Comparative Labour Law
Lecture 4
Part 1 – Europe
The contract of employment
- In all European countries contracts of employment are essentially contracts.
- As such they are to a certain extent subject to the general principles of civil law/common law
on contracts as far as labour law is not deviating from those principles.
- In most EU countries courts will apply a number of basic concepts of the general civil law
(common law) on contracts of employment
o Rules on legal capacity
o Necessity of free will of both parties to such a contract
o Etc.
- Sometimes this may entail anility of contract in case these concepts are violated
- Rights and obligations of parties are primarily determined by what parties themselves have
agreed
o In practice, parties have not agreed on much explicitly; apart from date of
commencement, working hours, initial salary
o Sometimes, especially in small enterprises, parties have not even done that (in
writing)
o However recently the EU sees this as mandatory, that the employer checks this
information in a written contract
The applicability of the collective agreement
Special phenomenon in labour law. Concluded between employers and trade unions (which are
private persons).
Depends on two factors:
A. The scope of the collective agreement in regards to:
a. Time
b. Territory
c. Enterprise/sector
d. Person/function
Collective agreement is bound to these parts 🡪 collective agreement from Belgium is not
relevant for people working in France
B. The membership factor in regards to:
a. The employee’s side
b. The employer’s side
Important check; has to do with the private law origin of the collective agreement
The membership factor
The Collective agreement is applicable
- To ALL employees working within the scope of the collective agreement [regardless to
whether or not they are a member of a trade union]
- Working in service of an employer who is bound to the collective agreement because
o (a) he himself has signed it or
o (b) he is member of an employers’ association that has signed it.
- Parliament shave basically limited the binding force of the c.a. to the workers of companies
whose employer is bound to the c.a.
o Whether the worker is a member of the trade union isn’t important; the employer
must be a member of the employer’s association or sign the contract himself.
, ▪ Means every employer who doesn’t like to be bound to a c.a. can easily
avoid the binding force by not signing or by cancelling its membership of an
employer’s association 🡪 then the c.a. is not applicable to the employment
contracts, even if they fall within the scope of a collective agreement
▪ This Achilles heal is covered by the extension erga omnes
Extension procedure
- The collective agreement is applicable on ALL employees of ALL employers in a sector, if the
collective agreement has been declared “general binding” erga omnes (= for everyone).
- However, only a majority of the European countries have this procedure
o No extension procedures in UK/IT/SE/DK
o The countries where it exists don’t always use it as much
o Technical aspects are discussed in syllabus
Definition of wage
All countries in Europe have a vague definition of “wage” in common:
- Wage is the quid pro quo which the employer owes to the employee for the work that the
employee has performed.
- However, is it a netto or gross wage? Does it only include money, or also nature? > wage
needs to be defined in every part
- Vital interest for the workers; law makers have thus intervened to protect the wages, as non-
paid wages is one of the oldest forms of labour abuse.
The protection of the wage
All European countries have statutes and/or case law on questions like
- Obligations with regard to time, place and form of wage payment
- Right to receive an itemised pay slip
- The admissibility of deductions from the wage
- Prescription of wage claims
- Priority (and even guarantees) in case of bankruptcy
o Eu law requires all states to have guarantee firms (so they can at least pay a portion
of the wage claims in case of bankruptcy of a firm.
- Wage payment if no work is performed
o Due to employee (unauthorized absence) 🡪 not continued
o Due to employer (lack of materials/tools) 🡪 continued
o Crisis (such as corona)
▪ Usa 🡪 sending home without pay
▪ EU 🡪 unemployment benefits (short time regulations)
30 mins
The minimum wage
- Most European States nowadays have a statutory minimum wage.
o Uniform for most industries
o Called SMICK
- A few important states don’t have.
o Austria
o Italy
o Cyprus
o Denmark
o Sweden
o Finland
Lecture 4
Part 1 – Europe
The contract of employment
- In all European countries contracts of employment are essentially contracts.
- As such they are to a certain extent subject to the general principles of civil law/common law
on contracts as far as labour law is not deviating from those principles.
- In most EU countries courts will apply a number of basic concepts of the general civil law
(common law) on contracts of employment
o Rules on legal capacity
o Necessity of free will of both parties to such a contract
o Etc.
- Sometimes this may entail anility of contract in case these concepts are violated
- Rights and obligations of parties are primarily determined by what parties themselves have
agreed
o In practice, parties have not agreed on much explicitly; apart from date of
commencement, working hours, initial salary
o Sometimes, especially in small enterprises, parties have not even done that (in
writing)
o However recently the EU sees this as mandatory, that the employer checks this
information in a written contract
The applicability of the collective agreement
Special phenomenon in labour law. Concluded between employers and trade unions (which are
private persons).
Depends on two factors:
A. The scope of the collective agreement in regards to:
a. Time
b. Territory
c. Enterprise/sector
d. Person/function
Collective agreement is bound to these parts 🡪 collective agreement from Belgium is not
relevant for people working in France
B. The membership factor in regards to:
a. The employee’s side
b. The employer’s side
Important check; has to do with the private law origin of the collective agreement
The membership factor
The Collective agreement is applicable
- To ALL employees working within the scope of the collective agreement [regardless to
whether or not they are a member of a trade union]
- Working in service of an employer who is bound to the collective agreement because
o (a) he himself has signed it or
o (b) he is member of an employers’ association that has signed it.
- Parliament shave basically limited the binding force of the c.a. to the workers of companies
whose employer is bound to the c.a.
o Whether the worker is a member of the trade union isn’t important; the employer
must be a member of the employer’s association or sign the contract himself.
, ▪ Means every employer who doesn’t like to be bound to a c.a. can easily
avoid the binding force by not signing or by cancelling its membership of an
employer’s association 🡪 then the c.a. is not applicable to the employment
contracts, even if they fall within the scope of a collective agreement
▪ This Achilles heal is covered by the extension erga omnes
Extension procedure
- The collective agreement is applicable on ALL employees of ALL employers in a sector, if the
collective agreement has been declared “general binding” erga omnes (= for everyone).
- However, only a majority of the European countries have this procedure
o No extension procedures in UK/IT/SE/DK
o The countries where it exists don’t always use it as much
o Technical aspects are discussed in syllabus
Definition of wage
All countries in Europe have a vague definition of “wage” in common:
- Wage is the quid pro quo which the employer owes to the employee for the work that the
employee has performed.
- However, is it a netto or gross wage? Does it only include money, or also nature? > wage
needs to be defined in every part
- Vital interest for the workers; law makers have thus intervened to protect the wages, as non-
paid wages is one of the oldest forms of labour abuse.
The protection of the wage
All European countries have statutes and/or case law on questions like
- Obligations with regard to time, place and form of wage payment
- Right to receive an itemised pay slip
- The admissibility of deductions from the wage
- Prescription of wage claims
- Priority (and even guarantees) in case of bankruptcy
o Eu law requires all states to have guarantee firms (so they can at least pay a portion
of the wage claims in case of bankruptcy of a firm.
- Wage payment if no work is performed
o Due to employee (unauthorized absence) 🡪 not continued
o Due to employer (lack of materials/tools) 🡪 continued
o Crisis (such as corona)
▪ Usa 🡪 sending home without pay
▪ EU 🡪 unemployment benefits (short time regulations)
30 mins
The minimum wage
- Most European States nowadays have a statutory minimum wage.
o Uniform for most industries
o Called SMICK
- A few important states don’t have.
o Austria
o Italy
o Cyprus
o Denmark
o Sweden
o Finland
