The European Social Charter: A Commentary, Part 2: Commentary of the Preamble, Part I and Part II (Articles 1 to 10)

This authoritative Commentary drafted by scholars of the Academic Network on the European Social Charter and Social Rights (ANESC) is aimed both at researchers studying socio-economic rights in Europe, and at legal practitioners; civil society organisations, trade unions and ministerial staff engaging with the procedures of the European Committee of Social Rights. The text is compiled by a large body of expert contributors, working together with an Editorial Board, under the supervision of a Scientific Committee, which reviews the quality of each chapter. The Scientific Committee is composed of the most respected experts on the European Social Charter and Social Rights in Europe. The Commentary will offer approx. 106 Chapters, organized in 8 Volumes, some of which are focused on the substantive state obligations and the jurisprudence of the European Committee of Social Rights, others on the procedures that state representatives, international bodies and applicants must follow to engage with the system of the European Social Charter. Volume 2 analyses the European Social Charter provisions, starting with the Preamble and covering Articles 1 to 10 and is edited by Carole Nivard. Half Title Title Page Copyright Page Contents Foreword Preliminary Remarks and Acknowledgments Abbreviations Table of Cases Notes on Contributors Preambles I The Preamble in the Preparatory Work of the European Social Charter II The Preambles of the Additional Protocols of 1988 and 1995 III Towards the Revision of the European Social Charter IV The Preamble of the European Social Charter Revised V The Preambles of the Charter and Its Protocols in the Practice of the European Committee of Social Rights A The Preambles in the Control Procedure over States’ Reports B The Preambles within the Collective Complaints’ Procedure Concluding Remarks Part 1 List of Rights and Principles List of Rights and Principles I Presentation A Origins: The Expression of a Compromise B An Ambivalent Content 1 A Simple Catalogue of Rights and Principles? 2 A Shared Foundation of Social Values? C An Uncertain Legal Scope 1 An a Priori Declarative Value 2 A Normative Scope: The Obligation to Pursue All Listed Goals a An Obligation Set Out in the First Sentence of Part 1 b Nature of the Obligation in the First Sentence II Practice A An Underexploited Incentivizing Function B An Underdeveloped Interpretive Function Concluding Remarks Part 2 Revised European Social Charter Article 1 The Right to Work I The Conception of the Right to Work II Article 1 § 1: Full and Stable Employment A The Nature of State Obligations B Article 1 § 1 in the Light of European Union Policies III Article 1 § 2: Free Labour and Prohibition of Discrimination A The Prohibition of Discrimination B The Prohibition of Forced and Compulsory Labour C Conditions for Social Security Benefits and the Prohibition of Labour Exploitation D New Frontiers in the Protection of Free Labour IV Article 1 § 3: Free Employment Services for All Workers V Article 1 § 4: Vocational Guidance and Training VI Correlations and Divergences between the Right to Work in Other International Instruments VII The Relationship between Article 1 and the Other Provisions of the Charter VIII Brief Considerations on Enforcement Perspectives Concluding Remarks Article 2 The Right to Just Conditions of Work I Article 1 § 1 – Reasonable Working Time II Article 2 § 2 – Public Holidays with Pay III Article 2 § 3 – Annual Holiday with Pay IV Article 2 § 4 – Reduced Working Hours or Additional Holidays in Dangerous or Unhealthy Occupations V Article 2 § 5 – Weekly Rest Period VI Article 2 § 6 – Information on the Employment Contract VII Article 2 § 7 – Night Work Concluding Remarks Article 3 The Right to Safe and Healthy Working Conditions I Article 3 § 1 II Article 3 § 2 III Article 3 § 3 IV Article 3 § 4 Concluding Remarks Article 4 Right to a Fair Remuneration I Article 4 § 1: Right to a Fair Remuneration A Scope of Application 1 Persons 2 Remuneration B Decent Living Standards 1 General Concept 2 Evaluation Method a Difficulties of Assessment b Previous Approaches c New Approach C Decisions II Article 4 § 2: The Right of Workers to an Increased Rate of Remuneration for Overtime Work A Definitions, Function and Implementation 1 Definitions 2 Function 3 Implementation a Implementation Standard b How to Implement the Increased Rate of Pay B Exceptions 1 Categories of Workers a Top Civil Servants in the Public Service b Senior Managers in the Private Sector 2 Implementation III Right of Women and Men Workers to Equal Pay for Work of Equal Value A Definitions 1 Remuneration 2 Work of Equal Value B Decisions and Conclusions 1 Obligations of the States a General Obligation b Special Duty of Appreciation in Law c Particular Duty of Recognition in Fact 2 Evaluation of the Situation 3 Application of the Equality Principle in Practice a Objective Job Evaluation b Wage Setting c Increasing Wages in Sectors Characterised by Relatively Low Pay and Traditionally Employing a Large Number of Women 4 Scope of Application 5 Judicial Guarantees a Contrary Legal Norms b Right to a Judge c Burden of Proof d Redress Regarding Remuneration e Protection against Victimisation f Compensation in Kind for Retaliatory Dismissal g Compensation for Retaliatory Dismissal IV Right of All Workers to a Reasonable Period of Notice for Termination of Employment A Principle 1 Function 2 Object 3 Scope of Application a Beneficiaries b Situations c Exclusions B Appreciation C Modalities 1 Standards 2 Starting Point of the Notice Period 3 Notice Period 4 Exemption of the Worker from the Notice Period D Conclusions and Decisions V Salary Deductions A Object B Scope of Application 1 Persons 2 Retentions C Modalities 1 Accepted Standards and Circumstances 2 Non-admitted Standards and Circumstances Concluding Remarks Article 5 The Right to Organise I General Presentation A The Right to Organise – Particular Expression of the General Freedom of Association and One of the Two Facets of the Trade Union Freedom B Relationship to other International Instruments and to Other Provisions of the Charter II The Content of the Right to Organise and Corollary Obligations A Forming Trade Unions and Employer Associations 1 “Trade Unions”: The Principle of Trade Union Pluralism 2 Restrictions Imposed by the State 3 Restrictions Imposed by the Employer B The Right to Join a Trade Union C The Right Not to Join a Trade Union 1 Closed-Shop Agreements 2 Security Clauses and Industry Charges D Trade Union Activities E Representativeness 1 The Trade Union Pluralism Conundrum 2 Reasonable Representativeness Requirements III Personal Scope A “Workers” B General Restrictions Based on Article G ESC (Rev)/Article 31 ESC. Civil Servants C Specific Restrictions Based on Article 5 Paragraphs 2 and 3 1 Members of the Police Force 2 Members of the Armed Forces Concluding Remarks Article 6 The Right to Bargain Collectively I The Origins of Article 6 of the European Social Charter A The Ambitious Drafts of the Consultative Assembly B The Reluctant Position of the Committee of Ministers C The Current Form of Article 6 II The Right to Bargain Collectively A Joint Consultation B Voluntary Negotiations 1 The Negotiating Parties 2 The Purpose of the Negotiations 3 Possible Restrictions C Conciliation and Voluntary Arbitration III The Right to Take Collective Action A The Content of the Right to Take Collective Action 1 The lawful forms of collective action 2 The Persons Empowered to Initiate a Collective Action 3 The Claims of a Collective Action 4 The Effects of Collective Action B Possible Restrictions of the Right to Take Collective Action 1 Compliance with Procedural Requirements 2 Workers Excluded from the Right to Strike C. The Relationship between the Right to Take Collective Action and the Economic Freedoms of Employers 1 Prohibition of Collective Actions on the Sole Basis of the Rights and Freedoms of Employers 2 Restriction of Collective Action on the Basis of Economic Freedoms Guaranteed by EU Law Concluding Remarks Article 7 The Right of Children and Young Persons to Protection I Paragraph 1: The General Prohibition on Employing Children under the Age of 15 Years II Paragraph 2: A Minimum Age of Admission to Employment III Paragraph 3: A Prohibition of Employing School Children at Work that Affects Their Education IV Paragraph 4: Working Time of Young Workers V Paragraph 5: Fair Remuneration for Young Employees VI Paragraph 6: Vocational Training as Part of the Working Day VII Paragraph 7: Entitlement to Paid Annual Leave VIII Paragraph 8: Prohibition of Employment in Night Work IX Paragraph 9: Regular Medical Examinations X Paragraph 10: The Special Protection against Physical and Moral Dangers A The Protection against Sexual Exploitation B Protection against the Misuse of Information Technology C Protection from other Forms of Exploitation Concluding Remarks Article 8 The Right of Employed Women to Protection of Maternity I Article 8 § 1 – Right to Maternity Leave with Adequate Income A Leave Length B Leave Payment 1 Qualifying Period 2 Adequate Level of Protection 3 Maximum and Minimum Limits II Article 8 § 2 – Prohibition of Dismissal during Pregnancy and Maternity Leave A Personal Scope B Dismissal Prohibition Period C Exceptions to the Dismissal Prohibition D Consequences of Unlawful Dismissal 1 Reinstatement 2 Compensation III Article 8 § 3 – Right to Time Off for Nursing A Personal Scope B Nursing Definition C Infant Age D Sufficient Time Off for Nursing E Time Off Payment IV Article 8 § 4 – Employment of Pregnant Women, Women Who Have Recently Given Birth and Women Nursing Their Infants in Night Work A Scope and Purpose B Night Work Definition C Night Work Regulation D Exemption from Night Work V Article 8 § 5 – Employment of Pregnant Women, Women Who Have Recently Given Birth and Women Nursing Their Infants in Unsuitable Work, by Reason of Its Dangerous, Unhealthy or Arduous Nature A Scope and Purpose B Prohibited Activities C Measures of Protection Concluding Remarks Article 9 The Right to Vocational Guidance I General Presentation: Relationship to other International Instruments and to Other Provisions of the Charter II Personal Scope A “All Persons ...” B “Handicapped ...” C Nationals of the other Parties to the Charter III Main Content (Material Scope) A State’s Substantive Obligations under Article 9 B A Programmatic Right with a Progressive Realisation. Assessment Criteria. Minimum requirements Concluding Remarks Article 10 The Right to Vocational Training I Vocational Training in Other International Instruments II Article 10 in the Revised Charter System III Article 10 § 1: The Scope of Vocational Training IV Article 10 § 2: Vocational Training for Young People V Article 10 § 3: Continuing Vocational Training VI Article 10 § 4: Vocational Training for the Long-Term Unemployed VII Article 10 § 5: Guaranteeing Effective Access to Vocational Training VIII Critical Issues and Prospects for Implementation Concluding Remarks Selected Bibliography This authoritative commentary drafted by scholars of the Academic Network on the European Social Charter and Social Rights (ANESC) is aimed at academic researchers studying social and economic rights in Europe and legal practitioners, civil society organisations, trade unions and state representatives engaging with the procedures of the European Committee of Social Rights. The text is composed of contributions from a large number of experts, bringing together senior and young scholars across different countries and legal traditions with expertise in social and economic rights and a commitment to enhancing the European system for regulating these rights. The commentary offers 106 chapters, organised into eight volumes, some of which are focused on the substantive obligations of State Parties to the European Social Charter and the practice of the European Committee of Social Rights and others on the procedures that state representatives, international bodies and applicants must follow to engage with the Charter system. Volume 2 analyses the European Social Charter provisions, starting with the Preamble and covering Articles 1 to 10. "This commentary, drafted by scholars of the Academic Network on the European Social Charter and Social Rights, is aimed both at researchers studying socio-economic rights in Europe, and at legal practitioners; civil society organisations, trade unions and ministerial staff engaging with the procedures of the European Committee of Social Rights. The text is compiled by a large body of expert contributors, working together with an Editorial Board, under the supervision of a Scientific Committee. The commentary will offer approximately 106 Chapters, organized in eight volumes, some of which are focused on the substantive state obligations and the jurisprudence of the European Committee of Social Rights, others on the procedures that state representatives, international bodies and applicants must follow to engage with the system of the European Social Charter. The volumes in this monumental and authoritative collection will be published from 2022 onwards"-- Provided by the publisher