Revista Crítica de Historia de las Relaciones Laborales y de la Política Social
ISSN versión electrónica: 2173-0822
International and Comparative Labour Law. Current Challenges. Arturo Bronstein
Bogumil Maria Termiński-Mrowiec
The global processes, observed in recent years, place us before the necessity of a broad debate on the future and the challenges facing the international Labour Law. There are in fact more and more voices on a deep crisis in this area, both as a scientific discipline, as well as the impact plane on the situation of employees. In a study, published in 2009, entitled Death of Labour Law Martin Vrenken went even so far as to say that less and less impact of the standards of Labour Law at the employment sector as well as the loss of its importance as a field of research is observed. It seems that the author's concerns are actually at least partially supported by the facts. The development of multiple planes of public international law, human rights, environmental law, and bioethical law, is accompanied by the stagnation and even regression of cooperation in the field of Labour Law.
Does the situation really look that bad? How do the current challenges and prospects facing the international Labour Law and internal legislation look like in this regard? Helpful in answering to the questions raised above may be the reading of a recently published work by Arturo Bronstein. The author, a theoretician and practitioner, in a very synthetic form shows the current state of international and comparative Labour Law, he also relates to major challenges and problems facing the said area.
Both the international Labour Law and national legislation in this area in recent years have significantly changed its face. The major causative factors of the evolution of Labour Law can include political factors (especially the integration processes and the debate on the shape of social policy), economic factors (changes of employment patterns and economic consequences of globalization) and social factors (especially the development of the area of human rights). These factors make it difficult to interpret Labour Law on the basis of scientific concepts from dozens or so years ago. Published in 1979, the work of Nicolas Valticos International Labour Law can hardly be considered a work meeting the requirements of modern times.
The importance of the debate on the future of international Labour Law also reflects the increasing number of scientific publications in this field in recent years. The most significant books published in this field in recent years include works by Robert J. Flanagan and William Gould (2003), Sir Bob Hepple (2005), Roger Blanpain (2008, 2009, 2010), Jean-Michel Servais (2009). Comparative aspects of national Labour Laws are discussed in, inter alia, collective works, edited by Philip M. Berkowitz, and Thomas Muller-Bonanni (2008) and Greg Bamber and Russell D. Lansbury (2004). Like the authors mentioned above, Arturo Bronstein also raises important arguments in the debate on today's shape, future and challenges of Labour Law the in the inner and international sphere. We will have a more detailed look at at least some of them.
The author begins his deliberations, presented in the book from the characteristics of the sources of Labour Law and the main stages of its development. As he points out, its present shape is influenced both by political factors as well as measures dictated by purely economic calculation (for example, European economies need migrant workers.) Particular attention was also paid to the analysis of the main causes of the crisis observed in respect of employment law in recent years. The four main categories of issues scored by the author include the scope and application of Labour Law, the need to adapt its provisions to changing technologies and organizational forms of employment, poor efficiency of national Labour Law and changes in the ideological and conceptual foundations. A particularly important piece of work seems to be the second chapter, concerning the impact of Labour Law and the entities to which it applies. The author focuses his deliberations particularly on the issue of the impact of the Labour Law on so-called, gray economy, new forms of employment and also on the decentralization of employment, currently very important for the global exchange of goods and services.
The third chapter of the book has been devoted to the employment security. The author broadly analyses the controversies over the issue of unfair dismissal. It is the principle of terminating contracts of employment and the need to protect workers against unfair dismissal which, for decades, has been one of the most sensitive and somewhat controversial planes of international Labour Law. The next section of the book focuses on the social dimension of the global economy. The author extensively discusses the evolution of the social clause (from ILO to its modern understanding within the WTO) and other international agreements adopted so far in the rights of employees. It also refers to corporate codes of responsibility, the increasingly accepted within large corporations. Given the general weakness of the Labour Law standards, and an increase of the impact of large corporations on the international sphere, it is the ethical standard of employment that seems to have an increasingly important impact on the situation of the workers.
In another fragment, the author specifically refers to the most important rights of employees. Therefore, he draws attention to the principle of equal pay for equal work, the need for equal treatment of men and women and the prohibition of discrimination on racial factors or religious beliefs. Particularly important, however, can be the analysis of the problems in employment, especially popular in recent years. The author includes among them, the problems of sexual harassment in the workplace, discrimination based on sexual orientation, age or any disability. He also draws attention to the practice of discrimination against persons with HIV or AIDS. The above-mentioned problems, often underestimated in the literature, now play increasingly important role in the national employment legislation. A shortcoming, however, seems the lack of the broad reference to a growing problem of mobbing in the workplace. This phenomenon is difficult to describe in legal terms, it is in fact more frequently occurring problem, rather than classically understood form of discrimination in employment.
In the most extensive and longest fragment, the author examines regional traditions, circumstances and applicable standards of Labour Law in various parts of the world. In the section devoted to the European Union, the conditions for the development of transnational Labour Law and the impact of EU institutions on labour relations in the various Member States have been subjected to analysis. The discussion of Labour Law standards in the former Eastern bloc, proved to be important as well. The transformation of political and economic system has not been held without significant changes in the area of Labour Law. The transition from a centrally planned economy and full employment to the free market and the labour sector was a sine qua non condition for their integration with European structures. This process, however, did not take place without significant social disruption. As he puts it, all the former socialist countries, apart from Poland, Bulgaria and Ukraine have now introduced the new Labour Codes and changed the applicable standards in this field.
The next chapter discusses the passage of Labour Law changes taking place in the Latin American countries. As the author puts it, Labour Law in Latin American countries is characterized by a high degree of diversification, reaching the colonial era tradition of bureaucracy and a strong dependence on shaping the ideology of the political space of the region. The author points out, however a great potential for economic integration, rooted in the region of Latin America (which reflects the activity of multilateral free trade agreements: NAFTA, MERCOSUR and DR-CAFTA), and the development of standards of Labour Law. The author characterizes the situation of extremely diversified Asian countries in the field of Labour Law. The object of detailed analysis is industrial relations in Australia and the Labour Law reform in New Zealand, performed in the early nineties. Finally, the author draws attention to the transformation taking place in Japan, the South-East Asia and South Africa in the recent years.
It is worth noting, that in conclusion, the reviewed work seems to be a particularly important and creative contribution to the development of international and comparative Labour Law, at least for several reasons.
First, it combines the perspective of public international law with a thorough analysis of the solutions adopted in national legislation of each country. Therefore it does not repeat the obvious aspects of the development of Labour Law but concentrates on its development, challenges and changes dictated by it. The whole argument is very logical and coherent. Clarity of the text is supported by the listed case studies, containing references to specific passages in the work.
Secondly, attention should be drawn to the extremely valuable description of changes in Labour Laws of individual states. The look at the evolution of current standards of Labour Law in the less-known regions for European and American researchers is also of great importance. An important advantage of the work is also a rejection of Eurocentric perspective, typical for many researchers. The author treats the right to work as a process of constant change and also provides us with a very extensive factual material for their analysis and understanding.
Third undoubted advantage of the book is constituted by a broad reference to the social dimension of work. The author draws attention to the fact of appearance of new threats and forms of discrimination against employees - such as discrimination based on sexual orientation, or diseases such as AIDS and the rights enjoyed by employees. All of this undoubtedly interesting and valuable cognitive work is completed by the list of issues and the current list of Labour Law regulations adopted in different countries. [Recibida el 29 de octubre de 2010].
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