptions 93(1)
4.4.1 Assessment of the Objectives 93(1)
4.4.2 Self-employed 94(1)
4.4.3 The Number of Working Hours 95(1)
4.4.4 Minimum Guarantee 95(1)
5 The Obligation to give Contracts of Employment to Postmen 95(2)
6 The Legal Position of Temporary Agency Workers 97(4)
6.1 Introduction 97(1)
6.2 The Provisions on Agency Workers in the Civil Code 98(2)
6.3 The System of the ABU Collective Agreement 100(1)
6.4 Health and Safety 100(1)
7 Protection of Non-employees 101(2)
7.1 Health and Safety 101(1)
7.2 The Remuneration 101(1)
7.3 Protection against Dismissal 102(1)
8 Declarations for Social Security and Tax Liability 103(3)
9 Conclusions 106(3)
Chapter 8 The Protection of Working Relationships in Poland 109(18)
Andrzej Marian Swiatkowski
1 Introduction 109(1)
2 The Present Law 110(5)
2.1 Freedom of Work 110(1)
2.2 The Presumption of Employment Relationship 111(1)
2.3 Limiting the Freedom to Choose the Type of Contract 112(1)
2.4 Contracts for an Indefinite Period and Fixed-Term Contracts 113(1)
2.5 Legal Sanctions 114(1)
3 The Draft Labour Code 115(7)
3.1 Freedom to work 115(1)
3.2 Working Relationships 116(1)
3.2.1 Contracts of Employment (Volume II, Chapter 1) 116(1)
3.2.2 Temporary Work Agreements (Volume III, Chapter 1) 117(3)
3.2.3 Telework (Volume III, Chapter 2) 120(1)
3.2.4 Managers (Volume III, Chapter 3) 120(1)
3.2.5 Commissioned Work (Volume III, Chapter 5) 121(1)
3.2.6 Home Workers (Volume III, Chapter 6) 121(1)
3.2.7 Family Members of the Employer (Vol. III Chapter 7) 121(1)
4 Employment of Non-employees (Vol. VI) 122(2)
4.1 Non-employees with an Agreement (Volume VI, Chapter 1) 122(1)
4.2 Non-employees Without an Agreement (Vol. VI, Chapter 2) 123(1)
5 Conclusion 124(3)
Chapter 9 Protection of Working Relationships in Germany 127(16)
Wolfgang Daubler
1 Introduction 127(1)
2 Disguised Employment Relationships 128(2)
3 Institutions 130(2)
3.1 Courts 130(1)
3.2 Labour Inspection 130(1)
3.3 Social Security Authorities 131(1)
3.4 Works Councils and Unions 131(1)
4 The Notion of Employee 132(3)
4.1 Definition or Description? 132(1)
4.2 Problems of Application 133(2)
5 Transforming Hidden Employment into Recognised Employment Relationships? 135(3)
6 Perspectives 138(4)
6.1 A New Notion of Employee? 138(1)
6.2 The Employee-Like Person 139(1)
6.3 Home-Workers as a Special Group 139(1)
6.4 Commercial Representatives 140(1)
6.5 Employee-Like Persons in General 141(1)
7 Conclusion 142(1)
Chapter 10 The Protection of Working Relationships under United Kingdom Law 143(30)
Alan C. Neal
1 Introduction 143(1)
2 Historical Background 144(4)
3 The Increasing Significance of `Classification' 148(5)
4 The Formal Analytical Framework under Statutory Provisions 153(12)
5 Towards a UK Approach to `the Employment Relationship'? 165(5)
6 Some Concluding Comments 170(3)
Chapter 11 Conclusions and Recommendations 173(24)
Frans Pennings
Claire Bosse
1 General 173(1)
2 The National Findings 174(19)
2.1 Redefinition of the Subordination Criterion 174(1)
2.1.1 The Contents of the Subordination Relationship 174(1)
2.1.1.1 The Role of the Courts 175(1)
2.1.2 In Case of Absence of the Power to Give Instructions 176(1)
2.1.3 A Tightening of the Subordination Criterion 177(1)
2.1.4 Tailor-made Solutions 177(1)
2.2 Primacy of Facts and Reclassification of the Contract 178(1)
2.2.1 Examples and Instruments for Reclassification 178(1)
2.2.2 Limits to Reclassification as Appearing from the Country Studies 179(2)
2.2.3 Assessment of the Limits to Reclassification 181(1)
2.3 A Broad Range of Means Has to Be Used 181(2)
2.4 Legal Presumptions That There Is a Contract of Employment 183(1)
2.4.1 Refutable and Irrefutable Presumptions 183(2)
2.4.2 Legal Presumptions of Self-employment 185(1)
2.4.3 Legal Presumptions in Social Security 185(1)
2.5 Presumption to Be Either Employed or Self-employed 186(1)
2.5.1 The Declaration that a Person is Self-employed 186(1)
2.6 Developing Uniform Criteria 187(1)
2.7 The Proposal to Expand the Scope of Labour Law 187(1)
2.8 Extension of Protection of Labour Law 188(1)
2.8.1 Self-employed 189(1)
2.9 The Hard Core of Social Rights 190(2)
2.10 Conclusions 192(1)
3 The Role of the International Organisations 193(2)
3.1 General 193(1)
3.2 The EU 194(1)
3.3 The ILO 194(1)
4 Conclusions 195(2)
Appendix 197(6)
Bibliography 203(12)
Index 215
The protection of working relationships : a comparative study /
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