Statutes, collective agreements and contracts of employment: a look into the hierarchy of labour law norms Professor Bernd Waas Goethe University Frankfurt

Outline I. Introduction II. Possible Sources of Law and their Relationship to each other III. Future Issues IV. The Position of EU-Labour Law V. Conclusion

I. Introduction Labour law has a number of special features compared to other areas of law Overarching purpose: providing adequate protection for the individual worker Possible rule-makers (the legislator, the social partners and the parties to the employment relationship): specific characteristics

II. Possible sources and their relationship What are the sources of law? What considerations possibly guide national legal systems in determining the relationship between them?

II.1. Possible sources of law Freedom of contract → Freedom to conclude a contract → Freedom to fix rights and duties Employment contract State´s mandate or even duty to protect Courts: → Interpreting the law → “further elaboration of the law” (Germany) State legislation

II.1. Possible sources of law Dual systems of representation: Possibility of „conflicting“ agreements „Legal dignity“ of collective agreeements Collective agreements “quasi-statutory” case law (Germany) “constitutionalisation”/“fundamentalisation” (France) Constitution

II.2. The relationship of the sources of law to each other Hierarchy of Norms → pronounced voluntarism (UK) → core competence of social partners? (Germany) → priority competence of the social partners and “framework laws” (Denmark, Sweden) A special case: „Collision“ between different collective bargaining agreements → A case for state intervention?

II.2. The relationship of the sources of law to each other Law and collective agreements only create minimum working conditions for workers But: What is „more favourable“? Principle of favourability Waiver: Extent and limits “Half-mandatory law”: statutory regulations are dispositive only in favour of collective agreements (Sweden) Opening up of collective agreements: A „double-edged sword“ (France ↔ Denmark) Opening clauses

What are the issues for the future? III.1. Sources of law What are the issues for the future?

The danger of a "hollowing out" of the employment contract III.1. Sources of law The danger of a "hollowing out" of the employment contract Employment contract A duty of the state to ensure that the system becomes more stable? Strengthening of agreements or weakening of autonomous rule-making by the social partners? Collective agreements

Relatively strong collective bargaining (Denmark, Sweden) III.1. Sources of law Relatively strong collective bargaining (Denmark, Sweden) „Cracks“ in the system (Germany) State legislation

III.2. The relationship of the sources of law to each other Constitutional laws of MS differ with regard to protection of collective bargaining Hierarchy of norms What criteria are applied when deciding whether a provision is more favourable? What set of rules are to be compared? From whose perspective is favourability to be judged? Limits to the application of this principle (Germany) Principle of favourability

III.2. The relationship of the sources of law to each other Proximity and expertise of the social partners Possibility of deviation for the “most representative” unions only (Italy)? Lessons from France (El Khomri, Macron)? Opening clauses

IV. The position of EU-law Directives lack of direct (horizontal) applicability Primacy of application of European law refers to all primary law, including unwritten law (legal principles) covers entire national law, including constitutional law However: Resistance in some MS Supreme Court (Denmark) Constitutional Court (Germany)

V. Conclusion Labour law rules based on → obligation of the state to ensure adequate protection → autonomy of the social partners → personal responsibility of employer and employee Delegation to ensure the greatest possible proximity and expertise in the area concerned Collective agreements: „Give and take“, the right to strike Imbalance between employer and employee Primacy of application of EU-law