INTERNATIONAL SOCIETY FOR LABOUR AND SOCIAL SECURITY LAW XIX WORLD CONGRESS OF LABOUR AND SOCIAL SEC

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INTERNATIONAL SOCIETY FOR LABOUR AND SOCIAL
SECURITY LAWXIX WORLD CONGRESS OF LABOUR AND
SOCIAL SECURITY LAWTheme 1Regulatory
Frameworks and Law Enforcement in New Forms of
EmploymentRapporteur Professor Rosemary
OwensAdelaide Law School
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Introduction and Overview

• The Informal Economy and Precarious Work
• The Regulatory Framework
• Organisation and Representation of Workers in the
  Informal Economy and Precarious Work
• Law Enforcement Impacts on the Informal Economy
  and Precarious Work
• Prospects for the Future

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The National Reports

• Argentina Republic of Austria
• Brazil Republic of Dominica
• Columbia South Africa
• Czech Republic (South) Korea
• Finland Sweden
• Germany Taiwan
• Japan United Kingdom
• New Zealand Uruguay

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The Informal Economy

• Black, grey, shadow, underground
• Illegal work such as drug dealing
• Legal work but it is unregulated,
  unreported, undeclared
• non- reporting and under-reporting of activities
• no strict separation between the formal and the
  informal economy
• Visibility
• Impacts of migration
• inter-national
• intra-national
• regional rural/urban

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The Informal Economy

• Workers outside the law
• the diversity of work relationships
• self employed, working for others, unpaid family
  members,
• Businesses - unregistered and operating beyond
  the State
• lack of access to financial institutions
• blurring of capital and labour
• The range and type of activities
• production and sale of goods wholesale and
  retail, service industries
• household economy
• ILO an economic approach (1991) or an
  institutional approach (2002)?

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The informal economy its size and scale

• Differences between developed and developing
  economies - a wide range of estimates of its
  size
• of GDP
• Austria 4.5 Germany 7 Hungary 20-27
  New Zealand -11.3 Sweden 4.5 Taiwan 20
• of workers
• Argentina 45 Brazil - 50.8 Colombia
  56.5 Dominican Republic 20 Germany 7-8
  Sweden 18 United Kingdom 2 - 7.8
• Challenges - the accuracy of measurements

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Precarious Work

• The growth of atypical work or non-standard
  work
• Deviation from the old paradigm of standard work
• Part-time, casual, short-term fixed term, job
  sharing, agency (dispatch) work, seasonal work,
  outworkers, home-based workers, telework,
  franchising, (dependent) self-employed/individual
  entrepreneurs
• Assumptions regarding the nature of the worker
• The concept of precarious work

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Precarious Work

• The concept of precarious work
• Working hours irregular, short-time, liable to
  be changed (reduced), underemployment
• Low pay earnings are unstable, unpredictable,
  cannot secure a decent standard of living for the
  worker and their family
• Insecurity at work likelihood of dismissal, or
  reduction of hours
• Skills insecurity training and educational
  opportunities
• Functional insecurity the content of the job is
  unstable, workers able to be shifted at will
• Safety and insecurity unsafe work environments
• Representational insecurity the capacity to
  have a voice, to be represented in the workplace
• Vulnerable denied, or unable to access, rights
  at work

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Precarious Work

• Precarious Work - a term used most frequently
  in Europe
• although the concept is understood more widely
• a sociological or legal construct? or both?
• some caution regarding elision of atypical and
  precarious work?
• what is the correlation between precarious and
  non-standard work?

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Precarious Work its size and scale

• Differences between developed and developing
  economies - a wide range of estimates of the
  size and scale of precarious work
• Australia 28 casual workers low paid workers
  10-12
• Finland - part-timers 10-12 fixed term 13
  
• Hungary - part-timers 4 fixed term 6.7
  temporary agency work 2.5 self-employment
  12.7
• Japan 33 - non-standard workers
• Korea - 33 - non-standard workers
• Sweden - part-timers 25 fixed term 17
• Taiwan- employers using temporary workers - 21
  part-timers 18 dispatch workers - 5.5
• United Kingdom part-timers 25 vulnerable
  workers 10-33
• Challenges - the accuracy of measurements
• Gender and age dimensions

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Intersections

• Identifying the boundaries of the province of law
  and work?
• the informal economy - beyond the law?
• precarious work the domain of law?
• Concepts to bridge the legal, social and economic
  divide
• The vulnerable worker
• Hard Work, Hidden Lives (UK)

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Working in the Informal Economy

• Low wages and poverty
• Non-standard precarious work
• Long hours
• Low skilled
• Lack of access to protection of any rights
• A gender dimension
• Opportunity or necessity?
• Intersections
• mapping the informal economy and precarious work
• mapping non standard work and precarious work

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Challenges

• The relationship with the State the impacts of
  concealment of the informal economy
• The contribution of the informal economy to the
  State
• The complicity of the State in the exploitation
  of workers
• The structure of the informal economy and the
  degree of connectedness to the formal economy
• The variety of work in the informal economy

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The Regulatory Framework in Context

• Political re-alignments producing social and
  economic impacts
• Geography and the movement of peoples
• Globalisation and the opening up of national
  economies
• The role of trans-national corporations and world
  financial institutions
• The global economic crisis
• Free trade agreements
• The information technology revolution
• The local context familial and friendship
  relations

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The Regulatory Framework

• Law as a productive force making the world of
  work
• Escaping the reach of law
• economic motivations?
• social motivations?
• Reaction tightening laws response
• Incentives to draw enterprises and workers back
  to law

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Labour Laws Standards

• Working time including hours, rest breaks,
  holidays
• Wages and income
• Work and family parental leave
• Safety at work
• Termination dismissal and redundnacy
• Social protection illness, underemployment,
  unemployment, beyond the labour market
• Representation and freedom of association

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The Scope of Labour Law and the new forms of
work

• Work in the informal economy
• labour law in denial? or simply ineffective?
• The concept of the employment relationship
• Beyond employment? the worker
• Assumptions of the standard or typical worker
  to what extent do they still dominate?
• Targeting laws protections to precarious workers
• Remedying the deficits in laws protection
• policy
• judicial interpretation

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Human Rights and Anti-discrimination Law

• Labour law and equality law - their
  hierarchical relationship
• Equality principles and precarious work
• The scope of equality and anti-discrimination law
• Extending the domain of law at work from labour
  law to the law of work
• beyond the employee how far have we come?

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Mapping the Responses of Law to Some of the New
Forms of Work

• Independent contractors
• Agricultural and seasonal workers
• Migrant workers
• Sex Workers
• Home-based workers
• Volunteers
• Child workers

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The Role of Trade Unions

• The roles of the trade union from broad
  political action to assistance to individual
  workers
• Trade union recognition
• Historically weak coverage and little concern
• Resources and the challenge of reaching workers
• New sectors, no historic connections to the
  labour movement
• small enterprises
• Practical barriers
• resources
• language and culture
• Law the legacy of de-regulation

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Beyond Trade Unions

• Innovations and Initiatives
• beyond trade unions
• productive engagements between trade unions and
  other organisations
• Extending the benefits of collective bargaining
• facilities and impediments

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The Structure of Enforcement

• The Individual and collective dimensions
• Self regulation and self enforcement
• the role of the social partners
• problems eg where rates of unionism
• Dispute resolution at the workplace
• Mediation
• Conciliation
• Arbitration
• Inspectorate
• Tribunals
• Courts

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Enforcement in the Informal Economy and
Precarious Work

• The challenges of enforcement the assumptions
  embedded in enforcement structures
• Special enforcement measures
• Predictors of success
• The impediments to success
• financial
• organisational
• legal
• Practical
• Intersections anti-discrimination law and
  labour law

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Enforcement the Role of Trade Unions and
Non-State Actors

• The role of the trade unions
• the impact of precarious work on prospects for
  success
• Enhancing effectiveness
• Rights of entry
• Rights of representation
• Non-State actors
• opportunities for representation
• broad based political action

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Informal Economy - Challenges

• A problem of (individual) non-compliance or a
  (structural) problem of labour law?
• Strengthen enforcement, ensure compliance with
  existing standards the issues of resources
• New forms of regulation
• eg production chains, the extension of social
  security and other benefits to workers in the
  informal economy
• Focusing on the wider issues
• high taxes and the costs of high levels of
  regulation?
• migration and the movement of peoples
• reducing poverty and unemployment
• Research

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Precarious Work Challenges

• The scope of labour law
• who is the subject of labour law?
• The possibility of decent work and a new standard
  worker
• The limits of labour regulation social
  objectives and economic impacts
• equality pro-rata treatment
• balancing flexibility and security
• balancing work and family
• Impacts of the global economy and the role of
  trans-national corporations and international
  finance

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Current Responses

• Repression eg increases in penalties and fines
• Re-regulation and extending protections
• self employed to be included in workers
• the regulation of domestic workers
• EU directive on Temporary Work (2011)
• A need for a more nuanced approach different
  solutions for different sectors, and different
  national economies?
• The challenge of the working poor and the
  informal economy

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Prospects for the Future- The Law of Work in A
Global Era

• Philadelphia Declaration (ILO, 1944)
• Declaration on Fundamental Principles and Rights
  at Work (ILO, 1998)
• Declaration on Social Justice for a Fair
  Globalisation (ILO, 2008)

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Declaration on Social Justice for a Fair
Globalisation

• The Decent Work Agenda
• Realising the social benefits of economic
  co-operation
• Meeting the challenges of economic integration
  and income inequality
• Responding to the growth of the informal economy
  and the problem of the working poor
• Labour is not a commodity poverty anywhere is a
  threat to prosperity everywhere
• A restatement of the fundamental values of the
  ILO
• The role of sustainable enterprises in creating
  employment and income opportunities
• Challenges arising from the Global Financial
  Crisis

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Declaration on Social Justice for a Fair
Globalisation

• Promoting employment by creating a sustainable
  institutional and economic environment
• Developing and enhancing measures of social
  protection sustainable and adapted to national
  needs
• Promoting social dialogue and the value of
  tri-partism
• Recognition of the fundamental principles and
  rights at work

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INTERNATIONAL SOCIETY FOR LABOUR AND SOCIAL
SECURITY LAWXIX WORLD CONGRESS OF LABOUR AND
SOCIAL SECURITY LAWTheme 1Regulatory
Frameworks and Law Enforcement in New Forms of
EmploymentRapporteur Professor Rosemary
OwensAdelaide Law School