This article examines the possibility for conducting an empirical analysis of a system of industrial relations using Luhmann’s theory on autopoietic systems as a framework of analysis, but aligning that analysis with the aspirations of critical theory. The article provides a methodological contribution and based on the dual understanding of the concept of values as containing both a positivistic and a normative character, the article identifies a methodological model. Through the application of this methodological model, analysing the empirical material in two steps, the researcher will be able to conduct an analysis that can generate conclusions holding normative aspirations. This is possible since the model will allow the researcher to identify the normative values that frame the programming of the system of industrial relations and the structurally coupled systems. As such the analysis will provide ground for questioning the normative values that frame the programming of the studied systems and thus generate conclusions in line with the ambitions of critical theory.

This paper explores the need for and more so the possibility of developing international systems of industrial relations in response to the increasing globalisation of labour markets. Due to increasing internationalisation of employment relations national systems of collective bargaining and industrial relations have become challenged. The reason is that the scope of their competences is limited to act within the nation state and therefore they are unapt to deal with issues that need to be solved at an international or transnational level. In order to deal with the regulation of internationalised labour markets it would thus seem that there is a need for internationalisation of systems of collective bargaining and industrial relations as well. At the EU level the European Social Dialogue (ESD) has in periods provided promises of a potential for developing towards such an alternative. However, the road towards fulfilling such a promise seems far. At the global level the International Transport Workers’ Federation’s (ITF) campaign against flags of convenience (FOC) has developed into a system of collective bargaining with relatively efficient structures for control and enforcement. Therefore, there could be reasons to draw some lessons from the ITF FOC campaign in the future development of the ESD. 

This paper will focus on the ESD, the challenges this system is facing and its future potential as a system of industrial relations. The analytical framework for the paper is Luhmann’s theory on autopoietic systems and the paper will be divided in four parts. Firstly, the starting points, applied method and reasons for using systems theory as the basis for analysis will be briefly explained. Secondly, the paper will explain the challenges that the ESD is facing in terms of its future potential as an autopoietic system. In this analysis, I will draw on examples from different sectors and themes dealt with within the ESD. Thirdly, I will present some examples on how similar challenges have been met and dealt with within the ITF FOC system. In the concluding section I will highlight possibilities for developing and dealing with the ESD challenges based on the analysis in the previous sections. 

There are three starting points for this thesis. First, there is the system of ESD, which is criticised for lacking capacity to improve the working conditions within the EU. Secondly, there is the system developed through the global ITF FOC campaign, which is considered to have capacity to improve working conditions for seafarers at a global level. Thirdly, there is the theory on self-referential autopoietic systems, which is a useful tool for analysing systems of industrial relations and their functions. The purpose of this thesis is to deepen the understanding of the function of the ESD in relation to the development of EU legislation and policy with the aim of trying to find a model for providing a holistic analysis of regulatory systems for the labour market. The research questions are: ‘How can the significant differences and similarities between the ESD and the global ITF FOC campaign be understood?’ and ‘Why is the ESD generally regarded as lacking the capacity needed for producing results that improve working conditions, while the ITF FOC is considered to have such capacity?’ The theoretical framework used for the analysis is Luhmann’s theory on autopoietic systems. Since the thesis has a normative core I have applied a methodological model that consists of a two-layer analysis at both the empirical and theoretical level. Firstly an analysis of positivistic values has been carried out and secondly an analysis of hermeneutic values. The empirical material consists of documents and texts that can be considered part of or reflecting the communication of the studied systems. The main conclusion is that whereas the ITF FOC system is a traditional system of industrial relations based on the binary code of negotiable or non-negotiable between collective actors the ESD is a system of industrial relations based on a less clear binary code of discussable or non-discussable. The ESD is also subject to less developed communicative structures that negatively affect the system’s capacity both to produce results and to secure the efficient implementation and application of these results. This makes the ESD as a system more sensitive to hermeneutic values framing the programming of structurally coupled systems causing difficulties for the ESD to challenge such hermeneutic values.

The aim of this paper is to explore the European Social Dialogue as a regulatory institution and its transformation in a context where the values framing labour law have changed from socialistic to neo-liberal. The paper will highlight the European Social Dialogue as an autopoietic system of industrial relations and the analysis will be carried out through a methodologically holistic model in two layers where the positivistic values identifying the autopoietic system will be separated from the hermeneutic values framing the programming of the system. Examples are drawn from different themes dealt with within the European Social Dialogue and the international maritime industry. The paper shows how the EU law context originally focusing on values framed by the socialistic understanding of labour law as a means to protect the weaker part in the employment contract (i.e. the worker) with objectives of improving working conditions has changed towards a situation where neo-liberal values are promoted through an increased focus on cost reduction as well as increased profit and industry competitiveness. The legal context within which the European Social Dialogue is operating as a regulatory institution has thus changed to a setting where the strength of the parties to an employment contract or a collective agreement will be based on the balance of demand and supply. This could indicate that there is a need for European trade union organisations to reconsider their communicative strategies in order to be able to continue to promote the interests of their members. Without proper access to industrial action as a symbolically generalised communication media at the EU level, the European trade union organisations need to find other such media available in order to successfully overcome the improbability of communication in the shape of worker interests being considered as threats to economic values.

This paper aims at assessing the right of employees to refuse to have their contracts of employment transferred within the framework of the transfer of undertakings Directive. A transnational as well as a theoretical analysis is proposed. Beyond the comparison of the implementation of this Directive within six European countries, the elements of contractual, constitutional and labour law that have framed the diverging interpretations of the Member States are listed. As a conclusion, hints are given as to the possible legal evolution of the worker's right to refuse to be transferred.

The freedom of association, the right to collective bargaining and the right to industrial action are all essential elements and can even be considered as founding pillars for any autonomous industrial relations system. Put in relation with the processes of creating social policy in the EU, where the social dialogue has a role granted to it from the EC Treaty, the need for recognition of the freedom of association and the rights to collective bargaining and industrial action is evident. This paper aims to discuss and analyse these rights as fundamental rights within the EU legal order since at the EU level these rights can be questioned as to their legal status, recognition and contents. We will consider the network of national, EU and international regulations that govern these rights as well as how such regulations and other issues of importance for these rights have been treated by the ECJ. Through this analysis we will establish solid arguments in favour of considering these rights as fundamental rights in the EU legal order. The contents of these rights will also be analysed in a similar manner with the aim of arriving at a discussion of how the contents of these rights might affect the potential future development and function of the European social dialogue. The most important conclusion points out the efficient manner in which the ECJ has recognised the right to strike as a fundamental right whilst at the same time diminishing the contents of this right. This in turn means that the asymmetry of power between management and labour is retained in the sense that the development of the European social dialogue will remain at the discretion of the employers. In order to come to terms with this asymmetry of power different solutions are available, such as establishing a duty to negotiate as part of the right to collective bargaining or filling the right to strike with a proper and effective contents. If this is not done the only means for pressuring the employers to negotiate binding agreements will remain the shadow of law, which currently shines of absence from the EU legislative scene.