Employment Contracts, Individual (PIL) and Employment Protection: Difference between pages

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by ''[[Wolfgang Wurmnest]]''
by ''[[Andrea Potz]]'' and ''[[Ulrich Runggaldier]]''


== 1. Subject and purpose of private international labour law ==
== 1. Definition, purpose and objective ==


The progressing internationalization of markets also affects the employment market. Many individual employment contracts therefore have cross-border elements. Employers, for example, recruit their workers abroad; others post employees to work in foreign countries. Each legal system therefore needs rules to determine which substantive labour law is to be applied to an international employment relationship. The answer to this question is given by rules of private international labour law (conflict of labour laws). This field of law is—like the rules of substantive law ([[European Labour Law|European labour law]])—increasingly subject to European influences. The Rome Convention on the Law Applicable to Contractual Obligations of 1980, a multilateral convention of public international law signed and ratified by all EU Member States, had already contained a conflict rule for individual employment contracts (Art 6 Rome Convention). After the conferment of competencies for the judicial cooperation in civil and commercial matters on the European Union in the Treaty of Amsterdam ([[Private International Law (PIL)|private international law (PIL)]], European law of civil procedure), the Union legislature has incorporated the Rome Convention into EU law by way of a regulation. The applicable law to individual employment contracts concluded after 17 December 2009 is governed by the so-called Rome I Regulation (Reg 593/2008). This regulation is binding upon all EU Member States with the exception of Denmark, thus Danish courts will continue to apply the Rome Convention.
The term ‘employment protection’ generally means all measures and activities aimed at protecting the life, health and integrity of individuals in their work environment. Legally, employment protection is qualified as a part of labour law. The legal system of employment protection embodies provisions of private law and public law. Public law rules are mainly characterized by binding obligations of the employer in favour of the workers that are normally supervised by bodies of public authorities. Employment protection provisions in private law focus on the responsibility of the employers with regard to risk prevention and risk assessment as an expression of their fiduciary duty.  


The second Union instrument dealing with the applicable law to certain employment disputes is the Rome II Regulation (Reg 864/2007) which entered into force on 11 January 2009. It applies to non-contractual obligations arising out of disputes in civil and commercial matters and contains a provision referring to cross-border industrial actions. According to Art 9 Rome II, the law applicable in respect of the liability of a person in the capacity of a worker or an employer or the organizations representing their professional interests for damages caused by an industrial action shall be the law of the country where the action is to be, or has been, taken. This rule is based on the consideration that the applicable law to the industrial action, ie the law according to which the lawfulness of a particular industrial action is determined, depends on the locus where the industrial action is carried out, since the law of industrial action is not harmonized Europe-wide. In order to prevent an industrial action which is legal according to the law of the country where the action takes place leading to liability under foreign law, Art 9 Rome II prescribes a synchronization of the law applicable to industrial action and the claims which can result from industrial action such as strike action or lock-out.
The (national) legal field of employment protection is traditionally divided into two parts—technical and social. Technical employment protection (Occupational Health and Safety, OHS) concerns a broad spectrum of issues that differ in their intensity of regulation. Technical employment protection in the narrower sense covers all provisions that have an impact on what is going on in the undertaking or establishment. Examples are measures and precautions that have to be taken by employers and employees at work (use of work equipment and machines, exposure to hazardous agents, etc); the organization of work places (eg work with display screens); medical and technical preventive and control measures (eg occupational health physicians); and, finally, employers’ and employees’ rights and obligations concerning instructions and information about employment protection. Provisions on the production and marketing of products and agents also lead to an indirect technical employment protection (eg signs and packaging). On the other hand, working time law ([[Working Time|working time]]) and provisions for specific groups of workers who are regarded as being particularly in need of protection are counted among the social employment protections. Examples for such specific groups of workers are pregnant women, mothers, children and young people, as well as employees with disabilities.


Beyond the scope of Rome I and II, the applicability of a given labour law is determined according to the autonomous (national) conflict rules of the court seized. This is, for example, the case for the determination of the international scope of statutes governing industrial relations within a company as long as these relations cannot be considered as a contractual relation falling under Arts 3, 4 Rome I.
The prime objective of employment protection is the protection of the health and safety of workers and third parties, which is why the evaluation and the assessment of risks play an important role in employment protection law. As a result of this preventive effect, employment protection has an indirect impact on the results of occupational accidents and illnesses. Apart from the personal involvement of workers, the financial burden of workers as well as the national system of social security should be mentioned. Furthermore, employment protection safeguards the preservation of cultural traditions as well as the religious beliefs of workers and the organization of the work environment. Finally, the harmonization of employment protection in the European Union is intended to prevent damaging competition between the Member States as a result of the differences in the national legal systems which can lead to conflicts to the detriment of workers.  


Besides the harmonization of conflict rules, Union law has also harmonized certain mandatory rules of substantive labour law. Thus, the directive concerning the posting of workers (Dir 98/71) sets out that an employee who temporarily performs work in another Member State cannot be denied particular minimum standards of employment protection (as laid down by law or certain collective agreements) in the legal order of the place where he performs the work ([[Posting of Workers|posting of workers]]). Further, the provisions of national law have to comply with the [[Fundamental Freedoms (General Principles)|fundamental freedoms (general principles)]] and the general prohibition of discrimination ([[Discrimination (General)|discrimination (general)]]) of the TFEU/EC Treaty.
== 2. Tendencies in the legal development  ==


Subsequently, selected features of the conflict regime relating to individual labour contracts will be described in more detail as this part of the harmonized conflict law is most important in practice. The relevant conflict rule of Rome I is based on the model of the Rome Convention, which on the whole has proven to be an appropriate and useful rule.
Employment protection is the oldest part of modern labour law. The development of modern employment protection law started in the 19th century and was influenced by growing industrialization and the combined risks to the lives and health of workers. The first legal steps in the field of occupational health and safety were taken in public law and concerned matters such as the limitation of working time, restrictions on child labour and women’s employment—measures which were completed by implementing national systems of social security in the second half of the 19th century.  


== 2. Choice of law and favourability principle ==
At the same time, employment protection only played a secondary role in the founding treaties of the EU. Despite the fact that the Union regarded employment protection as one of its tasks, the Member States were not able to come to an agreement about transferring power to the Union in this legal field. The protection of health as well as the prevention of accidents at work and occupational illnesses were mentioned in former Art 118 EC, but the Commission’s activity was limited to investigations, opinions and the preparation of consultations concerning this legal field. The problem of missing legislative competence ([[Legislative Competence of the EU|legislative competence of the EU]]) was compensated by former Art 100 EC (Art 115 TFEU/94 EC), which lays down the competence for legal approximations with a view to the establishment of the Common Market. This Article was basis for a number of [[Directive|directives]], mostly concerning hazardous and noxious substances. Initially, the technological field as well as employment protection at the company level were neglected but came into focus with the introduction of former Art 100 EC (Art 115 TFEU/94 EC) by the Single European Act (SEA).


As a general principle, the parties to an individual employment contract may choose the law applicable ([[Choice of Law by the Parties|choice of law by the parties]]) to their contractual relationship (Arts 3, 6(1) Rome Convention/Arts 3, 8(1) Rome I). The possibility of choosing the law that shall govern the contract allows the parties to reach an appropriate solution for their employment relationship which rigid connecting factors cannot always guarantee. The parties are entitled to choose the law of any country, even if the country of the law chosen does not have any connection with the employment relationship. The principle of private autonomy is therefore more strongly implemented in EU law than in some national legal systems. For example, the Swiss Act on Private International Law of 1987 (''Loi fédéral Suisse sur le droit international privé ''(Loi de d.i.p.)) entitles the parties only to choose the law of the country in which the employee has his habitual residence or in which the employer has his place of business, his domicile or his habitual residence (Art 121(3) Loi de d.i.p.). Under European law, as in most national legal systems, the parties can choose the applicable law expressly or implicitly. The national courts so far have been rather generous in assuming an implied choice of law under the Rome Convention. By far the most important evidence for such a choice of law in a contract of employment is the reference to legal provisions of a particular national legal order. It remains to be seen whether this trend will be continued by the ECJ under Rome I.
The SEA also introduced Art 118a (Art 153 TFEU/137 EC), which is now the normative foundation for EU acts concerning employment protection. The main objective was improving the working environment to guarantee a better level of protection of the safety and health of workers. The Scandinavian concept of working environment acts, which is also reflected in the ILO-Convention 155 about Occupational Safety and Health, was taken as the model for the EU rules. This was also the keystone for the establishment of a Social Union. Former Art 118a EC (Art 153 TEU/137 EC) was legal basis for a bundle of directives. The first extensive directive in the field of occupational health and safety was the Framework Directive (Dir 89/391) on the introduction of measures to encourage improvements in the safety and health of workers at work, which is the legal foundation for a number of individual directives.


The right of the parties to choose the law that shall govern their contractual relationship is not absolute. To protect the employee as the potentially weaker contractual party, Art 6(1) Rome Convention/Art 8(1) Rome I states that a choice of law made by the parties shall not have ‘the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable’. This so-called favourability principle ensures that the employee will always benefit from a certain minimum standard which cannot be derogated from to his detriment by a choice of law. It is rooted in the fear that an employer would often succeed in pushing through a legal order favourable to his needs, for example by means of standard form contract clauses ([[Standard Contract Terms|standard contract terms]]). As the prohibition of a choice of law for employment contracts would be too rigid, the legislatures of the Rome Convention and Rome I opted for the favourability principle to avoid abuses. This principle may lead to a ‘law mix’. In principle, the chosen law applies. With regard to the rules that cannot be derogated from by agreement, however, it has to be examined whether the law ascertained according to Art 6(2) Rome Convention/Art 8(2)-(4) Rome I contains rules which are more favourable to the employee. If this is the case, the more favourable rules of the objectively applicable law apply and not the rules of the chosen law. The comparison and the application of a ‘law mix’ is often a very burdensome task. However, cases with a ‘targeted’ choice of law, imposed upon the employee by the employer to offer minimal protection, have demonstrated no practical importance thus far. Rather, the parties of a contract of employment with a cross-border element regularly use their freedom to choose the applicable law to weed out possible ambiguities with regard to the applicable law and often opt for the law which would be applicable without a choice of law. This relieves judges in many cases of having to compare the chosen law and the law applicable without such a choice in order to carry out the favourability principle.
In 1991, the Social Policy Agreement (SPA), which laid down social-political objectives in line with the Community Charter of the Fundamental Social Rights of Workers 1989, was signed by all Member States except the United Kingdom. This agreement was annexed to the Social Policy Protocol, the mechanism by which the United Kingdom allowed the other Member States to advance on the Social Policy front without taking part itself. After its ratification by the United Kingdom, the SPA was then incorporated into the Social Chapter of the EC Treaty through the Treaty of Amsterdam of 1997. The basis for legal Union acts is now Arts 151 ff TFEU/136 ff EC, which entitles the Council to propose drafts for the improvement of the working environment to protect workers’ health and safety. Finally the Charter of Fundamental Rights of 2000 has to be mentioned as it contains a number of workers’ rights as well.


== 3. Applicable law in absence of a choice of law by the parties ==
The successive establishment of administrative structures played an important role in the development of employment protection. In 1957 the Safety and Health Commission for the Mining and Other Extractive Industries was first set up, whose oversight was extended to all extractive industries. The next step was the establishment of the Advisory Committee on Safety, Hygiene and Health Protection at Work, which played an important part in regard to the release of directives. At the same time, the Commission gave relevant impetus through its action programmes. The Commission is now supported by the Advisory Committee on Safety and Health at Work. The Committee cooperates with the other Committees involved in safety and health at work, including, inter alia, the Senior Labour Inspectors Committee and the Scientific Committee for Occupational Exposure Limits to Chemical Agents.


=== a) Basic structure ===
In 1994, the European Agency for Safety and Health at Work was established with headquarters in Bilbao. The Agency’s role is to collect, analyse and spread information on health and safety at work. These activities are intended to promote the protection of health at work and to support the safe and productive organization of work places. Furthermore, the European Foundation for the Improvement of Living and Working was set up in Dublin. The main task of the Foundation is to provide information, advice and expertise on living and working conditions, industrial relations and managing change in Europe for key actors in the field of EU social policy on the basis of comparative information, research and analysis.


The law to be applied in the absence of a choice by the contractual parties (the so-called objectively applicable law) is determined by the basic rules set forth in Art 6(2) Rome Convention/Art 8(2)-(4) Rome I: if the employee habitually carries out his work in one country, the applicable law will be the law of the country in which the work in performance of the contract is habitually carried out (''lex loci laboris''), even when the employee is temporarily (ie not permanently) employed in another country (Art 6(2) Rome Convention/Art 8(2) Rome I). If the employee, however, does not habitually carry out his work in any one country, the law of the country in which the place of business through which he was engaged is situated is applicable (Art 6(2) Rome Convention/Art 8(3) Rome I). Thus, the connecting factor for employment contracts with no habitual place of work in one country is the place of the engaging business. Both connecting factors can exceptionally be set aside according to the escape clause enshrined in Art 6(2) ''in fine ''Rome Convention/Art 8(4) Rome I. If it appears from the circumstances that the contract of employment is more closely connected to another country, the contract is governed by the law of that country.
Health and safety at work is now one of the most important and most highly developed aspects of EU policy on employment and social affairs and thus has a great impact on national labour law because of the large body of Union laws. The Union policy has followed a strategic path and since 1987 has been continuously extended. The strategy is basically characterized by a system of general principles regarding employment protection laid down in a framework directive and a bundle of individual directives containing minimum requirements for special hazards. These individual directives are complemented by directives concerning social employment protection.  


This structure of rules offers a clear delimitation for the vast majority of cases. As a first step, it has to be determined whether the employee habitually performs his work in any one state or whether he constantly works in different countries. As a second step, it has to be considered with a view to the circumstances of the contract at hand if the law of the country that would apply according to the two basic rules should exceptionally not be applied since there is a closer connection to another legal order. Under the Rome Convention, the courts have taken into account a number of different factors when applying the escape clause, such as the location where the contract has been concluded, the language in which the contract was drafted or the currency for payment. In the past, an emphasis was also put on the common nationality of the contractual parties. In the course of an ever-increasing reduction of the principle of nationality in international contract law, the significance of this criterion has become very questionable. However, there is still a tendency by national courts to use the escape clause where the employer and employee have a common nationality and furthermore have their domicile in that same country.
One of the main challenges for the legislature is heeding not only the social and demographic changes but technological ones as well. These changes and the related need of adoption and development are the reasons why employment protection is a rather dynamic legal field. The dynamic aspect is also reflected in the jurisprudence of the [[European Court of Justice (ECJ)]], which plays a major role concerning the control of the implementation of directives in the Member States. Moreover, the ECJ sets important impulses for the legal development in cases of preliminary ruling, eg [[Working Time|working time]] law.


=== b) Habitual place of work ===
== 3. Strategies in Union law  ==


The place were the employee habitually carries out his work in performance of his contract has no precise legal definition in Union law. To shape this legal concept, it is however possible—at least to some extent—to make recourse to the jurisprudence of the ECJ on the jurisdiction rules for employment disputes laid down in the Brussels I Regulation ([[European Civil Procedure|European civil procedure]]). In the ''Mulox ''case'' ''(ECJ Case C-125/92 – ''Mulox IBC Ltd v Geels'' [1993] ECR I-4075) the ECJ defined the habitual place of work as that place ‘where or from which the employee principally discharges his obligations towards his employer’. Thus, it has to be considered in a holistic view if the centre of the employee’s working activities can be established as being in a single country (ECJ Case 29/10 – ''Koelzsch v Luxembourg'' nyr para. 48). The ECJ has considered this to be the case for an employed sales agent who spent two-thirds of his working time in a state in which he had an office where he organized his activities abroad even though he travelled during the rest of his working time through different countries (ECJ Case C-383/95 – ''Rutten v Cross Medical Ltd ''[1997] ECR I-57). In order to legally prescribe the synchronization between ''forum ''and ''ius'', the Union legislature has attempted to codify this legislation in Rome I. Whereas Art 6 Rome Convention merely stated that the law of the country ‘in which’ the employee has his usual place of work is applicable, Art 8(2) Rome I lays down that the law of the country is applicable ‘in which or, failing that, from which the employee habitually carries out his work in performance of the contract’.
In Union law, different strategies can be identified in the field of employment protection. As far as the content is concerned two regulation methods can be seen: on the one hand the Union law contains provisions on technical aspects of occupational health and safety, on the other hand the Union law provides rules on the protection of the working environment of workers. This difference is important in regard to the legal basis found in the TFEU, which leads to different types of directives.


When converting the Rome Convention into a Community instrument the Union legislature, however, refrained from specifying clear-cut rules for particular important international employment relationships, such as contracts of seamen sailing on international routes. This reluctance hampers legal certainty as under the Rome Convention it was disputed which law applies to such contracts. In many Member States, the prevailing view is that such employment relationships have to be subjected to the law of the flag. This connecting factor is based on the assumption of a special and exclusive relationship between the ship and the flag state pursuant to international law, so that for the purposes of private international law it can be said that such sailors habitually carry out their work ‘in the country’ whose flag the ship flies. Against this specification of the ''lex locus laboris'', it is however argued that it creates incentives for employers to fly a flag of convenience to ensure that an employment law unfavourable to the seamen applies. Other Member States have therefore subjected the employment contracts of international seamen to the law of the place of business through which the employee was engaged. This connecting factor, however, is also not unproblematic. In international shipping, seamen are often employed by so-called manning or crewing companies, which may have their registered offices in countries with low employment protection standards. Consequently, both solutions need to make recourse to the escape clause in those cases in which either the flag or the engaging business are the only factor pointing to the law of one country.  
Most of the legal provisions concerning employment protection are laid down in directives ([[Directive|directive]]). Additionally, other binding and non-binding Union acts exist (eg regulations and communications from the Commission).


The new Art 8(2) Rome I does not settle the dispute. Seamen in international shipping do not perform their work in the form of an activity ‘from a state’, since the ship on which they work calls at ports in different countries. At the most, seamen working on boats that intermittently leave the territorial sea of the flag state can be said to work ‘from a state’. The classification of employment contracts of seamen in international shipping will thus have to be resolved by the ECJ. Within the framework of the Brussels I Regulation the ECJ took the view that a ship’s cook, who is employed on different ships and floating installations over the continental shelf, habitually performs his work in the state which according to public international law enjoys exclusive sovereign rights over this part of the ocean (ECJ Case C-37/00 – ''Weber v Ogden ''[2002] ECR I-2032). It therefore seems likely that under the Rome I Regulation the ECJ will subject employment contracts of seamen sailing on international routes to the law of the country whose flag the ship flies. Even though flag sovereignty is not as strong as territorial sovereignty or exclusive sovereign rights over the continental shelf, the flag ties a ship, ie the work environment of the seamen, to a single state, ie the flag state.
The Framework Directive, which is basis for another 19 individual directives, is of fundamental importance for occupational health and safety. This Directive contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of these principles (Art 1(2)).


=== c) Posting of workers ===
The Directive encourages and guarantees the harmonization and the full effectiveness of minimum requirements in the Member States’ legislative systems covering safety and health at the work place. Besides measures concerning occupational accidents and diseases, the Directive also provides—within the meaning of modern occupational health and safety—rules with regard to the social organization of the working environment. Therefore the Directive’s scope of application is defined rather widely: according to Art 2, the Directive shall apply to all sectors of activity, both public and private. Certain specific public service activities such as the armed forces or the police or certain specific activities in civil protection are excluded from the scope of application when characteristics peculiar to these activities inevitably conflict with the Directive. The Directive covers all kinds of occupational risks without prejudice to existing or future national and EU provisions that are more favourable to the protection of the safety and health of workers at work.


A temporary posting of workers into another state does not lead to a change of the employee’s habitual place of work. This rule shall prevent each assignment abroad leading to a change of the applicable law. Union law, however, seems to attribute a narrow meaning to posting. This follows from recital 36 Rome I where it is stated that work carried out in another country should be regarded as temporary ‘if the employee is expected to resume working in the country of origin after carrying out his tasks abroad’. Taken literally, a temporary posting may therefore only be assumed if the employee was previously employed in his home country and the parties to the contract of employment agree that the employee should return to the country of origin. It remains to be seen whether the ECJ will follow this narrow view as there are situations in which a posting should also be regarded as temporary even if the employee does not return to is home state. This is, for example, the case if the employee, shortly before his retirement age, is posted abroad and shall retire there.  
The Framework Directive contains a definition of worker which has to be interpreted autonomously according to the ECJ. Worker means any person employed by an employer, including trainees and apprentices but excluding domestic servants. Employer on the other hand means any natural or legal person who has an employment relationship with the worker and has the responsibility for the undertaking and/or establishment.


There is, however, no dispute that there is no temporary posting if the employee is specifically recruited for an assignment abroad or if he should stay abroad permanently. There is also no fixed upper limit which, when exceeded, would signify that a posting is ‘final’ (so that the employee works habitually in the posted state). Whether a posting is temporary or permanent has to be determined in light of the contractual arrangement and the objective circumstances of the case.
The Directive focuses on the prevention of occupational risks and risk assessment at the level of the work establishment. Therefore the Directive lays down obligations primarily addressing the employer (Art 5). The responsibility of the employer is shown by the obligation to make provision for the necessary organization and means and is complemented by the provisions concerning the adoption of a preventive system in the undertaking or establishment. According to this framework, workers and their representatives are also involved in employment protection. Workers and/or their representatives have to receive all the necessary information concerning safety and health risks and possible measures.  


For a short-term posting abroad, such as a business trip, the existing contract of employment with the employer is usually not altered. For longer-term stays abroad in which the employee is integrated into a foreign firm, the employee, however, often enters an independent contract of employment with the foreign firm which exists in addition to the contract of the original employer, whose mutual obligations are suspended during the time of the foreign assignment. Recital 36 Rome I clarifies that the conclusion of a second contract of employment with the foreign business does not automatically preclude the finding of a posting. Thus, under such a scenario, it has to be examined in each case whether the local contract of employment is subject to the foreign law or if this legal relationship is subject to the state of posting.
Article 6 requires the employer to adjust measures to take account of changing circumstances and to aim towards improving existing situations so that the technical and social development of employment protection is guaranteed. The employer is also obliged to evaluate risks for the safety and health of workers, which must also be documented.


=== d) Employing business ===
The individual directives that have been adopted within the meaning of the Framework Directive complement and reinforce the Framework Directive. The individual directives are characterized by the setting of minimum requirements and by the principle that an existing, more favourable level of legal protection in the Member States cannot be reduced on the occasion of a new Union act. The individual directives can be classified under the following criteria: workplace (eg building site and agriculture); work equipment (eg use, signs and loads) and agents (eg chemical, physical and biological agents); specific risks (eg work with display screens); and finally specific groups of workers (eg pregnant women).


The use of the place of business through which the employee was engaged as the connecting factor shall ensure a proper connection to the law of one country in cases in which the employees perform their work habitually in different countries. This connecting factor also poses difficult questions of delimitation. Should the hiring be understood to mean the conclusion of the contract so that the place of business where the contract of employment was signed is decisive? Or does it refer to the place of business where the employee is integrated organizationally? All these questions will have to be decided by the ECJ as they were not clarified by the Union legislature when drafting Rome I.
In the field of social employment protection, different tendencies are identifiable. On the one hand directives have been released which provide specific protection for certain groups of workers. Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, which contains provisions concerning not only occupational health and safety but also rules on contract law (protection against dismissal), belongs to this group as does Directive 94/33 on the protection of young people at work, which is applicable to any person under 18 years of age having an employment contract or an employment relationship defined by the law in force in a Member State and/or governed by the law in force in a Member State. The Work Time Directive (Dir 2003/88) ([[Working Time|working time]]) on the other hand is applicable to all workers and lays down binding minimum requirements concerning working time and annual leave.


== 4. Overriding mandatory provisions ==
Finally, Dir 91/383 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship and Dir 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are counted in the field of social protection.


In all European states, modern labour law has been created with the aim of protecting employees and is therefore dominated by rules which cannot be derogated by contractual agreement. Whether such rules are also ''lois de police'' within the meaning of Art 7(2) Rome Convention/Art 9 Rome I so that they apply irrespectively of the law determined by Art 6 Rome Convention/Art 8 Rome I ([[Overriding Mandatory Provisions|overriding mandatory provisions]]) has to be determined by interpretation. As Art 9(1) Rome I makes clear, only those rules of law which are crucial for safeguarding a state’s public interests, such as its political, social or economic organization, are considered to be such overriding mandatory provisions. It is highly controversial as to which provisions of modern labour law may be classified as falling in the realm of Art 7(2) Rome Convention/Art 9 Rome I. This is due to the difficulty of determining whether a provision requires its application on account of an outstanding public interest. Should, for example, the continued remuneration in case of illness be understood as mainly protecting the employee from social destitution or does this payment, due to its close relationship to the law of health insurance, have to be attributed to the public interest of health protection?
The substantive provisions on employment protection are complemented by a complex system of legal enforcement. At the Union level, the ECJ plays an important role for the control of the implementation of directives in the Member States. At the national level, the system of legal enforcement differs according to the violation of civil or public law rules. Employees may initiate claims in case of the infringement of employment protection obligations as regards the employer or another worker. Additionally, the Member States have to establish a public control system enforced by public authorities. Up to a certain degree, the social security institutions (especially with respect to accident insurance) and the professional associations also have specific control rights.


For employees within the EU, the Union legislature has extended the field of mandatory law. The directive on the posting of workers stipulates that an employee from one Member State, who performs temporary work in another Member State, cannot be denied particular minimum working conditions (such as working time, minimum wage and entitlement to holidays) as set out by law or by collective agreements which have been declared generally applicable ([[Posting of Workers|posting of workers]]). To what extent national rules based on this directive are overriding mandatory provisions is subject to great debate.
== 4. Harmonization projects ==
 
The anticipated development of employment protection in the coming years can be characterized as follows: extending, modernizing, consolidating and simplifying the legislative framework. The Union strategy 2007–12 still refers to the continuous permanent and homogeneous reduction of occupational accidents and illnesses as the main objective. On a long-term basis, a promotion of work quality and a progressive increase of the productivity are to be sought. At the Union level, the Commission will continue the work of codifying the ‘health and safety’ directives, examining the possibilities of simplifying the legislation in order to reduce unnecessary administrative charges and promoting a coherent policy. At the national level this aim is to be reached by the improvement of preventive effectiveness of health surveillance and by actions promoting the rehabilitation and integration of workers. In the Union, but also in the Member States, these strategies are to be defined on the basis of a detailed evaluation with the active participation and consultation of all interested parties including the social partners.


==Literature==
==Literature==
Ulrich Drobnig, Jürgen Basedow and Rüdiger Wolfrum (eds), Recht der Flagge und ‘Billige Flaggen’—Neuere Entwicklungen im Internationalen Privatrecht und Völkerrecht (1990); Abbo Junker, Internationales Arbeitsrecht im Konzern (1992); Martin Taschner, Arbeitsvertragsstatut und zwingende Bestimmungen nach dem europäischen Schuldvertragsübereinkommen: Einheitliche Auslegung (2003); Ulla Liukkunen, The Role of Mandatory Rules in International Labour Law: A Comparative Study in the Conflict of Laws (2004); Karsten Müller, International zwingende Normen des deutschen Arbeitsrechts (2005); Martin Franzen, ‘Internationales Arbeitsrecht’ in Arbeitsrecht-Blattei (2006); CGJ Morse, ‘Contracts of Employment’ in Lord Collins and others (eds), Dicey, Morris and Collins on the Conflict of Laws, vol&nbsp;II (14th&nbsp;edn, 2006; 4th&nbsp;supplement, 2011) paras&nbsp;33–059&nbsp;ff; Max Planck Institute, ‘Comments on the European Commission’s Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Contractual Obliga- tions (Rome&nbsp;I)’ (2007) 71 RabelsZ 225; Peter Mankowski, ‘Employment Contracts Under Art.&nbsp;8 of the Rome&nbsp;I Regulation’ in Franco Ferrari and Stefan Leible (eds), Rome&nbsp;I Regulation: The Law Applicable to Contractual Obligations in Europe (2009) 171<nowiki>; Wolfgang Wurmnest, ‘Das neue internationale Arbeitsvertragsrecht der Rom I-Verordnung’ (2009) 1 EuZA 481.</nowiki></div>
Rolf Wank and Udo Börgmann, ''Deutsches und europäisches Arbeitsschutzrecht'' (1992); Brian Bercusson, ''European Labour Law'' (1996); Udo Börgmann, ''EAS B 6200'','' Einzelrichtlinien zur Arbeitnehmerschutzrichtlinie'' (36th&nbsp;suppl, April 1998); Rolf Wank, ''EAS B 6000'','' Technischer Arbeitsschutz in der EU im Überblick'' (36th&nbsp;suppl, April 1998); Wolfgang Balze, ''EAS B 5000'', ''Überblick zum sozialen Arbeitsschutz in der EU'' (38th&nbsp;suppl, August 1998); Wolfhard Kohte, ''EAS B 6100'','' Arbeitsschutzrahmenrichtlinie ''(38th&nbsp;suppl, August 1998); Peter Hanau, Heinz-Dietrich Steinmeyer and Rolf Wank, ''Handbuch des europäischen Arbeits- und Sozialrechts'' (2002); Maximilian Fuchs and Franz Marhold, ''Europäisches Arbeitsrecht'' (2006); Walter Nöstlinger (ed), ''Handbuch Arbeitnehmerschutz'' (2006); Roger Blanpain, ''European Labour Law'' (11th&nbsp;edn, 2008).</div>




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Latest revision as of 18:39, 5 June 2025

by Andrea Potz and Ulrich Runggaldier

1. Definition, purpose and objective

The term ‘employment protection’ generally means all measures and activities aimed at protecting the life, health and integrity of individuals in their work environment. Legally, employment protection is qualified as a part of labour law. The legal system of employment protection embodies provisions of private law and public law. Public law rules are mainly characterized by binding obligations of the employer in favour of the workers that are normally supervised by bodies of public authorities. Employment protection provisions in private law focus on the responsibility of the employers with regard to risk prevention and risk assessment as an expression of their fiduciary duty.

The (national) legal field of employment protection is traditionally divided into two parts—technical and social. Technical employment protection (Occupational Health and Safety, OHS) concerns a broad spectrum of issues that differ in their intensity of regulation. Technical employment protection in the narrower sense covers all provisions that have an impact on what is going on in the undertaking or establishment. Examples are measures and precautions that have to be taken by employers and employees at work (use of work equipment and machines, exposure to hazardous agents, etc); the organization of work places (eg work with display screens); medical and technical preventive and control measures (eg occupational health physicians); and, finally, employers’ and employees’ rights and obligations concerning instructions and information about employment protection. Provisions on the production and marketing of products and agents also lead to an indirect technical employment protection (eg signs and packaging). On the other hand, working time law (working time) and provisions for specific groups of workers who are regarded as being particularly in need of protection are counted among the social employment protections. Examples for such specific groups of workers are pregnant women, mothers, children and young people, as well as employees with disabilities.

The prime objective of employment protection is the protection of the health and safety of workers and third parties, which is why the evaluation and the assessment of risks play an important role in employment protection law. As a result of this preventive effect, employment protection has an indirect impact on the results of occupational accidents and illnesses. Apart from the personal involvement of workers, the financial burden of workers as well as the national system of social security should be mentioned. Furthermore, employment protection safeguards the preservation of cultural traditions as well as the religious beliefs of workers and the organization of the work environment. Finally, the harmonization of employment protection in the European Union is intended to prevent damaging competition between the Member States as a result of the differences in the national legal systems which can lead to conflicts to the detriment of workers.

2. Tendencies in the legal development

Employment protection is the oldest part of modern labour law. The development of modern employment protection law started in the 19th century and was influenced by growing industrialization and the combined risks to the lives and health of workers. The first legal steps in the field of occupational health and safety were taken in public law and concerned matters such as the limitation of working time, restrictions on child labour and women’s employment—measures which were completed by implementing national systems of social security in the second half of the 19th century.

At the same time, employment protection only played a secondary role in the founding treaties of the EU. Despite the fact that the Union regarded employment protection as one of its tasks, the Member States were not able to come to an agreement about transferring power to the Union in this legal field. The protection of health as well as the prevention of accidents at work and occupational illnesses were mentioned in former Art 118 EC, but the Commission’s activity was limited to investigations, opinions and the preparation of consultations concerning this legal field. The problem of missing legislative competence (legislative competence of the EU) was compensated by former Art 100 EC (Art 115 TFEU/94 EC), which lays down the competence for legal approximations with a view to the establishment of the Common Market. This Article was basis for a number of directives, mostly concerning hazardous and noxious substances. Initially, the technological field as well as employment protection at the company level were neglected but came into focus with the introduction of former Art 100 EC (Art 115 TFEU/94 EC) by the Single European Act (SEA).

The SEA also introduced Art 118a (Art 153 TFEU/137 EC), which is now the normative foundation for EU acts concerning employment protection. The main objective was improving the working environment to guarantee a better level of protection of the safety and health of workers. The Scandinavian concept of working environment acts, which is also reflected in the ILO-Convention 155 about Occupational Safety and Health, was taken as the model for the EU rules. This was also the keystone for the establishment of a Social Union. Former Art 118a EC (Art 153 TEU/137 EC) was legal basis for a bundle of directives. The first extensive directive in the field of occupational health and safety was the Framework Directive (Dir 89/391) on the introduction of measures to encourage improvements in the safety and health of workers at work, which is the legal foundation for a number of individual directives.

In 1991, the Social Policy Agreement (SPA), which laid down social-political objectives in line with the Community Charter of the Fundamental Social Rights of Workers 1989, was signed by all Member States except the United Kingdom. This agreement was annexed to the Social Policy Protocol, the mechanism by which the United Kingdom allowed the other Member States to advance on the Social Policy front without taking part itself. After its ratification by the United Kingdom, the SPA was then incorporated into the Social Chapter of the EC Treaty through the Treaty of Amsterdam of 1997. The basis for legal Union acts is now Arts 151 ff TFEU/136 ff EC, which entitles the Council to propose drafts for the improvement of the working environment to protect workers’ health and safety. Finally the Charter of Fundamental Rights of 2000 has to be mentioned as it contains a number of workers’ rights as well.

The successive establishment of administrative structures played an important role in the development of employment protection. In 1957 the Safety and Health Commission for the Mining and Other Extractive Industries was first set up, whose oversight was extended to all extractive industries. The next step was the establishment of the Advisory Committee on Safety, Hygiene and Health Protection at Work, which played an important part in regard to the release of directives. At the same time, the Commission gave relevant impetus through its action programmes. The Commission is now supported by the Advisory Committee on Safety and Health at Work. The Committee cooperates with the other Committees involved in safety and health at work, including, inter alia, the Senior Labour Inspectors Committee and the Scientific Committee for Occupational Exposure Limits to Chemical Agents.

In 1994, the European Agency for Safety and Health at Work was established with headquarters in Bilbao. The Agency’s role is to collect, analyse and spread information on health and safety at work. These activities are intended to promote the protection of health at work and to support the safe and productive organization of work places. Furthermore, the European Foundation for the Improvement of Living and Working was set up in Dublin. The main task of the Foundation is to provide information, advice and expertise on living and working conditions, industrial relations and managing change in Europe for key actors in the field of EU social policy on the basis of comparative information, research and analysis.

Health and safety at work is now one of the most important and most highly developed aspects of EU policy on employment and social affairs and thus has a great impact on national labour law because of the large body of Union laws. The Union policy has followed a strategic path and since 1987 has been continuously extended. The strategy is basically characterized by a system of general principles regarding employment protection laid down in a framework directive and a bundle of individual directives containing minimum requirements for special hazards. These individual directives are complemented by directives concerning social employment protection.

One of the main challenges for the legislature is heeding not only the social and demographic changes but technological ones as well. These changes and the related need of adoption and development are the reasons why employment protection is a rather dynamic legal field. The dynamic aspect is also reflected in the jurisprudence of the European Court of Justice (ECJ), which plays a major role concerning the control of the implementation of directives in the Member States. Moreover, the ECJ sets important impulses for the legal development in cases of preliminary ruling, eg working time law.

3. Strategies in Union law

In Union law, different strategies can be identified in the field of employment protection. As far as the content is concerned two regulation methods can be seen: on the one hand the Union law contains provisions on technical aspects of occupational health and safety, on the other hand the Union law provides rules on the protection of the working environment of workers. This difference is important in regard to the legal basis found in the TFEU, which leads to different types of directives.

Most of the legal provisions concerning employment protection are laid down in directives (directive). Additionally, other binding and non-binding Union acts exist (eg regulations and communications from the Commission).

The Framework Directive, which is basis for another 19 individual directives, is of fundamental importance for occupational health and safety. This Directive contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of these principles (Art 1(2)).

The Directive encourages and guarantees the harmonization and the full effectiveness of minimum requirements in the Member States’ legislative systems covering safety and health at the work place. Besides measures concerning occupational accidents and diseases, the Directive also provides—within the meaning of modern occupational health and safety—rules with regard to the social organization of the working environment. Therefore the Directive’s scope of application is defined rather widely: according to Art 2, the Directive shall apply to all sectors of activity, both public and private. Certain specific public service activities such as the armed forces or the police or certain specific activities in civil protection are excluded from the scope of application when characteristics peculiar to these activities inevitably conflict with the Directive. The Directive covers all kinds of occupational risks without prejudice to existing or future national and EU provisions that are more favourable to the protection of the safety and health of workers at work.

The Framework Directive contains a definition of worker which has to be interpreted autonomously according to the ECJ. Worker means any person employed by an employer, including trainees and apprentices but excluding domestic servants. Employer on the other hand means any natural or legal person who has an employment relationship with the worker and has the responsibility for the undertaking and/or establishment.

The Directive focuses on the prevention of occupational risks and risk assessment at the level of the work establishment. Therefore the Directive lays down obligations primarily addressing the employer (Art 5). The responsibility of the employer is shown by the obligation to make provision for the necessary organization and means and is complemented by the provisions concerning the adoption of a preventive system in the undertaking or establishment. According to this framework, workers and their representatives are also involved in employment protection. Workers and/or their representatives have to receive all the necessary information concerning safety and health risks and possible measures.

Article 6 requires the employer to adjust measures to take account of changing circumstances and to aim towards improving existing situations so that the technical and social development of employment protection is guaranteed. The employer is also obliged to evaluate risks for the safety and health of workers, which must also be documented.

The individual directives that have been adopted within the meaning of the Framework Directive complement and reinforce the Framework Directive. The individual directives are characterized by the setting of minimum requirements and by the principle that an existing, more favourable level of legal protection in the Member States cannot be reduced on the occasion of a new Union act. The individual directives can be classified under the following criteria: workplace (eg building site and agriculture); work equipment (eg use, signs and loads) and agents (eg chemical, physical and biological agents); specific risks (eg work with display screens); and finally specific groups of workers (eg pregnant women).

In the field of social employment protection, different tendencies are identifiable. On the one hand directives have been released which provide specific protection for certain groups of workers. Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, which contains provisions concerning not only occupational health and safety but also rules on contract law (protection against dismissal), belongs to this group as does Directive 94/33 on the protection of young people at work, which is applicable to any person under 18 years of age having an employment contract or an employment relationship defined by the law in force in a Member State and/or governed by the law in force in a Member State. The Work Time Directive (Dir 2003/88) (working time) on the other hand is applicable to all workers and lays down binding minimum requirements concerning working time and annual leave.

Finally, Dir 91/383 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship and Dir 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are counted in the field of social protection.

The substantive provisions on employment protection are complemented by a complex system of legal enforcement. At the Union level, the ECJ plays an important role for the control of the implementation of directives in the Member States. At the national level, the system of legal enforcement differs according to the violation of civil or public law rules. Employees may initiate claims in case of the infringement of employment protection obligations as regards the employer or another worker. Additionally, the Member States have to establish a public control system enforced by public authorities. Up to a certain degree, the social security institutions (especially with respect to accident insurance) and the professional associations also have specific control rights.

4. Harmonization projects

The anticipated development of employment protection in the coming years can be characterized as follows: extending, modernizing, consolidating and simplifying the legislative framework. The Union strategy 2007–12 still refers to the continuous permanent and homogeneous reduction of occupational accidents and illnesses as the main objective. On a long-term basis, a promotion of work quality and a progressive increase of the productivity are to be sought. At the Union level, the Commission will continue the work of codifying the ‘health and safety’ directives, examining the possibilities of simplifying the legislation in order to reduce unnecessary administrative charges and promoting a coherent policy. At the national level this aim is to be reached by the improvement of preventive effectiveness of health surveillance and by actions promoting the rehabilitation and integration of workers. In the Union, but also in the Member States, these strategies are to be defined on the basis of a detailed evaluation with the active participation and consultation of all interested parties including the social partners.

Literature

Rolf Wank and Udo Börgmann, Deutsches und europäisches Arbeitsschutzrecht (1992); Brian Bercusson, European Labour Law (1996); Udo Börgmann, EAS B 6200, Einzelrichtlinien zur Arbeitnehmerschutzrichtlinie (36th suppl, April 1998); Rolf Wank, EAS B 6000, Technischer Arbeitsschutz in der EU im Überblick (36th suppl, April 1998); Wolfgang Balze, EAS B 5000, Überblick zum sozialen Arbeitsschutz in der EU (38th suppl, August 1998); Wolfhard Kohte, EAS B 6100, Arbeitsschutzrahmenrichtlinie (38th suppl, August 1998); Peter Hanau, Heinz-Dietrich Steinmeyer and Rolf Wank, Handbuch des europäischen Arbeits- und Sozialrechts (2002); Maximilian Fuchs and Franz Marhold, Europäisches Arbeitsrecht (2006); Walter Nöstlinger (ed), Handbuch Arbeitnehmerschutz (2006); Roger Blanpain, European Labour Law (11th edn, 2008).

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