A Comparative Perspective on the Application of Domestic Labour Legislation in International Employment Disputes

• Jurisdiction: South Africa
• Author: Karin Calitz
• Pages: 538-561
• Date: 16 August 2019
• Published date: 16 August 2019
• Citation: (2013) 24 Stell LR 538

538

A COMPARATIVE PERSPECTIVE ON THE

APPLICATION OF DOMESTIC LABOUR

LEGISLATION IN INTERNATIONAL

EMPLOYMENT DISPUTES

Karin Calitz

BA LLB LLM LLD

Associate Professor, Stellenbosch University

Christoph Garbers

BLC BComm (Hons) LLB LLM

Associate Professor, Stellenbosch University*

1 Introduction

The economic integrat ion underlying globalisation has h ad a profound

effect on the mobility and movement of labour across n ational boundaries.

Apart from the p eripatetic natu re of certain professions many employees –

because of an enterprise’s desire to rotate staff or to assign staff to specic

projects or afliates in foreign countries – perform their duties across national

boundaries. T he phenomenon of transnational employment ra ises unique

legal challenges and may ultimately requ ire visionary solutions base d on

harmonisation of laws th rough convention and perhaps protect ion through

transnational c ollective bargaining. These pro cesses, however, are slow and

often cannot be expect ed to do more than provide baseline prot ection for

employees. This simply means that most int ernational employment dispute s

arise (and will continue to do so) at the micro level when individu als challenge

an employer’s conduct in a specic countr y’s courts or tribunals wit h reliance

on a specic countr y’s labour laws.

Two factors combine to serve as harbingers of the someti mes complex issues

that arise in the se cases and also to delineate t he focus of this article. First,

the immediate chal lenge arises when an indiv idual litigant institut es action

in a country a nd typically relies on the labou r laws of the same country th at

do not readily or apparently have a domin ant international c onnection with

the dispute. A good recent example is to be found i n Simpson v Intralinks1

(“Simpson”), where the claimant lived and worked in Ger many, her contract

of employment contained an express choice of juris diction (Frankf urt) and

choice of law (German), yet she brought action against her employer (with

its regist ered ofce in London) under the Sex Discr imination Act 1975 and

Equal Pay Act 1970 i n the Employment Tribunal in the UK. Whether th is

* We would like to than k the two anonymou s referees for their helpf ul comments and s uggestions

1 U KEAT/0593/11/RN

(2013) 24 Stell LR 538

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happens for reasons of cost, convenience, re ality,2 availability of remedies,3 or

a combination of these factors does not mat ter for our present pur poses. The

fact remains that domestic tribunal s and courts are called on to answer difcult

questions relating to jur isdiction and the law applicable to tra nsnational

employment disputes.4

Second, while cont ractual principles continue to be signicant i n the

regulation of the employment relationship, domestic lab our legislation

nowadays provides the bulk of protection and t he rights most often relied

on in practice by litigants. I n particular, domestic lab our legislation will

typically ex tend “fair” ter ms and conditions of employment. At a rst level,

this happens di rectly through mi nimum standa rds legislation, which often

has overriding effect on co ntracts of employment, and indi rectly through the

promotion of collective bargaining and its p rerequisite rights such as freedom

of association. In addition, domest ic labour legislation typically provides for

protection against u nfair dismissal and a p rohibition against discri mination

(including with respect to e qual pay). Further more, many countries recognise

the need to provide for simple, speedy and relatively cheap enforcement

mechanisms in resp ect of these legislative rights – often th rough specialist

tribunals cr eated by legislation with statutor ily circumscr ibed jurisdiction

regarding the ty pes of disputes they may hear and determine.5 O n top of this,

domestic legislation is often silent on the issue of extr aterritoria l application.

At the same time, discre pancies remain in the levels of protection offered by

labour legislation of different count ries, and it is also reasonable to ass ume

that levels of sophistication in the often spe cialist institutiona l application of

labour legislation also differ bet ween countries.

Against th is background, the focu s of this article is specic – to c onsider,

on a comparative basis, the application of domestic labou r legislation in

international e mployment disputes. In part 2 below, the problem and its

possible solution will be described , for the purposes of the discu ssion,

as a basic choice between two cur rently competing approaches: a private

international law approach (conict of laws6 approach, with the applicat ion of

legislation seen as incidental to t he applicable or proper law) and a more direct

interpretive approa ch (where the application of legislation in international

employment disputes is seen purely as a mat ter of statutor y interpretat ion).

Then in part 3 we shal l provide a comparative overview of the approaches

and experiences in t he UK (in the context of the Europea n Union (“EU”)),

South Africa, New Zeala nd and the USA. While the choice of these countries

is hardly exhaustive, consider ation of their approaches does provide examples

2 W here, for example, the other av ailable option would be to approa ch the courts of a countr y relatively

undeveloped in c omparison to the fo rum of a litigant’s choice

3 W here, for example, th e labour laws of other pos sible forums do not prov ide the same level of prote ction

4 Of c ourse, matters may be come even more complicated if th e applicable law is foreign: the cont ent of

foreign law is a mat ter of fact – evidence and p roof – before the court wh ich accepted juris diction This

may be no easy mat ter and often beyond t he capacity of litiga nts and represent atives

5 Ex amples of such tribuna ls are the Employment Tribu nals in the United Kin gdom and the Commission

for Conciliatio n, Mediation and Ar bitration in Sout h Africa

6 Se e Parry v Astral Ope rations Ltd 20 05 26 ILJ 1479 (LC) for an exposit ion of diffe rent ter ms used in this

context

INTERNATIONAL EMPLOYMENT DISPUTES 539

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