1. Changing employment relations, labour law & Challenges for Trade Unions

2. Why focus on Employment Relationships?
Traditionally, unionism & labour law has been based on –
Existence of employer-employee relationship
Wage earner status of (male) workers
A fixed Work place – factory/firm/establishment
But the changing world of work, flexible labour markets, Temporary Agency Work, rise of informal economy employment & disguised employment relationships are exposing the inadequacies of such assumptions

3. Changing world of work
Employment relationships are changing because relations with market – consumers and methods of organizing production have changed
Production not the most important (outsourcing), ownership of brand name and marketing is – this has consequences for what kind of workers are needed
From control via procedures to control through results
HRM policies – not just cheap labour, but committed & flexible workforce - by passing unions, restricting unions to just the ‘wage question’
Changing worker?

4. Issues for discussion Labour law protects who?
Who is an employee becomes a crucial issue for labour law, for workers protection, benefits & union membership.
What kind of employment is being offered nowadays?
Does the labour law & TU protection offered to outsourced/ contractual workers differs from regular full time workers in your country?

5. Ex: Changing employment relations in transport sector
owner-driver schemes: drivers “converted” to owners of the trucks but drive exclusively or almost exclusively for one company; instead of wage, paid per load (tonnage) delivered
Company car driver converted into owner of the car – paid on number of Kms driven
Cabin crew given commercial contracts to provide in-flight services rather than employment contracts
Mini- bus conductors hired casually employed by drivers who themselves are paid by passenger load
Porters, cleaners on trains, stations, catering services, security guards - Airport services - loading, unloading & other ground staff

6. 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 if in a client-supplier relationship) – often takes the workers out of the ambit of labour law
Many benefits under labour law depend on long term employment/regular status
employment relationships in informal economy not addressed adequately, if at all (disguised employer-workers relationships)
Does not cover unequal bargaining position of workers engaged in work for remuneration outside the strict employment relationship

7. Issues for discussion What does denial of employment relationship do?
- Creates Precarious employment:
Employment relation that gives employers flexibility but leaves
workers with unstable & insecure work, with limited rights & benefits,
and little control over how work will be carried out.
- Shifting of business risks & liabilities from employer to worker, society & govt (Ex. in case of accident, for social security, employment)
- In many countries takes workers out of the ambit of TUs and CBAs
- Increase in legal disputes
- what else?

8. Securities/Rights denied in precarious employment
Labour market security – employment opportunities
Employment security – protection against arbitrary dismissals, regulations on hiring & firing, etc
Occupational 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)
Income security – Regular payment of wages
Representation security (FoA, collective bargaining)

9. What are labour law reforms trying to do?
Promote employment flexibility, increase management powers of bringing about changes at work place
& …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 BUT its role in regulating workers rights is being eroded

10. 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?
If the objective is to promote Decent Work for All, what should be the national policy on protection for workers? in or outside the employment relationship?

11. The crux of Decent Work
Given that workers bargaining power is limited, labour policy/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

12. Negotiating change at national level …
Ensure Right to Organize & Right to Collective Bargaining!
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.
Fair Contract Act – to cover ‘dependent contractors’ and provide them with some bargaining an social security rights.

13. 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, enable sharing in gains of growth & spread of purchasing powers – widens domestic markets, encourages investment - makes domestic economic growth more sustainable.

14. Issues for Discussions
What kind of jobs are being created in the economy? [Forms of work relationships]
What are the ‘means’ available to unions to enforce workers rights (especially rights to organize & collective bargaining)?
Services required by precarious workers, and unions role in enabling access to them
Who is the employer? Power of private equity funds to close down enterprises, cause job losses or put pressure for re-negotiations of CBAs.

15. ILO Recommendation No 198 on Employment Relationship

16. Determination of Employment Relationship ILO Recommendation
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
Reduce or reverse the burden of proof – from workers to employers
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.

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

18. Determination of Employment Relationship
National law/regulations could include indicators of the existence of employment relationship – such as –
the level of control the employer has over worker’s activities
whether the worker provides his/her own equipment
whether the workers hires his/her own helpers
the degree of financial risk taken by the workers
the degree of responsibility for investment & management by the worker
workers opportunity for profit in the performance of his/her own tasks

19. Employee v/s Self employed
Under the control of other
Supplies labour only
Receives a fixed wage
Cannot sub-contract the work
Does not supply materials for the job (equipment?)
Not exposed to personal financial risk in carrying out work
No responsibility for investment & management
No opportunity to profit
Fixed hours of work, OT, etc
What else?
Owns own business
Exposed to financial risk
Responsibility for investment & management
Opportunity to profit from sound management of work
Control over what is done, when where & who does it
Free to hire other people
Can provide services to more than one person/business
Provides materials, equipment, etc for the job
Costs & agrees price for the job
Control over hours of work
What else?

20. Other measures to be taken
Settlement of disputes – effective access
Measures to ensure compliance: labour inspection services, collaboration with social security administration & tax authorities
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
Monitoring & implementation mechanism – & involvement of workers & employers organizations