Protection of the Weaker Party – to Whom is Labour Law Still Applicable? | Pages 466-476 | PDF

Gaabriel Tavits, Dr. iur., Professor
University of Tartu, School of Law, Estonia

Keywords: labour law, international standards, personal scope, ILO, Council of Europe, Court of Justice of the European Union

National law is affected by a number of different international regulations and agreements. International agreements provide for rules aimed at harmonizing certain requirements and understandings that different countries should follow. In labour relations, international standards are set at two different levels – on the one hand, by the International Labour Organization (ILO), and on the other by regional standards – by the Council of Europe and the directives and regulations adopted by the European Union.

All these international rules have important implications for national labour law. However, such international norms do not provide a clear personal scope – that is, it is not clearly defined to whom such international norms apply. Although the various international rules do not directly define the persons to whom those norms apply, – the implementation of international rules remains a matter for national law. Thus, the concept of both employee and employment relationship is shaped by national law.

The exception here is the European Union, where the European Court of Justice has given an autonomous meaning to the concept of worker (particularly in the context of freedom of movement for workers). Although the concept of a worker and of an employment relationship has been developed by the Court of Justice of the European Union, Member States retain the right to define the employment relationship in accordance with the law in force in the respective Member State.

The main factor in shaping employment relationships is the employee's dependence on the person providing the work, and the person providing the work also has an obligation to pay remuneration for the work performed.

Although the scope of those rules is defined differently by different international rules, the characteristics generally applicable to the definition of an employee and the employment relationship are similar to those used in national law.