Objectionable work in Israel

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The fiscal objection to social welfare rights

The paper addresses the objections often made, implicitly or explicitly, that social welfare (also known as social-economic) rights are not justiciable because of the fiscal implications that they carry. The paper compares this argument to the parallel claim, that is easily rejected by the courts, where civil and political rights are concerne

Behind the contract for welfare reform: antecedent themes in welfare to work programs

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Occupational hazards

This article provides an analysis and a critique of the law governing the employment relationship between Israeli employers and Palestinian employees in industries operating in the West Bank. Through an analysis of Israeli jurisprudence it highlights the intersection among different areas of law: choice of law, public international law (in particular the law of occupation), and labor law. The article explores the tensions that this intersection creates: first, between the importance that public international law ascribes to matters of sovereignty and territory, and the latter’s growing marginality in the labor field, which is increasingly becoming transnational; another tension is between the transience underlying the law of occupation and the exceptional duration of Israel’s occupation of the territories, which has led to an economic conundrum not predicted by the framers of the international legal structure, and with which the law of occupation can deal to a very limited extent. Through discussion of these tensions the article brings to the fore challenges to the role of meaning equality in transnational employment relationships, particularly in situations of structured power disparities deriving from political circumstances. While the challenges explored here are intimately linked to the phenomenon of occupation, the increased swiftness with which private companies worldwide are now able to cross borders and set up enterprises outside their state of origin makes the analysis highly relevant to businesses worldwide

Badges of modern slavery

Notwithstanding the 19th century formal abolition of slavery as legal ownership of people, modern slavery and forced labour have not been consigned to the past. In fact, their existence is more widespread, and made more difficult to tackle due to the lack of formal, legal criteria. This article suggests that reference to the past, historical institutions reveals seven ‘badges of slavery’ that are helpful in identifying occurrences of modern slavery and forced labour. These are: humiliation, ownership of people, exploitation of the vulnerable, lack of consent, terms and conditions of employment, limits on the power to end the employment relationship, and denial of rights outside the work relationship. These aspects constitute modern slavery as such, and thus distinguishes it from other instances of exploitative employment relations, however problematic. In addition, even where the label of modern slavery is misplaced, the identification of particular badges of slavery in contemporary employment relations may assist in highlighting their troubling facets

Flexicurity outside the employment relationship? Re-engineering social security for the new economy

The existing social insurance model was devised during the Beveridge era, which was premised on ‘male breadwinners’ and full-time employment. Since then, flexible labour markets have resulted in the erosion of the standard employment relationship and a rise in self-employment and other entrepreneurial forms of work. “Atypical” work, including zero hour contracts and agency work, have fragmented the labour contract and denied workers employment status. When coupled with forced self-employment in the gig economy, it is arguably the case that flexible labour markets demand equally flexible protections if the new ‘entrepreneurial’ workers are to fulfil their productive capacities. And yet, the social insurance system has not adapted to these changes. The concept of ‘flexicurity’ has been utilised with varying degrees of success in different European countries to make adaptations to production and labour market systems. The aim of this chapter is to re-examine social security aspects of this formula in order to re-calibrate the scope of social protection in developed economies in order to benefit all labour market participants. The chapter examines the legal and philosophical nature of social insurance as a species of social rights based on universal human rights that guarantee participation in the production and distribution of society’s welfare. The transformation of social and employment policy to manage the risks in the new economy will require a re-configuration of the institutions of social protection to re-align techniques of intervention with the nature of the risks they are intended to cover

It ain’t necessarily so: a legal realist perspective on the law of agency work

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK

Rights, duties and conditioning welfare

Somewhere between welfare to work policy and the jurisprudential analysis of rights and duties lies the third way motto of no rights without responsibilities. This paper shows how this proclamation offers no less than a new construction of one's rights insofar as they depend on the obligations that he or she owes society. Investigating this new formulation through the established perspectives of the Interest (or Benefit) Theory and the Choice (or Will) theory sheds light on the jurisprudential background of this move, and its possible consequences. The paper then moves to describe the concrete impact that this theoretical reconstruction has on provisions embedded in welfare to work programs, and suggests that this may serve as a pilot for a more comprehensive, and thus problematic, social policy. In the final section of the paper, the doctrine of unconstitutional conditions is revisited and improved in a way that, if accepted, may bar governments from diluting rights of disadvantaged groups and endangering them into becoming illuso

'The practice of the theory of labour law' [Review] Hugh Collins, Gillian Lester, and Virginia Mantouvalou (2018) Philosophical foundations of labour law

An inquiry into the philosophical foundations of labour law is a challenging one, and reviewing a volume of eighteen such chapters only magnifies the challenge. The chapters in this volume cover a wide terrain, encompassing most areas of labour law and thus the intersections between law, society and the economy, within particular realms, and through particular theoretical and at times philosophical perspectives. This arguably reorganizes the inspiring ideas raised by the chapters into a ‘mainstream’ labour law curriculum, while weaving them through with a different strand of philosophical enquiry – that of legal philosophy, and in particular, legal realism. The review begins with the question of employment status (and the corresponding scope of labour law), turning to the contract of employment; statutory protection and employment regulation; equality and non-discrimination; and, finally, trade unions and collective labour law. It concludes with some brief observations on labour law and migration

The fallacies of objection to selective conscientious objection

This paper critically analyzes the theoretical and pragmatic arguments raised against the refusal of individuals to serve in a specific military campaign that they view as immoral. The Israeli Supreme Court case of Zonshein v. Judge-Advocate General will serve as an axis of discussion. Courts worldwide have accepted that a categorical distinction exists between universal and selective conscientious objection. The combination of the Zonshein decision and the accompanying academic debate presents the opportunity to reexamine the reasons that are offered to as support for distinguishing the two types of conscientious objection. Close scrutiny finds them wantin