The paper addresses the role of the International Labour Organization (ILO) in the consideration ... more The paper addresses the role of the International Labour Organization (ILO) in the consideration of cases and in the interpretation of international human rights instruments by the Committee on Economic, Social and Cultural Rights and the European Court of Human Rights. As labour rights form part of internationally recognized human rights the author attempts to evaluate the penetration of ILO standards and legal reasoning into the adjudication of human rights cases and interpretation of human rights instruments by other international bodies. The analysis of the jurisprudence of the CESCR and the ECtHR demonstrates that the ILO standards and the legal reasoning are always referred to in the cases related to labour rights and serve as a source of "substantial filling" of both the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights.
E-Journal of international and comparative labour studies, 2017
Purpose. The research was undertaken to estimate the perspectives of wage claims under the ECHR a... more Purpose. The research was undertaken to estimate the perspectives of wage claims under the ECHR and investigate whether the provisions of the Convention might be referred to in the claim for decent wage. Design/methodology/approach. The paper investigated the approach of the European Court of Human Rights to wage claims (non-payment, reduction or deductions from wages), considering relevant case law under the article 1 of Protocol 1(property rights) and article 3 (degrading treatment) of the ECHR. Findings. The Court perceives salary as a payment which is protected under Article 1 of the Protocol 1. Such approach entitles employees to bring claims on the lack of payment before the ECtHR, as well as claims on the reduction of wages or excessive deductions. It was also established that the ECHR contains certain prerequisites for a potential claim concerning an employee’s right to decent wage. Research limitations/implications. The paper contributes to the discussion about the impact o...
Digitalization progresses represent huge challenges to employee’s privacy at work, in particular ... more Digitalization progresses represent huge challenges to employee’s privacy at work, in particular taking into account the e-monitoring issues. Even though a number of European and International instruments provide legal framework for employee’s privacy protection at work, information and communication technologies (ICTs) used for monitoring in the workplace require the elaboration of a deeper understanding of what privacy at work is and what are the boundaries of employer’s managerial power. Work-related stress is also one of the consequences of e-monitoring. Hence, the legal challenge will be to develop a concept of the employee’s right to control the e-monitoring practises. This right can be perceived, in our opinion, as a part of prevention and protection OSH strategy. In other words, from fundamental rights bases, we will elaborate the concept of the employee’s right to control the use of ICTs in the workplace in order to prevent the risk of work-related stress arising from a con...
The history of the development of the European Convention on Human Rights represents a unique exp... more The history of the development of the European Convention on Human Rights represents a unique experience of widening the scope of protection of an international instrument from classical political and civil rights to certain social and economic rights. With a particular focus upon the protection of labour rights under the European Convention, the author researches the roots of expansion of the Convention, analyzing the process of drafting and the capabilities theory of A. Sen, and the application of Convention as a “living instrument”. The paper traces how the judgments of the European Court in social matters contribute to the development of the relevant legislation of the states and establish enforceable standards of human rights protection.
In the diversity of national approaches to the problem of protection of employees’ privacy at wor... more In the diversity of national approaches to the problem of protection of employees’ privacy at work, the jurisprudence of the European Court of Human Rights provides a priceless framework for the consideration of cases concerning employee’s privacy. Even though the term “privacy” was not used by the Strasbourg Court, its broad interpretation of the right to respect for private life significantly contributed to the protection of personal data, elaborating positive obligations of the states. The article researches how the European Convention on Human Rights is adapted to protect employees’ personal data, to restrict unauthorized video surveillance, searches, interception of telephone calls at work and takes into account the most recent case, Bărbulescu v. Romania, considered in 2016. It focuses on the Court’s approach to the lawfulness and necessity of the interference with employee’s privacy, as it has particular value for the employee’s protection on the national level in the countri...
The paper researches the problem of gender equality in employment in Russia and China. Starting w... more The paper researches the problem of gender equality in employment in Russia and China. Starting with the review of the general attitude on the role of the woman in the society in these countries (part 1) the authors proceed with the analysis of national norms and case law. They point that in spite of ratification by both countries of the main international instruments prohibiting gender discrimination in employment these norms did not fully penetrate to the legal system and to the legal culture of China and Russia. Part 2 focuses on the prohibition of employment of women in some occupations and the protection from gender discrimination in Russia. In the part 3 the relevant Chinese experience and legislation is investigated through the comparison with the Russian approach. In conclusions the main common traits of gender based discrimination in employment in both countries are formulated: even though they established anti-discrimination principles to ensure gender equality at the workplace, the lack of clarity in the definition of discrimination and the absence of a general provision on the shift of the burden of proof as well as the absence of norms protecting women who lodged a claim on discrimination against an employer from victimization. In both countries the authors evidence the lack of case law on discrimination and the difficulties in proving discrimination in the rare cases which were brought before the court. The authors also substantiate that the general attitude towards the division of roles between men and women is one of the main reasons of gender discrimination in both countries.
rights and the instrumentalization of the right to adequate minimum income benefits, Anja Eleveld... more rights and the instrumentalization of the right to adequate minimum income benefits, Anja Eleveld Abstract 1. Introduction 2. The EU policies of active Inclusion: an instrumentalist perspective on human social rights 3. The data 3.1. The selection of the countries 3.2. Some country specific remarks concerning noncontributory social assistance benefits 3.3. The questionnaire 4. The sanction indicator 5. Explaining the adoption of work-related sanctions 6. The sanction indicator compared to characteristics of national social policies 7. The adequacy of social assistance benefits 8. Conclusion Appendix 1 Appendix 2 Part II: Right to work and right to not to work 4. The right to work in neoliberal times, Vincenzo Pietrogiovanni Abstract 1. Introduction 2. The right to work: an ambiguous entitlement to reconceptualize 2.1. Different meanings and major restrictions 2.2. The lack of justiciability 3. The neoliberal version of the right to work 4. Taking the right to work seriously 5. Conclusion VIII 5. Blurred boundaries between work and leisure-A German perspective, Reinhard Singer, Stephan Klawitter and Friedrich Preetz Abstract 1. Working time and gigitalisation 1.1. The influence of technological advances on working processes 1.2. Advantages and disadvantages of temporally and locally "delimited" work 2. Constant availability and working time law 2.1. Legal status of employees in European and German working time law 2.1.1. Working time and rest periods as categories of working time law 2.1.2. Constant availability and categories of working time Law a) Is constant availability a case of on-call duty? b) Constant availability as own category between on-call duty and standby duty? c) Attribution of activities performed by employees d) Consequences, in particular with regard to rest periods 2.2. Employees' rights between flexibilisation and health protection 2.2.1. The right to unavailability as a fundamental right 2.2.2. Right to working time flexibility a) Mandatory working time law and protection from oneself b) Disproportionality of absolute limitations to private autonomy 2.3. Deliberations on necessary reforms 2.3.1. Rethinking the "rest period" 2.3.2. Specific provisions only applying to certain groups of employees 2.3.3. Flexibility based on collective agreements 3. Key findings 6. The re-configuration of working time in times of crisis: legislation and collective agreements, Tania Bazzani Abstract 1. Introduction 2. EU Law and working time a) Recent trends b) Public short-time working schemes (public STW schemes) IX 3. Working time in Italy 3.1. Collective bargaining: the chemical industrial sector 4. Some aspects of the Spanish working time regulation 5. Some aspects of the Danish working time regulation 6. The different dimension of working hours: further remarks and conclusion Part III: Institutions
In the field of regulatory instruments in the social field, the European Convention on Human Righ... more In the field of regulatory instruments in the social field, the European Convention on Human Rights (ECHR) and the related jurisprudence of the Court of European Court of Human Rights (ECtHR) deserves renewed focus. In recent years considerable debate has developed over the relationship between social rights and human rights, and the jurisprudence of the ECtHR has clearly demonstrated the growing value of human rights in the workplace. The Court explored the growing facets of the ban on forced labour and discrimination; developed the idea of employee privacy and contributed to the protection of their freedom of religion, expression and association; recognised the ‘vulnerability’ of the employee in the employment relationship and has drawn from it the principle that a restriction on hiring practices or certain dismissal practices may have a ‘chilling effect’ on the exercise of the rights provided for by the Convention. In essence, thanks to a sensitivity towards the social and labour...
International Journal of Occupational Safety and Ergonomics, 2016
This paper argues the possibility of establishing common principles of protection from psychosoci... more This paper argues the possibility of establishing common principles of protection from psychosocial risks (PSR) on the basis of the legal positions of the European Court of Human Rights (the Court) expressed in recent cases on degrading treatment and occupational health. The author focuses on the positive obligations of the States to ensure the protection of the right for life and of the right to respect for private life. The prohibition of degrading treatment in relations between private persons is also considered as relevant to the issue of the protection from PSR. Analyzing the Court's case law (judgments of the Court) we substantiate the possibility of claiming protection from PSR under the European Convention on Human Rights, namely, articles 2, 3 and 6, 8.
SENTENTIA. European Journal of Humanities and Social Sciences, 2013
The article is devoted to the history of forced labour and the realization of the duty to work in... more The article is devoted to the history of forced labour and the realization of the duty to work in Soviet Russia. Duty to work was enshrined in all the Soviet constitutions and thus became a leitmotif for the era. Three main period are emphasized: the period of Military Communism (1918-1921), the War period, including pre war and post war times (1940-1948), during the Khrushchev Thaw (1961-1965), we'll briefly speak apart about forced labour in GULAG. The author made an analysis of official documents, implementing duty to work, statistic data, researches of contemporary and Soviet scholars. This historical review of forced labour in Russia makes us conclude that obligation to work (not only a moral one but backed by criminal or administrative responsibility) was a distinguishing feature of Soviet labour law. The idea was born even before the Soviet state in the writings of K. Marx and Lenin and existed until the collapse of USSR. During these years the enforcement of the duty to work differed considerably depending on the current needs of the State, of the economic conditions.
Italian Labour Law e-Journal Issue 1, Vol. 14 (2021)
2. The concept of modern slavery and the contribution of the NGO "The Alternative" to the fight a... more 2. The concept of modern slavery and the contribution of the NGO "The Alternative" to the fight against it. 2.1. The concept of modern slavery. 2.2. Analysis of the experience of the Interregional Public Movement «The Alternative» in rescuing people. 3. Accountability for crimes related to modern slavery. 4. The ECtHR's experience in protecting victims of modern slavery. 5. Final remarks. 1. Introduction.
The paper addresses the role of the International Labour Organization (ILO) in the consideration ... more The paper addresses the role of the International Labour Organization (ILO) in the consideration of cases and in the interpretation of international human rights instruments by the Committee on Economic, Social and Cultural Rights and the European Court of Human Rights. As labour rights form part of internationally recognized human rights the author attempts to evaluate the penetration of ILO standards and legal reasoning into the adjudication of human rights cases and interpretation of human rights instruments by other international bodies. The analysis of the jurisprudence of the CESCR and the ECtHR demonstrates that the ILO standards and the legal reasoning are always referred to in the cases related to labour rights and serve as a source of "substantial filling" of both the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights.
E-Journal of international and comparative labour studies, 2017
Purpose. The research was undertaken to estimate the perspectives of wage claims under the ECHR a... more Purpose. The research was undertaken to estimate the perspectives of wage claims under the ECHR and investigate whether the provisions of the Convention might be referred to in the claim for decent wage. Design/methodology/approach. The paper investigated the approach of the European Court of Human Rights to wage claims (non-payment, reduction or deductions from wages), considering relevant case law under the article 1 of Protocol 1(property rights) and article 3 (degrading treatment) of the ECHR. Findings. The Court perceives salary as a payment which is protected under Article 1 of the Protocol 1. Such approach entitles employees to bring claims on the lack of payment before the ECtHR, as well as claims on the reduction of wages or excessive deductions. It was also established that the ECHR contains certain prerequisites for a potential claim concerning an employee’s right to decent wage. Research limitations/implications. The paper contributes to the discussion about the impact o...
Digitalization progresses represent huge challenges to employee’s privacy at work, in particular ... more Digitalization progresses represent huge challenges to employee’s privacy at work, in particular taking into account the e-monitoring issues. Even though a number of European and International instruments provide legal framework for employee’s privacy protection at work, information and communication technologies (ICTs) used for monitoring in the workplace require the elaboration of a deeper understanding of what privacy at work is and what are the boundaries of employer’s managerial power. Work-related stress is also one of the consequences of e-monitoring. Hence, the legal challenge will be to develop a concept of the employee’s right to control the e-monitoring practises. This right can be perceived, in our opinion, as a part of prevention and protection OSH strategy. In other words, from fundamental rights bases, we will elaborate the concept of the employee’s right to control the use of ICTs in the workplace in order to prevent the risk of work-related stress arising from a con...
The history of the development of the European Convention on Human Rights represents a unique exp... more The history of the development of the European Convention on Human Rights represents a unique experience of widening the scope of protection of an international instrument from classical political and civil rights to certain social and economic rights. With a particular focus upon the protection of labour rights under the European Convention, the author researches the roots of expansion of the Convention, analyzing the process of drafting and the capabilities theory of A. Sen, and the application of Convention as a “living instrument”. The paper traces how the judgments of the European Court in social matters contribute to the development of the relevant legislation of the states and establish enforceable standards of human rights protection.
In the diversity of national approaches to the problem of protection of employees’ privacy at wor... more In the diversity of national approaches to the problem of protection of employees’ privacy at work, the jurisprudence of the European Court of Human Rights provides a priceless framework for the consideration of cases concerning employee’s privacy. Even though the term “privacy” was not used by the Strasbourg Court, its broad interpretation of the right to respect for private life significantly contributed to the protection of personal data, elaborating positive obligations of the states. The article researches how the European Convention on Human Rights is adapted to protect employees’ personal data, to restrict unauthorized video surveillance, searches, interception of telephone calls at work and takes into account the most recent case, Bărbulescu v. Romania, considered in 2016. It focuses on the Court’s approach to the lawfulness and necessity of the interference with employee’s privacy, as it has particular value for the employee’s protection on the national level in the countri...
The paper researches the problem of gender equality in employment in Russia and China. Starting w... more The paper researches the problem of gender equality in employment in Russia and China. Starting with the review of the general attitude on the role of the woman in the society in these countries (part 1) the authors proceed with the analysis of national norms and case law. They point that in spite of ratification by both countries of the main international instruments prohibiting gender discrimination in employment these norms did not fully penetrate to the legal system and to the legal culture of China and Russia. Part 2 focuses on the prohibition of employment of women in some occupations and the protection from gender discrimination in Russia. In the part 3 the relevant Chinese experience and legislation is investigated through the comparison with the Russian approach. In conclusions the main common traits of gender based discrimination in employment in both countries are formulated: even though they established anti-discrimination principles to ensure gender equality at the workplace, the lack of clarity in the definition of discrimination and the absence of a general provision on the shift of the burden of proof as well as the absence of norms protecting women who lodged a claim on discrimination against an employer from victimization. In both countries the authors evidence the lack of case law on discrimination and the difficulties in proving discrimination in the rare cases which were brought before the court. The authors also substantiate that the general attitude towards the division of roles between men and women is one of the main reasons of gender discrimination in both countries.
rights and the instrumentalization of the right to adequate minimum income benefits, Anja Eleveld... more rights and the instrumentalization of the right to adequate minimum income benefits, Anja Eleveld Abstract 1. Introduction 2. The EU policies of active Inclusion: an instrumentalist perspective on human social rights 3. The data 3.1. The selection of the countries 3.2. Some country specific remarks concerning noncontributory social assistance benefits 3.3. The questionnaire 4. The sanction indicator 5. Explaining the adoption of work-related sanctions 6. The sanction indicator compared to characteristics of national social policies 7. The adequacy of social assistance benefits 8. Conclusion Appendix 1 Appendix 2 Part II: Right to work and right to not to work 4. The right to work in neoliberal times, Vincenzo Pietrogiovanni Abstract 1. Introduction 2. The right to work: an ambiguous entitlement to reconceptualize 2.1. Different meanings and major restrictions 2.2. The lack of justiciability 3. The neoliberal version of the right to work 4. Taking the right to work seriously 5. Conclusion VIII 5. Blurred boundaries between work and leisure-A German perspective, Reinhard Singer, Stephan Klawitter and Friedrich Preetz Abstract 1. Working time and gigitalisation 1.1. The influence of technological advances on working processes 1.2. Advantages and disadvantages of temporally and locally "delimited" work 2. Constant availability and working time law 2.1. Legal status of employees in European and German working time law 2.1.1. Working time and rest periods as categories of working time law 2.1.2. Constant availability and categories of working time Law a) Is constant availability a case of on-call duty? b) Constant availability as own category between on-call duty and standby duty? c) Attribution of activities performed by employees d) Consequences, in particular with regard to rest periods 2.2. Employees' rights between flexibilisation and health protection 2.2.1. The right to unavailability as a fundamental right 2.2.2. Right to working time flexibility a) Mandatory working time law and protection from oneself b) Disproportionality of absolute limitations to private autonomy 2.3. Deliberations on necessary reforms 2.3.1. Rethinking the "rest period" 2.3.2. Specific provisions only applying to certain groups of employees 2.3.3. Flexibility based on collective agreements 3. Key findings 6. The re-configuration of working time in times of crisis: legislation and collective agreements, Tania Bazzani Abstract 1. Introduction 2. EU Law and working time a) Recent trends b) Public short-time working schemes (public STW schemes) IX 3. Working time in Italy 3.1. Collective bargaining: the chemical industrial sector 4. Some aspects of the Spanish working time regulation 5. Some aspects of the Danish working time regulation 6. The different dimension of working hours: further remarks and conclusion Part III: Institutions
In the field of regulatory instruments in the social field, the European Convention on Human Righ... more In the field of regulatory instruments in the social field, the European Convention on Human Rights (ECHR) and the related jurisprudence of the Court of European Court of Human Rights (ECtHR) deserves renewed focus. In recent years considerable debate has developed over the relationship between social rights and human rights, and the jurisprudence of the ECtHR has clearly demonstrated the growing value of human rights in the workplace. The Court explored the growing facets of the ban on forced labour and discrimination; developed the idea of employee privacy and contributed to the protection of their freedom of religion, expression and association; recognised the ‘vulnerability’ of the employee in the employment relationship and has drawn from it the principle that a restriction on hiring practices or certain dismissal practices may have a ‘chilling effect’ on the exercise of the rights provided for by the Convention. In essence, thanks to a sensitivity towards the social and labour...
International Journal of Occupational Safety and Ergonomics, 2016
This paper argues the possibility of establishing common principles of protection from psychosoci... more This paper argues the possibility of establishing common principles of protection from psychosocial risks (PSR) on the basis of the legal positions of the European Court of Human Rights (the Court) expressed in recent cases on degrading treatment and occupational health. The author focuses on the positive obligations of the States to ensure the protection of the right for life and of the right to respect for private life. The prohibition of degrading treatment in relations between private persons is also considered as relevant to the issue of the protection from PSR. Analyzing the Court's case law (judgments of the Court) we substantiate the possibility of claiming protection from PSR under the European Convention on Human Rights, namely, articles 2, 3 and 6, 8.
SENTENTIA. European Journal of Humanities and Social Sciences, 2013
The article is devoted to the history of forced labour and the realization of the duty to work in... more The article is devoted to the history of forced labour and the realization of the duty to work in Soviet Russia. Duty to work was enshrined in all the Soviet constitutions and thus became a leitmotif for the era. Three main period are emphasized: the period of Military Communism (1918-1921), the War period, including pre war and post war times (1940-1948), during the Khrushchev Thaw (1961-1965), we'll briefly speak apart about forced labour in GULAG. The author made an analysis of official documents, implementing duty to work, statistic data, researches of contemporary and Soviet scholars. This historical review of forced labour in Russia makes us conclude that obligation to work (not only a moral one but backed by criminal or administrative responsibility) was a distinguishing feature of Soviet labour law. The idea was born even before the Soviet state in the writings of K. Marx and Lenin and existed until the collapse of USSR. During these years the enforcement of the duty to work differed considerably depending on the current needs of the State, of the economic conditions.
Italian Labour Law e-Journal Issue 1, Vol. 14 (2021)
2. The concept of modern slavery and the contribution of the NGO "The Alternative" to the fight a... more 2. The concept of modern slavery and the contribution of the NGO "The Alternative" to the fight against it. 2.1. The concept of modern slavery. 2.2. Analysis of the experience of the Interregional Public Movement «The Alternative» in rescuing people. 3. Accountability for crimes related to modern slavery. 4. The ECtHR's experience in protecting victims of modern slavery. 5. Final remarks. 1. Introduction.
The book provides a thorough analysis
of the Court’s most recent case law – cases considered in
t... more The book provides a thorough analysis of the Court’s most recent case law – cases considered in the period from 1963 to 2016 – on fundamental employment rights such as the right to wages, protection from discrimination and unfair dismissal, the right to occupational safety at work, and civil liberties such as the freedom of association, the freedom of religion and expression, and the right to privacy. Drawing on close scrutiny of 347 cases since 1963, the author traces the evolutionary development of the Court’s positions on labour rights as human rights through case analyses, commentary, and general conclusions in each of several categorical groupings.
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Papers by Elena Sychenko
of the Court’s most recent case law – cases considered in
the period from 1963 to 2016 – on fundamental
employment rights such as the right to wages, protection
from discrimination and unfair dismissal, the right to
occupational safety at work, and civil liberties such as the
freedom of association, the freedom of religion and
expression, and the right to privacy.
Drawing on close scrutiny of 347 cases since 1963, the
author traces the evolutionary development of the Court’s
positions on labour rights as human rights through case
analyses, commentary, and general conclusions in each of
several categorical groupings.