Post by bescheid on Jul 19, 2007 19:37:23 GMT -7
Possibly a subject one would pay little attention of, unless, your employer/firm finds it neccesary to do business in another state {country} and you find your self in the situation of being relocated {if you desire your work} to another country.
What of the labour laws of your new host country? What are your rights as a re-located emplyee? The hours you must work/conditions/in some cases, your required clothing whilst on the job? Who sets these laws and enforces them? Must you now join a union?
Theses are situations that are coming to light with the EU member states and cross boarder labour.
In Germany, the unions for the most part, set the wages for the work. There is no minimum wage law, as this also is set by the Unions.
A recent European Court decision was decided in favour of a long standing German labour law that was filed in court as a complaint.
As follows:
{Sorce:DE-NEWS@LISTSERV.DFN.DE}
The European Court of justice has largely rejected the EU Commision's complaint against the German Law reguarding employee transfers. The judges found it acceptable that foreign firms who send their employees to work in Germany, must stand ready to supply pay records and time sheets in the German Language. In addition, firms must make contributions to the German Holiday pay fund on behalf of transfered employees.
www.eurofound.europa.eu/eiro/2007/05/articles/eu0705049i.html
Following is eironline copy----{motto is: Better work, Better life}
Eurofound > EIROnline > 2007 > 05 > Safeguarding employee rights in cross-border transfers of undertakings Safeguarding employee rights in cross-border transfers of undertakingsIn May 2007, the European Commission published a study on the application of the acquired rights directive (ARD) to cross-border transfers of undertakings. Arising from this report, which was prepared by a group of law firms, the ARD is likely to be amended to make it clear that it does apply to international business transfers within the EU. Currently, Member States have varying levels of protection for workers.
The impact of cross-border transfers of undertakings or businesses on employment rights has been a concern of the European Trade Union Confederation (ETUC). Therefore, in a resolution on free movement adopted in December 2005, ETUC called for an EU-wide supportive legal framework for cross-border mobility of workers. The Confederation of European Business (BusinessEurope) favours policies that assist in the cross-border provision of services as a way of creating jobs (Press release, 13 June 2007).
A recent report by CMS Legal Services, an alliance of major European law firms, has identified issues specific to cross-border transfers that are not covered by Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. This directive is known as the acquired rights directive (ARD). The gaps which CMS has identified affect the potential for cross-border movements in situations where worker protection would be compromised. The CMS Study on the application of Directive 2001/23/EC to cross-border transfers of undertakings (12Mb PDF), which was published by the European Commission on 1 May 2007, draws on the legislative systems of nine Member States – Austria, Belgium, France, Germany, Hungary, Italy, the Netherlands, Spain and the UK.
The research notes that the ARD covers cross-border transfers, as well as transfers within a Member State. However, the wide discretion available to Member States in implementing the ARD means that some Member States do not offer appropriate solutions in cases where, as a consequence of a transfer, work moves either from one Member State to another or from a Member State to a country outside the EU.
Defining a transfer
Member States’ laws have different definitions of an economic entity, particularly in cases of a labour intensive business. The report suggests that different understandings of a business transfer will lead to a ‘possible conflict in a cross-border situation’. Problems will principally arise in relation to the determination of the governing law and the competent jurisdiction to hear the conflict cases, and this will regularly occur if a foreign company takes over a national undertaking or business.
Safeguarding employee rights
Employee rights within the ARD are dependent on the applicable national law and this gives scope for the selection of national laws that are most favourable to the transferor or transferee. For example, some Member States provide more limited rights in relation to dismissal in breach of the principles of the directive than do others. Moreover, the provisions in the ARD regarding the safeguarding of individual employee rights can lead to discrepancies in the application of the relevant transfer law, as the ‘term of an employment contract or employment relationship might differ in each Member State’.
The report considers that, as the ‘standard of employee protection differs within the Member States of the EU, the question arises whether the safeguarding of employee rights, which is the primary objective of the directive, also includes statutory rights of the employees’. It identifies other differences, for example, rights to modify contractual terms following a transfer and in relation to severance payments.
Collective bargaining agreements and information rights
The research highlights that there are multiple understandings of the term ‘collective bargaining agreements’, with differing effects on employment relationships. Practical and legal problems also arise since Member States ‘have established various differing and complex regulations on how and to what extent collective bargaining agreements have to be preserved after a transfer of business’. Similarly, in relation to information and consultation, Member States promote different procedures that in some cases lead to delay or invalidity of the transfer and may also provide for different levels of rights for employee representative bodies.
Amending the ARD
The authors of the study argue that there is a need to establish a regime of uniform application of EU law to cross-border transfers and that the impact of such transfers should be reconsidered in cases of relocation of businesses abroad. It concludes that commercial practices globally will lead to an increasing volume of transfers with an international dimension and notes that, from a judicial point of view, there is ‘special need to clarify the directive with regard to situations where there might be a conflict between the laws of different Member States’.
Recent European judgements on cross-border cases
The social partners have not formally commented on the report although clearly the issue of cross-border working is now high on the agenda, particularly in light of the judgements in the Viking and Laval cases at the European Court of Justice (ECJ) on 23 May 2007. In the latter case, the Latvian construction company Laval and Partners had sent workers to building sites in Sweden. When the company refused to abide by Swedish labour legislation, the Swedish labour court referred the case to the ECJ (SE0706029I, LV0501101F). The case pertaining to the shipping company Viking Line concerned the company’s plans to reflag one of its Finnish vessels in Estonia, to which the Finnish Seamen’s Union objected (EU0605029I).
Charles
What of the labour laws of your new host country? What are your rights as a re-located emplyee? The hours you must work/conditions/in some cases, your required clothing whilst on the job? Who sets these laws and enforces them? Must you now join a union?
Theses are situations that are coming to light with the EU member states and cross boarder labour.
In Germany, the unions for the most part, set the wages for the work. There is no minimum wage law, as this also is set by the Unions.
A recent European Court decision was decided in favour of a long standing German labour law that was filed in court as a complaint.
As follows:
{Sorce:DE-NEWS@LISTSERV.DFN.DE}
The European Court of justice has largely rejected the EU Commision's complaint against the German Law reguarding employee transfers. The judges found it acceptable that foreign firms who send their employees to work in Germany, must stand ready to supply pay records and time sheets in the German Language. In addition, firms must make contributions to the German Holiday pay fund on behalf of transfered employees.
www.eurofound.europa.eu/eiro/2007/05/articles/eu0705049i.html
Following is eironline copy----{motto is: Better work, Better life}
Eurofound > EIROnline > 2007 > 05 > Safeguarding employee rights in cross-border transfers of undertakings Safeguarding employee rights in cross-border transfers of undertakingsIn May 2007, the European Commission published a study on the application of the acquired rights directive (ARD) to cross-border transfers of undertakings. Arising from this report, which was prepared by a group of law firms, the ARD is likely to be amended to make it clear that it does apply to international business transfers within the EU. Currently, Member States have varying levels of protection for workers.
The impact of cross-border transfers of undertakings or businesses on employment rights has been a concern of the European Trade Union Confederation (ETUC). Therefore, in a resolution on free movement adopted in December 2005, ETUC called for an EU-wide supportive legal framework for cross-border mobility of workers. The Confederation of European Business (BusinessEurope) favours policies that assist in the cross-border provision of services as a way of creating jobs (Press release, 13 June 2007).
A recent report by CMS Legal Services, an alliance of major European law firms, has identified issues specific to cross-border transfers that are not covered by Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. This directive is known as the acquired rights directive (ARD). The gaps which CMS has identified affect the potential for cross-border movements in situations where worker protection would be compromised. The CMS Study on the application of Directive 2001/23/EC to cross-border transfers of undertakings (12Mb PDF), which was published by the European Commission on 1 May 2007, draws on the legislative systems of nine Member States – Austria, Belgium, France, Germany, Hungary, Italy, the Netherlands, Spain and the UK.
The research notes that the ARD covers cross-border transfers, as well as transfers within a Member State. However, the wide discretion available to Member States in implementing the ARD means that some Member States do not offer appropriate solutions in cases where, as a consequence of a transfer, work moves either from one Member State to another or from a Member State to a country outside the EU.
Defining a transfer
Member States’ laws have different definitions of an economic entity, particularly in cases of a labour intensive business. The report suggests that different understandings of a business transfer will lead to a ‘possible conflict in a cross-border situation’. Problems will principally arise in relation to the determination of the governing law and the competent jurisdiction to hear the conflict cases, and this will regularly occur if a foreign company takes over a national undertaking or business.
Safeguarding employee rights
Employee rights within the ARD are dependent on the applicable national law and this gives scope for the selection of national laws that are most favourable to the transferor or transferee. For example, some Member States provide more limited rights in relation to dismissal in breach of the principles of the directive than do others. Moreover, the provisions in the ARD regarding the safeguarding of individual employee rights can lead to discrepancies in the application of the relevant transfer law, as the ‘term of an employment contract or employment relationship might differ in each Member State’.
The report considers that, as the ‘standard of employee protection differs within the Member States of the EU, the question arises whether the safeguarding of employee rights, which is the primary objective of the directive, also includes statutory rights of the employees’. It identifies other differences, for example, rights to modify contractual terms following a transfer and in relation to severance payments.
Collective bargaining agreements and information rights
The research highlights that there are multiple understandings of the term ‘collective bargaining agreements’, with differing effects on employment relationships. Practical and legal problems also arise since Member States ‘have established various differing and complex regulations on how and to what extent collective bargaining agreements have to be preserved after a transfer of business’. Similarly, in relation to information and consultation, Member States promote different procedures that in some cases lead to delay or invalidity of the transfer and may also provide for different levels of rights for employee representative bodies.
Amending the ARD
The authors of the study argue that there is a need to establish a regime of uniform application of EU law to cross-border transfers and that the impact of such transfers should be reconsidered in cases of relocation of businesses abroad. It concludes that commercial practices globally will lead to an increasing volume of transfers with an international dimension and notes that, from a judicial point of view, there is ‘special need to clarify the directive with regard to situations where there might be a conflict between the laws of different Member States’.
Recent European judgements on cross-border cases
The social partners have not formally commented on the report although clearly the issue of cross-border working is now high on the agenda, particularly in light of the judgements in the Viking and Laval cases at the European Court of Justice (ECJ) on 23 May 2007. In the latter case, the Latvian construction company Laval and Partners had sent workers to building sites in Sweden. When the company refused to abide by Swedish labour legislation, the Swedish labour court referred the case to the ECJ (SE0706029I, LV0501101F). The case pertaining to the shipping company Viking Line concerned the company’s plans to reflag one of its Finnish vessels in Estonia, to which the Finnish Seamen’s Union objected (EU0605029I).
Charles