Collective bargaining in transition – a renewed role for legal comparison, by Ulla Liukkunen

Comparative law has been a notably neglected discipline in the field of labour law. The explanation appears to lie in the highlighted domestic nature of labour law but also in difficulties presented by entering into a foreign domain through comparative efforts. In the field of collective labour law, particular difficulties relate to paying heed to the broader industrial relations framework and related institutional settings that shape regulatory approaches and the legal environment of labour protection.

The role and legal nature of collective bargaining and collective agreements vary in different labour law regimes. This diversity relates to different kinds of industrial relations models and their particular historical, political and socio-economic context. The edited volume Collective Bargaining in Labour Law Regimes – A Global Approach (Springer 2019) offers comparative perspectives on collective bargaining regimes and the changes they are undergoing in twenty-one jurisdictions throughout the world. The volume can thus be viewed as a global contribution to the discourse on the future of labour law.

The article “The Role of Collective Bargaining in Labour Law Regimes: A Global Approach” in the edited volume is based on the author´s general report for the 20th General Congress of the IACL held in Fukuoka in 2018. It addresses how labour market development increasingly puts pressure on collective bargaining systems. Changes in bargaining regimes call for development of methods for legal comparison of collective bargaining regimes beyond traditional categorizations. A more nuanced analysis is needed of the consequences of decentralization and the diminishing role of collective bargaining, along with related reconceptualizations.

Changes in the economy, the operating environment of companies and working life have had a profound effect on collective bargaining systems. In many national systems, erosion of key pillars of collective bargaining is noticeable, while new kinds of regulatory frameworks that enhance local level bargaining have come into being. These frameworks involve local agreements enabling in peius deviations from mandatory labour legislation or higher level collective agreements.

Decentralization is a complex phenomenon and a variety of challenges are involved in making comparisons that enable assembling certain groupings of collective bargaining systems on the basis of legal developments in decentralization. This article offers one possible way of grouping collective bargaining systems so that major trends in decentralization are used as a framework.

However, bargaining systems differ in diverse ways between and within individual groupings. Although a shift towards more local level bargaining has been simultaneously occurring in many bargaining systems, decentralization has occurred within remarkably different regulatory frameworks, with different emphases and divergent locally-embedded solutions. Much of this can be explained by the socio-economic development of a country and its labour market. In addition, historical explanations may display different characteristics.

Recent decades have seen a gradual shift in many centralized bargaining systems towards more local level bargaining. This volume points out and examines major changes in legal frameworks. It also pays attention to state intervention in bargaining regimes and austerity measures within the European semester that have had a significant impact on certain bargaining regimes, notably resulting in interventions in national collective bargaining models with a direct impact on labour standards.

In some countries, centralized models of collective bargaining have increasingly been replaced by more or less decentralized models, whereas in others national or sectoral level bargaining still plays a key role. For some countries the question of decentralization trends is not relevant, as the present system of collective bargaining is, and has been, predominantly decentralized. Yet, even these bargaining models are challenged by fundamental changes in the labour market.

The present author´s contribution highlights fundamental changes in bargaining regimes that touch upon the core elements of the right to bargain. Local bargaining Ulla Liukkunenagendas are modified towards more individualized flexibility. Developments in terms of individualization should be assessed against the original idea of collective bargaining related to workers’ collective pursuit of labour rights. The need also arises to reconsider means of collective bargaining to advocate more inclusive regulatory approaches both in terms of different groups in the labour market and new labour market phenomena.

The article by the present author argues that erosion of social dialogue has affected the institutional setup of collective bargaining in many countries. Collective bargaining produces frameworks for negotiated flexibility. Decollectivization of industrial relations is taking place as new patterns and methods of setting terms of employment are evolving at the local level in a way that highlights employer discretion and bargaining as an individualized process between employer and employee.

A scenario of another kind arises from developments in transnational labour law. The transnational dimension of collective negotiations relates to the evolution of transnational industrial relations. Importantly, it is not only a feature complementary to domestic bargaining regimes but it also has its own institutional and normative setting from which it stems and evolves.

Collective contractual arrangements in the form of transnational agreements between multinational enterprises and employee representatives ‒ involving international trade unions and European Works Councils ‒ have brought new kind of actors into the sphere of what was previously the domain of the traditional regulatory actors in labour law. These agreements consist of European level transnational agreements and international framework agreements with global reach, each having their particular characteristics in terms of objectives and contents. This volume encompasses observations on the impact of different kinds of national bargaining models on the evolution of the transnational dimension of collective labour law and on experience of the influence of transnational agreements in domestic settings.

Despite diverse experience in different states, transnational agreements add new regulatory frameworks and mechanisms to collective labour law. They demonstrate transnational normativities through an enhancement of regulatory instruments that further develop transnational rule-making capacities.

Posted by Ulla Liukkunen, Professor of Labour Law and Private International Law, University of Helsinki

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