Rights at work, implementation and critical legal positivism

The danish implementation approach The implementation approach to individual rights norms in the work place   ! Agree-ment   §

Collective bargaining in Denmark Agr. Workers’ Organisation Employers’ Association Worker Employer

Non-national norms The role of legislators Early approach: - Denmark reluctant to ratify international instruments aiming at labour market - when ratifying, a minimum legislation approach 1993 (EU): Minimum implementation of EU-norms in order to not disturb the national collective bargaining model - applying to labour market and labour relations, any norm 1996-99: Implementation procedure established, including assessment period for a tripartie implementation council

Non-national norms The role of courts In commercial cases: Pragmatic approach Very brief reasonings (if any) ‘specific circumstances’ ‘the interest of the labour market’ International law arguments before national courts Traditional dualistic approach: Only when implemented by law EU-law arguments before the national courts: Hesitant approach ,honoring the parliament agreement of 1993 E.g. recent age discrimination case Ajos, disability cases Ring and Schoubo Werge. E.g. invented a margin for implementation after Pereda case in 2009.

Examples – non-national individual rights norms Disability: C-335/11 and C-337/11 Ring and Skouboe Werge. Denmark in conflict with the EU Employment Directive and the UN Disability Convention on the issue of disability protection at the work place. Race: Denmark was until 1996 in breach of obligations in ILO 111 and the UN Convention on Elimination of all Forms of Racial Discrimination, by not passing legislation to protect against racial and ethnic discrimination in private employment.

Examples – non-national individual rights norms Gender: Denmark has ratified ILO 100 from 1951, but not legislated. Has no legal implications. Danish Trade Unions opposed EC gender equality and equal pay from the start E.g. C-143/83 Commission v Denmark, Denmark failed to implement the Equal Pay Directive of 1975 correctly, by changing the wording. Age: Obligatory retirement ages, adjustments to collective agreements Case of Ole Andersen of 2010, case of Ajos of 2016/17

Examples – non-national individual rights norms Freedom of association: - ILO 87 and ILO 87 ratified in 1951 and 1954. - No legislation ensued - Regular criticisms from the ILO Committee on Freedom of Association ECHR in 1953. - Implemented by Statutory Regulation in 1992. - Negative freedom of association and closed-shop agreements: Sorensen and Rasmussen of 2006.

Examples – non-national individual rights norms Discrimination: Pursuant to Denmark ratifying the ILO Discrimination Convention 111 the government stated that, the existing legislation was in harmony with the international agreements. - No legislation was passed

Underlying assumptions All norms are equally suitable for implementation by collective bargaining. individual fundamental rights receive low priority by the collective parties. It is an either-or choice. Norms originating outside of Denmark are inherently hostile and will create burdens on Danish companies

Theory – critical legal positivism Surface level of the law Tuoris model for styr på principper The legal culture The deep structure of the law

Theory – applied in project Norm Rule Content Legal culture (social partners) Values Values

Legal culture correspondance The collective partners Collectivity Solidarity Negotiationbased Freedom of contract Distribution of power Employer and employee at plant level Subordination Managerial powers limited by law, contract, agreement, legal principles. Individual rights Individuality Rightsbased Fundamental State as guarantor Conflict of values Conflict of interests

Conclusions - Theory applied Poor correspondance between the content and values of the individual norm compared to the content and the values of the implementing vehicle, results in regulation, with a low level of correspondance with the intended international norm when applied in everyday commercial relationship between employer and employee. Not all norms are equally suitable to implementation by collective agreement and supplementing minimum legislation.

Regulatory considerations Aiming for better alignment with values of the norm and the values of the legal actor/implementation method Choosing implementation method according to characteristics of the norm to be implemented. A set of criteria can be developed as guidelines for choosing Establishing clear demarcation lines could in turn strengthens the collective bargaining model as well as individual rights in the work place

Regulatory considerations – norms more suitable for legislation Norms of an inherent individual character Protection from less favourable treatment on grounds of personal characteristics Norms with individual considerations of a personal character at stake Like e.g. Health and safety at work Norms reflecting broader societal values E.g. how do we treat minority groups in society, including access to employment Norms conflicting with the (business) interests of the social partners E.g. Negative freedom of association E.g. Access to court and issues of representation

Bemærkninger til presentaiton: Virginia mantouvalou : human rights, fundamental rights, are of labour law