This article examines the legal status and regulatory functions of trade unions within the labour law frameworks of the European Union and Ukraine, with a particular focus on their role in systems of social risk management. Against the backdrop of profound labour market transformations – driven by crises, armed conflict, digitalisation and the decentralisation of employment relations – the study analyses the capacity of trade unions to influence legal mechanisms designed to protect workers. A comparative analysis is conducted of EU legal standards (including the European Social Charter, the EU Charter of Fundamental Rights and ILO Conventions) and Ukrainian legislation concerning the recognition of trade unions as actors of collective protection. Special attention is devoted to the involvement of trade unions in risk-management processes such as the prevention of labour disputes, social dialogue, consultation during employment restructuring and participation in the formation of labour legislation. The article concludes that the role of trade unions within EU legal systems has been strengthened through the formalisation of their participation in public regulation, whereas in Ukraine this function remains largely declaratory. The study proposes pathways for adapting European experience to the Ukrainian context in order to enhance the effectiveness of trade unions as institutions of social protection and as regulators of labour-related risks.

In this article, the concept of the law of the everyday is used to understand and describe how law shapes ordinary days in a person’s life. Reading the chapter ‘Baloga’ in Ben Judah’s This is Europe: The Way We Live Now, about a Romanian truck driver and his partner and co-driver, through a spatio-temporal lens provides insights into how their work and living conditions are largely governed by the detailed and comprehensive system of rules for workers and vehicles in the road transport sector (‘the Mobility Package’). To a significant extent, the Mobility Package consists of rules dependent on time and place: when and where the driver may operate the vehicle. The article takes one of its legal anchor points from the Mobility Package and the other from the European Union’s fundamental legal basis: the treaty-enshrined highly competitive social market economy – which, as the wording suggests, entails that extensive market-economic ambitions are to be balanced against social objectives. The rules in the Mobility Package constitute a legal expression of this pursuit of balance. At the same time, the market economy also entails additional spatio-temporal aspects: within the logistics sector, the optimal use of time and space is a decisive factor in maximising economic profit. Through the spatio-temporal lens and the bottom-up perspective implied by the law of the everyday, the article demonstrates the law’s extensive and highly concrete impact on most aspects of a long-distance truck driver’s life. It also highlights structural conditions inherent in the cross-border road transport sector, such as occupational risks, unequal treatment and a high social cost, as well as the ambivalent way in which the Mobility Package seeks to address them.

The mood amongst workers in Western Europe as the 1960s ended was one of frustration and anticipation. From the streets of Paris in May 1968 to the factory floors of Turin in the autumn of 1969, social movements of workers and students demanded a real say over their daily lives and the institutions that shaped them. These calls for economic democracy were picked up by trade unions, national politicians and, eventually, the European Commission. In 1973, having published proposals that included plans for ‘worker participation’, the Commission wrote that if employees did not have a voice, the Commission’s proposals would not ‘satisfy the requirements of society today’. However, the Commission’s interpretation of industrial democracy was criticised by trade unions and socialist politicians, buoyed by the militancy of the workers, for not going far enough. As the Commission tried to persuade labour representatives that the European project was taking their demands seriously, another critique of worker participation crystallised on the right. As Keynesianism lost credibility in Member States, and a neoliberal discourse emerged around the need for Europe to be ‘competitive’ and ‘flexible’, employer groups pushed back against worker participation and undermined a labour movement that had posed a genuine threat to capital’s interests. This paper tells the story of one component of the Commission’s plans: the proposed Fifth Company Law Directive. Using archival material from EC institutions and employer lobby groups, it argues for an understanding of company and labour law harmonisation that takes seriously the political economy of Western Europe during the ‘Long 1970s’.

This essay explores the conceptual and methodological contribution of a spatial understanding of labour law, examining the ways in which labour laws create sites of inclusion and exclusion that can be subverted by worker action. It argues that labour relations cannot be apprehended without considering their place in space. It further argues that labour laws tend to foster inertia within industrial relations by recognizing certain workspaces while failing to adapt to the dynamic geographies of the workplace. Methodologically, this implies a shift from a neutral discourse of rights to one that is anchored in social life where workers converge. This essay suggests that recognizing concrete and dynamic spaces of labour within legislation can lead to upholding diverse voices at work, especially from workers traditionally left in the margins, like women, minorities, and migrants.

En 2021, avec l’adoption de la Loi modernisant le régime de santé et de sécurité du travail, le législateur québécois a introduit l’obligation pour tous les employeurs de prévenir les risques psychosociaux du travail (RPS). Le présent texte brossera un portrait de l’architecture du droit qui prend en compte les RPS du travail et leurs effets. Les autrices et auteur du texte mettront ensuite en dialogue les résultats de leur recherche respective, lesquelles traitent toutes de la santé mentale au travail, afin d’interroger l’effectivité du droit entourant la prise en charge des RPS. Ce texte sera l’occasion d’étudier le rôle, la marge de manœuvre et les pouvoirs de certains acteurs du monde du travail (gestionnaires, syndicats, organismes administratifs). Y seront détaillés des exemples de bonnes pratiques de même que les limites du cadre législatif, les défis qui demeurent et les perspectives d’amélioration en vue d’assurer un encadrement exhaustif et effectif des RPS.

Hommage à trois figures majeures du droit du travail québécois, Guylaine Vallée, Michel Coutu et Gilles Trudeau, dont les trajectoires intellectuelles ont profondément marqué la façon de comprendre la nature et la portée du droit du travail, ce numéro spécial rassemble auteurs et autrices s’inscrivant dans leur héritage. Il s’articule autour de deux grandes réflexions sur l’avenir du droit du travail, d’une part, les effets des mutations contemporaines du travail et de l’emploi sur l’effectivité du droit du travail; d’autre part, les acteurs et les cadres normatifs impliqués dans la régulation du travail.

Social reproduction offers a critical lens through which to analyse how labour law creates and constructs labour/ers. Socially reproductive work, traditionally ignored in waged labour markets, has been omitted from legal categories that protect workers. Yet these same legal categories that create and construct labour/ers are themselves socially reproduced. In Sicilian agricultural work, social reproduction happens in the extra care that is needed in labour carried out by migrantised workers, as well as the silence that is reproduced by markets that overlook the exploitation buttressing a local economy. The lens of social reproduction connects the work behind the scenes that depends on the complicity, whether wilful or ignorant, of consumers who do not ‘care’ that the labour producing Sicilian Denominazione di Origine Protetta (Protected Designation of Origin, DOP) and Indicazione Geografica Protetta (Protected Geographical Denomination, IGP) products is legally irregular. Contributing to discussions of labour law’s limits, this article addresses how labour exploitation is socially reproduced through the invisibilisation of labour involved in cultivating and harvesting Sicilian DOP olives and IGP tomatoes.

Understanding how law is articulated by computer means becomes crucial amid the widespread use of algorithmic decision-making systems (ADMs) in public policies. Based on a case study of the profiling algorithm deployed in labour market policies in Poland, this article contributes to the debate on computer representation of law. Using unique data concerning ADMs and their development, we address the following questions: How is the law articulated through algorithms? Who produces, and how, what kinds of discrepancies between the law and ADMs? Our analysis revealed discrepancies that were indicative of political decision-making that go far beyond adaptations of law to the requirements of ADMs. Furthermore, contrary to what the literature suggests, these discrepancies were a product of backstage decision-making by traditional policy-makers – executive and public administration – rather than system-level bureaucrats. Thus, we argue for the need to incorporate the political dimension more systematically into the analysis of computer articulation of law.

This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the formal regulatory framework regarding work experience placements. The analysis is informed by data gathered in a series of 68 semi-structured interviews conducted with individuals from 15 universities around Australia and provides unique insights into how Universities are acting as regulators in the broad sense of the word. Understanding the enforcement of educational regulation is important, because it is the only national tool directed to ensuring work experience opportunities afford real learning which will facilitate skills development and increase future employment opportunities and are equitable and safe for student participants.

This longitudinal and empirical study compares Australian labour enforcement, predominantly between the New South Wales (NSW) and Commonwealth jurisdictions. It documents the volume of enforcement litigation, inspection and arrears recovery within an Australian state for the first time. These enforcement activities are then compared to equivalent Commonwealth labour enforcement over time, with a particular focus on the activities of the federal inspectorate since the Commonwealth takeover of industrial relations in 2005. This comparison enables three significant claims. First, that contemporary labour enforcement activities have not kept pace with those conducted by inspectorates in the early to mid-twentieth century, most of which were performed by the States. Second, that enforcement has always been a significant part of the Australian industrial relations landscape, reinforcing the conciliation and arbitration system, particularly within the States. And third, those high levels of regulation and labour enforcement played a role in reducing social inequality throughout the mid-twentieth century.

The aim of this paper is to inform a sociological jurisprudence of the implied duty in the contract of employment of mutual trust and confidence. Present analyses of the emerging term have been doctrinal in nature. Such scholarship contributes a normative internal perspective to what can be understood as the jurisprudential project of guarding and maintaining law as a practice of regulation. This paper seeks to generate knowledge that will allow for an extension of the jurisprudential analysis to take into account how mutual trust and confidence may manifest in contemporary conditions of work. This is achieved by, first, presenting original sociological data of the employment relation in a work context likely to demonstrate practices that resonate with features of mutual trust and confidence – that of early-stage digital technology startups – and, secondly, contrasting this empirical account with doctrinal conceptions of the term. Findings unsettle the dominant jurisprudential account of mutual trust and confidence as positively contributing to the social goal of labour law as operating to counter the power of capital.

In The Redress of Law, Emilios Christodoulidis explores the philosophical foundations of market constitutionalism and shows how its embedded rationality shapes global governance. The author delves into critical phenomenology to lift the veil of ignorance on the fact that market constitutionalism has replaced political rationality with economic reasoning. By grounding its theory in the continental critical theory, ranging from Marxism to Weil’s existentialism and Luhmann’s systems theory, the book shows how the redress of law is also a practice that could radically transform the global political economy. However, the challenge is to displace the modern thinking of market constitutionalism that is rooted in functional differentiation and privileges constituted rather than constituent power. Such market thinking has allowed global governance experts to simplify and reduce to numbers complex polical, cultural and social phenomena embedded in constitutional legal regimes. The disembedding of law from society through functional differentiation, and the sole preoccupation of legal experts with constituted power, have contributed to the depoliticisation of constitutionalism as both theory and practice. A quintessential example of market constitutionalism in practice are global governance indicators. These indexes entail comparisons among legal regimes that empower private market rules as the final arbiter of local redistributive policies while bracketing historical, genealogical and reflexive connections to law’s social realities. The book offers several strategies of ‘redress of law’ such as rupture, contradiction and open dialectic, aiming to foreground political rather than market constitutionalism and to revamp the dialectic between constituted power exemplified by constitutional texts and constituent power, exemplified by strikes. This Article praises Christodoulidis’s sophisticated theoretical framework grounded in critical phenomenology, but at the same time pushes the author’s argument beyond the book itself. By questioning the practical implications of the redress of law, the focus on legal assumptions in global governance shows how legal experts in a variety of legal fields beyond constitutionalism have reproduced existing inequalities defined in terms of market, social and colonial hierarchies.

The UK enacted its first legal measure to address gender pay inequity, the Equal Pay Act 1970, more than 50 years ago. Yet, in 2021, the gender pay gap (GPG) still stood at 15.4%. Departing from the remedial and individual approach that characterises equal pay legislation, the 2017 Gender Pay Gap Information Regulations (the Regulations) require private and voluntary sector organisations with 250+ employees to annually publish pay data broken down by gender. The long-term aspiration of the Regulations is to contribute to closing the GPG within a generation. It is also hoped that they will encourage the public disclosure of pay data and changes in workplace policies to reduce organisational GPGs (immediate aims) and improve employers’ accountability (underlying aim). This paper considers whether the Regulations have what it takes to meet those immediate and underlying aims. Our assessment framework is built on the premise that for public disclosure to be useful and for employers to tackle the causes of the GPG, the information reported must be of sufficient quality, meaningful and relevant. The paper draws on both doctrinal analysis and empirical data reported by FTSE 100 Index companies to assess the Regulations and determine whether they hold the potential to meet those aims.

To address the issue of persistent unemployment, the UK Government implemented a conditional welfare scheme. Prompted by Mantouvalou's argument that the scheme forces people into exploitative work, this paper addresses the ‘pressing’ question of whether the scheme is compatible with the prohibition on ‘forced or compulsory labour’ under Article 4(2) of the European Convention on Human Rights. It is argued that, whether the scheme imposes the menace of a penalty, is involuntary, seriously exploitative or a normal civic obligation, ultimately depends on different understandings of the demands of distributive justice. Given the politically contested nature of those demands, Article 4(2) is a poor weapon to use when challenging the UK's conditional welfare scheme.

This paper draws on Marxist scholarship concerning the law's emancipatory potential to shed new light on the history of UK trade unions, and their relationship with law. It traces the historical development of UK trade union law from the nineteenth century to the present day with a view to illustrating the importance of considering not just the content, but also the form, of law, in explaining the role of law in shaping the development of the trade union movement, and in understanding the limits of law, including human rights law, when it comes to realising the emancipatory potential of trade unions in society today. It concludes with some observations about how legal and social actors might make use of their understanding of the legal form when it comes to harnessing the law as part of their political strategies.

Discrimination law primarily relies on individual enforcement for addressing discrimination at work; yet those who are most impacted by discrimination are likely the least able to enforce their rights. The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model? Drawing on a mixed method, multi-year comparative study of the enforcement of age discrimination law in the UK, Australia and Sweden, this paper considers the gaps, limits and risks of the individual enforcement model in discrimination law. Integrating doctrinal analysis; statistical analysis of claims and cases, and data from the EU and OECD; qualitative expert interviews; and a survey of legal practitioners, this paper argues that while individual enforcement is inherently limited as a tool for achieving systemic change, it must remain part of any legislative model. Reflecting on the experience in Sweden, where individual enforcement of discrimination law is significantly curtailed, the paper posits that individual rights and individual enforcement remain important complements to other regulatory tools, particularly in jurisdictions with strong enduring age norms. Abandoning or severely restricting individual enforcement is unlikely to support either the macro or micro effectiveness of age discrimination law.

This article addresses the potential of the Fair Work Act’s good faith bargaining provision to enhance good faith bargaining and employment relationships, using New Zealand’s good faith provisions under the Employment Relations Act 2000 as a comparative frame of reference. It explores the limitations of the Fair Work Act’s compliance-based approach to good faith, which consists mainly of the parties presenting a legally defensible appearance of not acting in bad faith. In contrast, the New Zealand legislation aims to suffuse good faith with considerable content and definition, enabling parties to the employment relationship to extend good faith well beyond bargaining. In contrast to the Employment Relations Act, the formalistic, procedural approach promoted by the Fair Work Act is unlikely to encourage a significant cultural change towards meaningful good faith principles and practices.

The Your Rights at Work Campaign in the lead-up to the 2007 Australian federal election successfully mobilised a groundswell of community opposition to the radically anti-union Work Choices employment relations legislation of 2005. There were hopes that its successor, the 2009 Fair Work Act, would usher in a new regime of good-faith workplace relations, support for collective bargaining and vulnerable workers’ access to enforceable labour rights. Major gaps are the failure to address workplace power imbalance, especially in small workplaces, and lack of support for employee participation and voice mechanisms. A case is made for the inclusion of such mechanisms in legislative National Employment Standards. The article concludes by arguing that it is a mistake for unions to expect too much from legislation, rather than investing in the pursuit of the sort of community alliances which, after all, have made a restoration of Work Choices untenable.

At first glance, Part 3–1 of the Fair Work Act 2009 (Cth) seems to overlap with long-established anti-discrimination laws, offering protection against adverse, attribute-based conduct in employment. On close analysis, however, it turns out to be a new and quite different regime. Although the Fair Work Act offers a simple alternative to dated and complicated anti-discrimination laws, its provisions are at times overly-simple, raising uncertainty about how they will operate. Our analysis leads us to conclude that the approach to discrimination protection in the Fair Work Act, while an important addition to the remedies available to Australian workers, is compromised by failing to take account of lessons learned in the long history of anti-discrimination law.