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

2. 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

3. 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

4. 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?

5. 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

6. 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

7. 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?

8. 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

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

10. 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

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

12. 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

13. 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

14. 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)

15. 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