1. ACTRAV-Turin employment relationships, labour law & ILO Recommendation No 198

2. Issues to cover in this session Role of & gaps in labour law Precarious employment relations & Labour law ILO recommendation No 198

3. Why does the society finds it so difficult to respect workers rights?

4. Purpose of labour law Redress imbalance of power between K & L – grant certain rights to workers (workers empowerment) Regulate working conditions, set minimum standards for work & service conditions (workers protection) Regulate labour market (nationally or in certain sectors) – to stipulate maximum or minimum limits (Ex: wages, strikes, right to organize, etc) Limit & control trade unions & its freedom of action What else?

5. Issues for consideration Labour law protects who? Worker? Or Employee? Who is an employee becomes a crucial issue for labour law & for workers protection What does denial of employment relationship do? - Unprotected worker, precarious employment - Fall in social security contributions & tax collections - Increase in legal disputes - Shifting of business risks & liabilities from employer/ enterprise to worker & society (in case of accident, for social security, employment) - ???

6. What are labour law reforms trying to do? Promote employment flexibility, increase management powers of bringing about changes at work place & create conditions for precarious employment & …what about the workers? In return for flexibility, higher compensation, training & redeployment for workers BUT this should be done mainly by the State!  While the costs of downsizing, insecurity of workers & investment in human capital (education & training) are sought to be passed on to the State, its role in regulating & legislating workers rights is being eroded

7. What is common to all these? Domestic work, construction, agricultural labour, manual work, temporary work, home based, piece rate work, contract labour, loading- unloading work, EPZs or SEZs, unorganized, repair maintenance jobs in building & services industry, etc Predominantly in informal economy, unorganized, precarious employment, done by women and migrants with little or no rights!

8. What is PRECARIOUS WORK? Employment relation that gives employers flexibility but leaves workers with unstable and insecure work, with limited rights & benefits, and little control over how work will be carried out or under what schedule. It pits workers against each other to undermine full time permanent employment. Mostly women and migrants - overrepresented in precarious work throughout the world

9. Some examples Korea: when irregular workers are regularised by applying the 2 year limit rule, they do not become regular workers, so are still not covered by the collective agreement and stay on lower wage rates In Malaysia, migrant workers are officially employed by a outsourcing company, not the company they work for, and are thus not covered by the collective agreement Contract workers at Ford plant in St Petersburg receive lower wages and benefits and are not covered by the Ford collective agreement In the US, Toyota terminates temporary contracts after 2 years, imposes a six month break before re-employment at the original starting salary

10. Securities/Rights denied in Precarious Employment Employment & Income security – protection against arbitrary dismissals, regulations on hiring & firing, etc Job security – secure occupation &/or opportunities for career development Work security – protection against accidents, illnesses at work, safety & health regulations, working hours, etc Skill reproduction security – opportunities to gain/ retain skills (formal apprenticeship, emp trg) Representation security (FoA, collective bargaining)

11. First to be hit in times of crisis Workers in precarious employment – ineligible for any type of severance payments or unemployment benefits. Special arrangements like short-time working, placement assistance, income support and retraining schemes apply only to the regular workforce - precarious workers are completely unprotected. In many countries migrants cannot form or join unions or be office bearers – law & practice varies

12. Gaps in labour law labour laws based on the assumption of employer-employee relationship BUT most of the new employment is contractual - where the employment is offered not as appointment but as assignment (as in a client-supplier relationship) - proving identity as workers difficult, what to talk of establishing employer - employee relationship. Many benefits under labour law depend on long term employment/regular status Labour law does not adequately address employment relationships in informal economy where employer-workers relationship is often disguised

13. Inadequacies of labour law Workforce divided, protection under labour laws differs depending on which category a worker falls under, such as Regular, Contract, Casual, Temporary, Muster roll, Adhoc employees, migrant, etc. Difficulties in establishing employment relationship causes problems not only for workers but also for the viability of national social protection systems. Very few countries with a comprehensive employer- employee relationship law that sets the basic labour standards that apply to all the workers in the economy.

14. Inadequacies of labour law Need for labour law to redress unequal bargaining position between parties to an employment relationship Establishing ‘who is the principle employer’ important in today’s world where outsourcing of production & services – national as well as transnational - is happening on a large scale. Laws, regulations & their interpretation should be compatible with Decent Work objectives of the country.

15. The crux of Decent Work Given that workers bargaining power is limited, labour standards/ labour law should ensure that no person is employed/engaged under conditions that country does not regard as ‘decent’ – which implies – Employed on wage that is insufficient to live on Be deprived of the payment or benefits to which they are entitled to Be subject to coercion, discrimination, indignity or unwarranted danger at workplace Be required to work for so many hours that he/she is effectively denied a personal or civil life Plus - Right to organize & bargain collectively

16. For policy makers the main issue is – how do you balance the need for social protection of the workers with the need of the industry for production and employment flexibility? So, what should be the national policy on protection for workers in an employment relationship?

17. Why focus on Employment Relationships? Traditionally, unionism & labour law has been based on – Existence of employer-employee relationship Existence of employer-employee relationship Wage earner status of workers Wage earner status of workers A fixed Work place – factory/firm/establishment A fixed Work place – factory/firm/establishment But the changing world of work & flexible labour markets are exposing the inadequacies of such assumptions

18. ILO Recommendation No 198 on Employment Relationship, 2006 The recommendation calls upon the governments to – Review & adapt the scope of laws & regulations to guarantee effective protection of workers in an employment relationship List criteria for determination of employment relationship, irrespective of how the relationship is described in any contractual arrangement or agreed to between the parties set up mechanism (or use an existing one) to monitor the labour markets & the organization of work so as to implement measures concerning employment relationships.

19. What measures should be there in National Policy Clear guidance for establishing employment relationship and on the distinction between employed & self-employed workers Clear guidance for establishing employment relationship and on the distinction between employed & self-employed workers Ensure standards applicable to all forms of contractual arrangements – establish who is responsible for the protection contained there in Ensure standards applicable to all forms of contractual arrangements – establish who is responsible for the protection contained there in ‘Effective’ access to dispute resolution (speedy, fair, inexpensive, etc) ‘Effective’ access to dispute resolution (speedy, fair, inexpensive, etc) Measures for implementation & compliance with law Measures for implementation & compliance with law

20. What measures should be there in National Policy Special measures for protection for vulnerable groups (ex. persons with disabilities, migrants, domestic workers) Occupations predominated by women (high disguised employment relationships in case of home-based work), clear policy to ensure gender equality & entitlements Transnational work & Migrants (measures for in-country work & in other countries) Education & training of enforcement & dispute resolution machinery

21. Determination of Employment Relationship Whether an employment relationship exists or not should be determined by ‘facts’ not ‘form’ Whether an employment relationship exists or not should be determined by ‘facts’ not ‘form’ Provide for legal presumption of existence of employment relationship where one or more relevant indicators are present; Provide for legal presumption of existence of employment relationship where one or more relevant indicators are present; Reduce or reverse the burden of proof on workers Reduce or reverse the burden of proof on workers In consultation with W & E organizations, provide that workers with certain characteristics in general or in a particular sector will be deemed to be either employed or self –employed. In consultation with W & E organizations, provide that workers with certain characteristics in general or in a particular sector will be deemed to be either employed or self –employed.

22. Determination of Employment Relationship National law or regulations should include indicators of the existence of employment relationship. Some of the indicators that could be considered while determining employment relationship - the level of control the employer has over workers activities the level of control the employer has over workers activities whether the workers provides his/her own equipment whether the workers provides his/her own equipment whether the workers hires his/her own helpers whether the workers hires his/her own helpers the degree of financial risk taken by the workers the degree of financial risk taken by the workers the degree of responsibility for investment & management held by the worker the degree of responsibility for investment & management held by the worker workers opportunity for profit in the performance of his/her own tasks workers opportunity for profit in the performance of his/her own tasks

23. Other measures to be taken Settlement of disputes – effective access Settlement of disputes – effective access Measures to ensure compliance & respect for national laws/policy – labour inspection services, collaboration with social security administration & tax authorities Measures to ensure compliance & respect for national laws/policy – labour inspection services, collaboration with social security administration & tax authorities Remove incentives to disguise an employment relationship Remove incentives to disguise an employment relationship Promote the role of collective bargaining & social dialogue as a means to finding solutions to work place problems Promote the role of collective bargaining & social dialogue as a means to finding solutions to work place problems Monitoring & implementation mechanism – setting up & involvement of workers & employers organizations Monitoring & implementation mechanism – setting up & involvement of workers & employers organizations

24. Negotiating change at national level … Ensure Right to Organize & Right to Collective Bargaining! Prevent further divisions of workers in the labour market –put all workers in one boat. Set nationwide floor labour standards – that apply to all workers & employers (de-link labour standards from permanency of employment); Roof to be attained thru Collective Bargaining – the right to which should be ensured. Promotion of the ILO’s Employment Relationship Recommendation - the employment relationship is the basis for labour law and its protection and vital for the respect of ILO standards.

25. Negotiating Change … What is the floor that employers should respect?  Freedom of Association – the right to form unions, the right to recognition  Right to Collective Bargaining  Basic social security contribution  Access to skills training  No discrimination (not only gender but also citizen ship/migrants)

26. Why Labour Rights/Standards? Labour Standards are not just a question of workers rights BUT are also means to promote sustainable economic growth! Labour standards create conditions for growth of domestic markets since they enable sharing in gains of growth & spread of purchasing powers – this makes domestic economic growth more sustainable.

27. What can Trade Unions do? Organize!  Organize!

28. Group Work Are there minimum standards guaranteed to all workers in your country? Does the law setting out minimum standards or basic labour rights expressly address the needs of workers in the informal economy? or precarious work? Migrants? What difficulties do unions have in organizing migrant workers? Women workers? What are the ‘means’ available to unions to enforce workers rights (especially rights to organize & negotiate)?