Strengthening the protection of precarious workers: the concept of
precarious work
Dr Nicola Countouris*
Table of Contents Introduction Part I – Main definitions of precarious work Part II – Manifestations of precarious work in Europe II. a. Common Manifestations II. b. National specificities Part III – Policy debate and legal developments on precarious work in Europe Part IV – Academic debate on precarious work in Europe IV. a. Revisiting the reach of labour law – recasting the binary divide IV. b. Ad hoc regulation for the ‘grey area’ between the binary divide IV.c. A reformed ‘binary divide’ – ‘single contracts’ and ‘tenure tracks’ Conclusion *
Lecturer in Law at the Faculty of Laws of University College London. Some of the ideas discussed in this handout are the product of research work carried out jointly with Professor Mark Freedland. However all views expressed here are those of the author, who remains the sole responsible for any opinions or omissions. This handout is for teaching purposes only. Please do not quote without the author’s permission. 1
Learning Objectives •
•
•
To identify the main definitions of the term ‘precarious work’ To identify how precarious work manifests itself, with particular focus on Europe To identify the terms of the policy and academic debates/reflections and legal developments at European level concerning the protection of precarious workers 2
Introduction The purpose of this document is to provide a handout accompanying the presentation on “Strengthening the protection of precarious workers: The concept of ‘precarious’ work”. The document is divided in four parts followed by a conclusion. Part I provides a review of the main definitions of precarious work, as they emerge from academic analysis and a number of policy papers produced by (or for) a number of international organizations such as the EU or the ILO. Part II seeks to identify how precarious work manifests itself with particular focus on Europe. Part III identifies the terms of the policy debate and legal developments at European level concerning the protection of precarious workers. Part IV does the same, but mostly by reference to the academic debate. This guide should merely be seen a general introduction to a set of conceptual, legal, and regulatory issues that will be the object of more detailed study and analysis in the following sessions of this course. Part I – Main definitions of precarious work The academic and policy debate surrounding the concept of ‘precarious work’ is hardly new. Aris Accornero – an Italian sociologist ‐ points out that, in many ways, the national debate on precariousness can be traced back to the studies made by Sylos Labini, an Italian economist, on Precarious Employment in Sicily in the 1960s.1 In a seminal paper published on the International Labour Review, Sylos Labini already articulated a stimulating definition of ‘the concept of precarious employment’.2 The essential elements of that definition are reported below 1
2
A. Accornero, San Precario Lavora per Noi (Rizzoli, 2006), 16. P. Sylos Labini, ‘Precarious Employment in Sicily’ (1964) ILR, 270‐271. 3
This definition is of course very much the product of its time, and of the particular labour market sector that was being observed by Sylos Labini. The debate on precarious work was just as fertile in other European countries, and led to the adoption of other, equally interesting, and arguably more general, definitions. The French definition produced in 1987 for the Conseil Économique et Social offers a broad concept of precariousness, applying both within and outside the labour market. ‘La précarité est l'absence d'une ou plusieurs des sécurités permettant aux personnes et aux familles d'assumer leurs responsabilités élémentaires et de jouir de leurs droits fondamentaux. L'insécurité qui en résulte peut être plus ou moins étendue et avoir des conséquences plus ou moins graves et définitives. Elle conduit le plus souvent à la grande pauvreté quand elle affecte plusieurs domaines de l'existence qu'elle tend à se prolonger dans le temps et devient persistante, qu'elle compromet gravement les chances de reconquérir ses 4
droits et de ré‐assumer ses responsabilités par soi‐même dans un avenir prévisible’.3 It is fair to say that in more recent times the issue of ‘precarious work’ has attracted a growing interest on the part of policy makers and academics alike. With this growth we have had an inevitable proliferation of studies, surveys, reviews, and academic publications analysing, and seeking to define the concept of precarious work. The fragments below provide a number of definitions offered by a number of reports and academic publications. This is the famous, and widely relied upon, definition provided by Rodgers and Rodgers ‘The concept of precarious work goes beyond the form of employment to look at the range of factors that contribute to whether a particular form of employment exposes the worker to employment instability, a lack of legal and union protection, and social and economic vulnerability’.4 In this work, Rodgers also explored four dimensions of precariousness (to be discussed in Part II of this document) namely the temporal, organisational, economic, and social, which have had been widely referred and have had a considerable influence on any further work on precarious work. For instance, the definition below was elaborated in a report prepared for the European Commission by a group of researchers coordinated by the University of Navarra, Spain, and widely relied on ‘the four dimensions’ conceptualised by Rodgers and Rodgers ‘… a possibly wider definition [is] provided according to which PE is understood as a variety of forms of employment (e.g. temporary employment, underemployment, quasi self‐employment, on‐call work) established below the socially accepted normative standards (typically expressed in terms of rights, of employment protection legislation, and of collective protection) in one or more respects (the four dimensions) which results from an unbalanced distribution towards and amongst workers (towards workers vs. employers, and amongst workers, which leads to the segmentation of labour) of the insecurity and risks typically attached to economic life in general and to the labour market in particular’.5 3
J. Wresinski, ‘Grande pauvreté et précarité économique et sociale’, (1987) Journal Officiel, 6. Available at http://www.atd‐quartmonde.org/IMG/pdf/WRES_JO87.pdf 4
G. Rodgers, ‘Precarious Work in Western Europe: the State of the Dabate’, in G. Rodgers and J. Rodgers (eds), Precarious Jobs in Labour Market Regulation: The Growth of Atypical Employment in Western Europe (International Institute of Labour Studies, Geneva, 1989), 1. 5
EC Commission, Precarious Employment in Europe: A Comparative Study of Labour Market Related Risks in Flexible Economies (2004), 9. Available at ftp://ftp.cordis.europa.eu/pub/citizens/docs/kina21250ens_final_esope.pdf 5
Popular as it may be, the Rodgers’ taxonomy has also been subject to a number of reformulations. Vosko et al., for instance, do take the Rodgers’ definition as the starting point of their analysis but note that ‘the dimensions identified by Rodgers and its counterparts, while useful, are somewhat narrow. They assume the situation of a wage worker, even though precarious employment traverses forms of self‐employment and wage work’.6 They provide their own description of precarious employment, but perhaps more importantly suggest a novel and more holistic interdisciplinary methodological approach to the conceptualisation and study of the manifold dimensions of precarious work. Both their ‘definition’ and their methodological approach appear in the excerpts below ‘Precarious employment encompasses forms of work involving limited social benefits and statutory entitlements, job insecurity, low wages, and high risks of ill‐health. It is shaped by employment status (i.e., self‐employment or wage work), form of employment (i.e. temporary or permanent, part‐time or full‐time), and dimensions of labour market insecurity as well as social context (such as occupation industry and geography) and social location (the interaction between social relations, such as ‘gender’ and ‘race’ and political and economic conditions)’7 ‘This understanding of precarious employment brings together legal, economic, political, psychological, sociological, and statistical insights. These distinct perspectives allow for the analysis of precarious employment at multiple levels… ‘8 There is hardly any doubt that Vosko is right in highlighting the multidimensionality of the concept of precariousness. In fact, Vosko’s definition and approach is currently attracting a considerable amount of attention.9 There are however other conceptualisations of the notion of ‘precariousness’ and precarious work, you may want to consider. Important authors such as Fudge and Owens identify ‘precarious work’ as ‘work that departs from the normative model of the standard employment relationship (which is a full‐time and year‐round employment relationship for 6
L. F. Vosko (ed.), Precarious Employment: Understanding Labour Market Insecurity in Canada (McGill‐Queen's University Press, 2006), at 16. 7
Ibid., 3‐4. 8
Ibid., 12. 9
See J. Evans and E. Gibb, Moving from Precarious Employment to Decent Work (ILO, Geneva, 2009), at 16‐19. Available at http://www.gurn.info/en/discussion‐papers/no13‐
dec09‐moving‐from‐precarious‐employment‐to‐decent‐work 6
an indefinite duration with a single employer) and is poorly paid and incapable of sustaining a household’.10 They also note that ‘Precarious work tends to be associated with … part‐time employment, self‐
employment, fixed term work, temporary work, on‐call work, home working, and telecommuting, which are united more by their divergence from the standard employment relationship (…) than by any common features.’11 A recent report by the European Parliament’s Committee on Women’s Rights and Gender Equality (5 October 2010), provided the following definition of precarious work, which while mainly building on the notion of ‘non‐standard’ employment, attached to it a further series of characterisations: ‘Precarious work refers to a type of ‘non‐standard’ employment mainly characterised by the following: ∙ Little or no job security due to the non‐permanent, often casual form of employment with contracts containing poor conditions or no written contract like temporary, involuntary part‐time contract, uncertain working hours, changing functions at the employer’s will, ∙ Low level of payment, which can even be unofficial and uncertain, ∙ Lack of social protection rights and employment benefits, ∙ No protection against discrimination, ∙ Limited or no prospect for advancement in the labour market, ∙ Workers do not have collective representation, ∙ Work environment without minimum safety and health standards’.12 There is no doubt that there is a strong correlation between the growth of atypical employment and the growth of precariousness, though according to many the two terms are not necessarily synonymous ones. A recent ILO report noted that ‘The definitions of “precarious” and “atypical” overlap, but are not synonymous. “Precarious” work refers to “atypical” work that is involuntary – the temporary worker without any employment security, the part‐time worker without any pro‐rated benefits of a full‐time job, etc.’ 13 The idea that elements of choice – or rather of the lack of it – may transform into ‘precarious work’ some forms of atypical work has been present for some time. The Employment in Europe 2007 Report noted that 10
J. Fudge and R. Owens, ‘Precarious Work, Women, and the new Economy: The Challenges to Legal Norms’, J. Fudge and R. Owens (eds), Precarious Work, Women and the New Economy (Hart, Oxford, 2006), 3. 11
Ibid., 12. 12
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=‐//EP//NONSGML+REPORT+A7‐
2010‐0264+0+DOC+PDF+V0//EN 13
Employment policies for social justice and a fair globalization (ILO, Geneva, 2010), p. 35. 7
‘The question whether temporary and part‐time contracts need to be considered as precarious also depends on the degree to which this situation is involuntary – how much of it is because someone would have liked to work in a permanent or fulltime job, but could not find one’.14 But other research does not necessarily equate precariousness exclusively with the ‘involuntariness’ of atypical work. As noted by Raitano, the ‘distinction between flexibility and precariousness is first of all related to the duration of someone’s employment in a flexible form’ of work.15 So for authors such as Raitano, precariousness does not necessarily derive from involuntariness, but rather from the protracted persistence in an atypical form of employment and the absence of transitions to more secure forms of employment. The tendency to see precariousness in terms of work departing from the standard employment relationship model, is present in other research and policy papers too. Often the approach is neither descriptive nor heuristic in character, but has declaredly prescriptive ambitions. According to the definition implicit in the quote below, which is drawn from the 2006 EU Commission Green Paper, the term effectively mirrors the ‘insiders’ v ‘outsiders’ debate. ‘In 2003 the report to the European Council from the European Employment Task Force, chaired by Wim Kok, observed that a two‐tier labour market might emerge divided between permanently employed "insiders" and "outsiders", including those unemployed and detached from the labour market, as well as those precariously and informally employed. The latter occupy a grey area where basic employment or social protection rights may be significantly reduced, giving rise to a situation of uncertainty about future employment prospects and also affecting crucial choices in their private lives (e.g. securing accommodation, planning a family, etc). Recourse to alternative forms of employment could further increase in the absence of moves to adapt the standard employment contract to facilitate greater flexibility to both workers and enterprises alike. Accordingly, the Task Force urged Member States to assess, and where necessary alter, the level of flexibility provided in standard contracts in areas such as periods of notice, costs and procedures for individual or collective dismissal, or the definition of unfair dismissal’.16 A similar point was made by the Employment in Europe 2007 Report, suggesting that 14
European Commission, Employment in Europe 2007 , 47. M. Raitano, ‘La segmentazione del mercato del lavoro come vincolo alla flexicurity: il caso italiano’ (CRISS Working Paper, April 2008), 16. 16
European Commission, ‘Green Paper ‐ Modernising labour law to meet the challenges of the 21st century’, COM(2006) 708 final, at 3. Available at http://eur‐
lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0708en01.pdf 15
8
‘Strict EPL17 on regular contracts has been shown to contribute to labour market segmentation, high turnover for temporary employment, and precarious employment situations involving temporary contracts with low protection and limited prospects for permanent employment. We will further discuss the implications of this type of approach in Part III of the present document. But in concluding this first part there are a few points you may wish to consider. Firstly, there is no single and universally accepted, definition of ‘precarious work’. This is something which clearly emerges both from national and international surveys of precariousness and associated phenomena, and has been noted by several authors.18 As noted above, some definitions are inherently wider than others, some are more contextual and multidimensional, and some are underpinned by different normative and policy ambitions. Secondly, the general consensus is that precariousness in work, whilst hard to measure, is a growing phenomenon. As noted by the Head of the Italian statistical Office, ISTAT, ‘the notion of precariousness is not clear … if there were a clear definition of what one understands for precariousness and what are the variables that identify it, it would then be easier to provide statistical answers’.19 When one is implicitly or explicitly juxtaposing precariousness with the growth of atypical work, then by measuring the relative growth of atypical work contracts or relations, it is possible to have a rough quantitative estimate of the growth of the precariousness phenomenon.20 A 2004 comparative survey of precarious employment noted that ‘if we take the category of ‘low quality jobs’ as defined by the EC in the 2001 Employment in Europe report as ‘precarious jobs’, it has to be said that one quarter of all jobs in the EU can be considered as precarious or low quality jobs’.21 17
Employment protection legislation. 18
Cf. for instance, J. Fudge and R. Owen’, Precarious Work, Women, and the new Economy: The Challenges to Legal Norms’, J. Fudge and R. Owens (eds), Precarious Work, Women and the New Economy (Hart, Oxford, 2006), 10; J‐C Barbier et al., Defining And Assessing Precarious Employment In Europe : A Review Of Main Studies And Surveys A Tentative Approach To Precarious Employment In France (2002), at 93, available at http://www.cee‐
recherche.fr/fr/fiches_chercheurs/texte_pdf/barbier/wp11‐Fra.pdf 19
XI Commissione, Parlamento della Repubblica Italiana, Indagine conoscitiva sulle cause e le dimensioni del precariato nel mondo del lavoro, Seduta del 7 Novembre 2006, available at http://legxv.camera.it/_dati/lavori/stencomm/11/indag/precariato/2006/1107/INTERO.pdf 20
For some useful statistics of this kind, cf. Employment policies for social justice and a fair globalization (ILO, Geneva, 2010), p. 35‐36, referring to the terms ‘precarious’ and ‘atypical’ as ‘overlapping’. 21
EC Commission, Precarious Employment in Europe: A Comparative Study of Labour Market Related Risks in Flexible Economies (2004), page 10. Available at ftp://ftp.cordis.europa.eu/pub/citizens/docs/kina21250ens_final_esope.pdf 9
Thirdly, and in relation with the previous point, the concept of precarious work is strongly interlinked with the growth of atypical or non‐standard work, and according to some definitions may well overlap with it. Some definitions and concepts tend to stress more than other that while this overlap exists, the two concepts may differ for a variety of factors, ranging from elements of ‘choice’ of work, to more subjective or psychological22 considerations. Other authors believe that precariousness is not necessary correlated to subjective elements, such as ‘choice’ or self‐perception, but rather to more objective ones, such as for instance the prolonged continuation or renewal of successive atypical contracts. Very often the precariousness discourse is cast in terms of the emergence of ‘dual labour markets’ and the ‘insiders v outsiders’ dichotomy. Fourthly, and finally, some definitions take a more holistic approach, that looks beyond the forms or contractual typologies of employment and directly assess or consider the extent to which any particular form of employment or work is subject to elements of precariousness. Part II – Manifestations of precarious work in Europe When it comes to manifestations of precarious work, the consensus amongst experts seems to be that the regional and national variations evidenced in the first part of this document are somewhat, though not entirely, superseded, and some common patterns emerge. But it is also clear that the residual differences matter. In a work covering precarious work in Australia, Canada, and the UK, Vosko noted that ‘Manifestations of precarious work are similar across these countries: they include job insecurity, low wages, limited social benefits and statutory entitlements, and a lack of control over the labour process. In each case, precarious work is also gendered. At the same time, there are important differences’.23 We will begin by identifying some key generic manifestations, and will then move on to offer a survey of some relevant more specific national and European manifestations. 22
J‐C Barbier et al., Defining And Assessing Precarious Employment In Europe: A Review Of Main Studies And Surveys A Tentative Approach To Precarious Employment In France (2002), 34‐35. 23
http://dsp‐psd.pwgsc.gc.ca/Collection/JL2‐27‐2004E.pdf 10
II. a. Common Manifestations A number of European studies on the topic of precariousness have indicated that, in spite of a number of national variations, some common manifestations of precariousness do arise among European countries. Already in 1989, Rodgers had highlighted that precarious work was characterised by four dimensions of precariousness. A ‘temporal precariousness’ with implications for ‘the degree of certainty over the continuity of employment’. An ‘organizational dimension’ pertaining to the ‘workers’ individual and collective control over work’. An ‘economic dimension’ affecting ‘pay and salary progression’. And finally a ‘social dimension’ focussing on the ‘Legal, collective or customary protection against unfair dismissal, discrimination, and unacceptable working practices; and social protection, that is, access to social security benefits covering health, accidents, unemployment insurance’.24 A 2004 European comparative study of the issue which relied on Rodgers four dimensions noted that precarious employment ‘was found to take, as one would expect from a multidimensional approach, many forms, often combining precariousness in two or more of the aforementioned four dimensions: temporary or non‐permanent employment, part‐time employment, low wage work and the working poor, undeclared work, and a variety of hybrid forms of employment combining characteristics of waged employment and self‐employment which have substantially grown in the last fifteen years such as bogus self‐employment, economically dependent work and other forms of quasi self‐employment. At the national level this variation involves different levels of both precarious employment and labour market flexibility depending, on the one hand, upon national institutional traditions and employment and welfare regimes, and, on the other, upon the relative situation of each country, e.g. in terms of competitiveness, vis‐à‐vis other countries’.25 Last but not least, precarious work seems to disproportionately manifest itself in sectors of the labour market dominated by women and the young. ‘[Precarious Employment] is highly concentrated on young persons and on less skilled workers. In addition, female workers are more likely to be found in low paid jobs and short‐term jobs while men are more likely to be in a job 24
G. Rodgers, ‘Precarious Work in Western Europe: the State of the Dabate’, in G. Rodgers and J. Rodgers (eds), Precarious Jobs in Labour Market Regulation: The Growth of Atypical Employment in Western Europe (International Institute of Labour Studies, Geneva, 1989), 3. 25
EC Commission, Precarious Employment in Europe: A Comparative Study of Labour Market Related Risks in Flexible Economies (2004), page 9, available at ftp://ftp.cordis.europa.eu/pub/citizens/docs/kina21250ens_final_esope.pdf 11
with unfavourable physical job conditions. The data show that the chosen indicators are significantly higher for 15 to 23 years old, and major differences between men and women in all countries. In particular the women in all countries under review but France situating themselves within the lowest income groups are more likely than men to have job tenures below one year’.26 A recent Resolution by the European Parliament also highlighted the ‘gendered nature of precarious work’.27 II. b. National specificities It is accepted that precarious work, while having some common patterns across EU countries, also tends to manifest itself slightly differently, and with different forms and statistical patterns, in each national labour market. It is beyond the scope of this handout to offer a comprehensive overview of these national manifestations, but we will refer to some relevant national examples. The 2004 Commission study noted for instance that ‘‐ In Italy, as said, economically dependent employment has been assessed at 28% of self‐employment, and more than 6% of total employment (Pedersini, 2002). But Frey and Pappadà (2003) point out that the assessment of quasi self‐employment is still far from being adequate, and that, probably, if adequately measured, Italy would rank second behind Spain in terms of “flexible jobs”. In other countries where research on economically dependent work has been carried out (Germany for our set of countries), it stands at much lower levels. Quasi self‐employment has not been sufficiently explored in the other countries to allow us to draw conclusions (…) ‐ Part‐time employment is important and growing in Germany, and significantly associated with low wages (59% of the workers on low wages are part‐timers according to Marlier and Ponthieux, op.cit.). Part‐time employment is now a structural feature of the UK female labour market. It is largely associated with low wages (Bardasi and Cornick, 2000; and Marlier and Ponthieux, op.cit.), as 67% of individuals on low wages have a part‐time contract. Part‐time employment is also growing in France although at a lower pace than in Germany. 26
EC Commission, Precarious Employment in Europe: A Comparative Study of Labour Market Related Risks in Flexible Economies (2004), page 11. 27
European Parliament resolution of 19 October 2010 on precarious women workers (2010/2018(INI). Available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7‐TA‐
2010‐0365 12
‐ Fixed‐term employment has become a structural feature of the Spanish labour market over the last two decades, as is shown by the fact that, despite vigorous measures (1997) for supporting the conversion of fixed term into permanent contracts, the rate has not decreased in any significant way. Fixed‐term employment is particularly associated with low wages and reduced social protection (both because of lower entitlements and because of discontinuous careers). ‐ Fixed‐term employment is also expanding in France, although it has been shown to be over‐estimated by Eurostat (Barbier et al., 2002a), and to a lesser, but still significant, extent in Germany. In the case of Germany fixed‐
term employment is, on the contrary, likely to be under‐estimated due to the difficulties in measuring marginal employment (which is counted in that category) (Düll, 2003). Individuals in so‐called “marginal” employment (less than 15 hours and less than 630 DEM per month) as a first job represented 12.1% of the total number of employees in 2000, against 11.6% in 1998. Employees in marginal employment as a second job represented 6% (8.3% in 1998) of the total number of employees; two thirds were women, and more than 80% of marginal employment was located in West Germany (Heineck and Schwarze, 2001, quoted in Scheele, 2002a). ‐ Finally, we should not forget the importance of undeclared work, which seems to have grown all over Europe (according to the synthesis study carried out by Mateman and Renooy, 2001, for the European Commission), as well as the existence of specific derogatory labour regimes, in some particular sectors and countries, which provide explicitly lower labour rights than the standard employment relationship, e.g. the domestic regime in Spain (1985) and the more recent one in Italy (collective agreement for domestic workers, 2001)’.28 It should be noted that this report does not equate precarious work with atypical work. Not only is precarious work not seen as coinciding with atypical work,29 but it is also seen as going beyond it, and under certain conditions, even pervading ‘standard work’. ‘With regard to precarious employment, it is also fair to say that there are a number of regular or standard jobs which are also precarious in one or more respects and to varying degrees (due in essence to the interplay between the threat of unemployment and the erosion of employment protection legislation 28
EC Commission, Precarious Employment in Europe: A Comparative Study of Labour Market Related Risks in Flexible Economies (2004), 69‐70. 29
EC Commission, Precarious Employment in Europe: A Comparative Study of Labour Market Related Risks in Flexible Economies (2004), On the distinction between the two see, in particular, pages 7‐8. 13
and institutions), but which are not counted in the statistics and as a rule glossed over in many surveys’.30 As noted by many31 there is a distinct absence of updated, qualitatively and gender disaggregated data on forms of precarious work. But to the extent that, according to most studies, there is a correlation between some forms of atypical work contracts, and precarious work, it may be useful to consider some recent statistics (2008) in respect of the spread of part‐time and fixed‐term work in some European countries. Country Part‐time employment ( % of total) Fixed‐term contracts (%) Germany 25.9 14.7 UK 11.3 4.9 France 16.9 14.2 Spain 12 29.3 Italy 14.3 13.3 EU 27 18.2 14 Source: Employment in Europe 2009 A 2010 Eurofound report on ‘Very Atypical Jobs’ contains a number of other useful supplementary statistics. The study explicitly established a link between ‘very atypical’ jobs and precariousness, by noting ‘that ‘very atypical’ forms of work are not only particularly flexible but also, by their nature, extremely precarious’.32 Country Very short part‐time work Short fixed‐term contracts Employment Zero hours based contracts on oral contracts France 674,000 workers are estimated to work fewer than 15 hours a week (data for fourth quarter of 2007) 49.4% of workers work on
fixed‐term contracts of less than six months’ duration 30.3% work on fixed‐term contracts of less than three months’ duration (2004 and 2005 data) Contracts must be written by law – no data available on the extent of informal contracts NDR Italy 499,000 No data available relating It is thought that On‐call working 30
EC Commission, Precarious Employment in Europe: A Comparative Study of Labour Market Related Risks in Flexible Economies (2004), 68‐69. 31
European Parliament resolution of 19 October 2010 on precarious women workers (2010/2018(INI). The EU Commission itself has launched a call for tender on this very topic. See Call for Tenders VT/2010/084 ‘Study on precarious work and social rights’. 32
Eurofound, Flexible forms of work: ‘very atypical’ contractual arrangements (Dublin, 2010), 4. Available at http://www.eurofound.europa.eu/docs/ewco/tn0812019s/tn0812019s.pdf 14
workers worked fewer than 10 hours a week in 2006, representing 2.17% of total employment to the overall incidence of short fixed‐term contracts – although such contracts are to be found for seasonal work, occasional work, apprenticeships or vocational training, or for temporary replacements irregular employment amounted to 12% of total employment in 2006, although it is declining slightly overall was formalised by law in 2003 – it accounts for an estimated 0.7% of employment overall UK Part‐time workers working fewer than 10 hours a week are estimated to make up about 8% of the UK workforce, although no official statistics are collected No specific data available, although 5.3% of workers worked on fixed‐term contracts in the UK during
the first quarter of 2008 No specific data available, although all employees should be given a written statement of terms and conditions of employment 5% of workplaces employed workers on an on‐call basis (Workplace Employment Relations Survey, WERS 2004) Germany Mini‐jobs up to NDR 15 hours In December 2007: _ 7,103,628 had a ‘mini‐
job’ as only employment _ 2,160,442 employees had a ‘mini‐job’ as a side job According to the NDR 4th EWCS (European Working Conditions Surveys), in 2005 3% of employees had no employment contract Spain 1.72% of the workforce were on contracts of between one and nine hours a week (2007) Over 9.1 million workers were on fixed‐term contracts of less than six months’ duration in 2007 Just over 2.4 million people were working on contracts of between one and three months’ duration NDR NDR The Netherlands 4.4% of the workforce 2.3% of the workforce worked on fixed‐term It is estimated that 5.2% of 1.1% of the workforce 15
worked on part‐time contracts of fewer than 10 hours a week in 2007 contracts of less than six months’ duration, 0.8% on contracts of less than three months’ duration, and 0.3% on contracts of less than one month’s duration (2006 data) worked on zero the workforce hours had no formal written contract contracts in 2007 in 2006 Part III – Policy debate and legal developments on precarious work in Europe This section seeks to describe the terms of the policy debate, as well as some of the legal developments at European level, concerning the protection of precarious workers. Again this should be seen as an introductory overview, with a more detailed analysis being deferred to the forthcoming sessions. EU regulation in the social sphere has interacted with the regulation of precarious work relations in several ways. This section highlights the impact of two distinct EU regulatory streams on precarious work relations, namely EU employment law and EU employment policy. EU employment law has intersected with a number of the manifestations and forms of precariousness discussed in Part II and most obviously, though not exclusively, through its efforts to regulate ‘atypical’ work. The EU/EC had the ambition of regulating ‘atypical’ work and working time at least since the 1970s (see Recommendation 75/457). A partial response to this policy drive first emerged with the adoption of Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship. But it was only in the 1990s that it finally managed to lay down a series of instruments providing for the regulation of part‐time work (Directive 97/81/EC), fixed‐term work (Directive 99/70/EC) and, more recently, temporary agency work (Directive 2008/104/EC). All these Directives on ‘atypical’ work are premised on the progressive idea of equal‐treatment between atypical workers and ‘standard’ workers with bilateral, full‐time, and open‐ended contracts of employment. A similar approach is taken by the 2002 Framework Agreement on Telework. Directives 99/70 and 2008/104, also clearly recognise that contracts of an indefinite duration are, and will continue to be, ‘the general form of employment relationship’ between employers and workers. 16
Over the next few days you will no doubt see how the level of employment protection offered by these three instruments varies considerably. Let us, for a minute, reflect on the ability of these instruments to provide a satisfactory definition of the type of workers, or type of work relations and contracts, to which their provisions ought to apply. Since these instruments seek to regulate work other than the standard employment relationship, one could reasonably expect them to be preoccupied with at least this crucial aspect of their legal construct and content. As it happens, this is hardly the case. All these instruments confer right to ‘workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State’.33 Effectively this means that if under national law a work relation does not satisfy the criteria for being a ‘contract or employment relationship’, none of the protections deriving from the EU Directive apply.34 To put it simply, the ability of these instrument in tackling the precariousness that may derive from the uncertain legal status of somebody’s employment or work contract (e.g. is the person an employee? Is the person a quasi‐
subordinate/economic dependent worker? Is she a self‐employed contractor?), is only as good as the national notions of contract or employment relationship, and this in spite of a few notably expansive interpretations afforded by the ECJ in the context of fixed‐term work relations.35 This is an issue that affects a number of other EU law instruments too, and indeed it could be argued that, with some exceptions, the flexibility inherent to a number of EU employment directives does raise several issues as to the effectiveness of the rights they nominally recognise. However, and with these important caveats in mind, it is fair to say that, by and large, EU rules on part‐time and fixed‐term work, combined with the action of the ECJ, have had an overall worker‐protective influence on the national regulation of some precarious work relations. On the other hand, it is also fair to note that, ultimately, their impact on limiting the precarization of work has been rather disappointing. EU employment policy has been just as relevant in informing the national approaches towards the regulation of precarious work relations, though admittedly its influence has been more subtle than the one of EU employment law. Particularly since the launch of the European Employment Strategy (EES) in 1997, Member States have been encouraged to ‘examine the possibility of incorporating … more adaptable types of contract, taking into account the fact that forms of employment are increasingly diverse’.36 By 2002, the European Commission noted that this 33
Clause 2(1) of Directive 97/81/EC. This is something that the ECJ itself accepted, following its jurisprudence developed since Case 105/84, Danmols Inventar. 35
Cf cases such as Case C‐212/04, Adeneler and Others [2006] ECR I‐6057, paragraphs 54 to 57 and Case C‐53/04, Marrosu and Sardino [2006] ECR I‐7213, paragraphs 40 to 43. 36
1998 Employment Guidelines, Council Resolution of 15 December 1997. 34
17
encouragement to pursue the ‘adaptability’ of businesses through the introduction new and flexible work contracts, had brought to the fore a series of negative consequences for workers’ security. 37 But the strategic objective of the European Employment Strategy remained that of promoting labour market flexibility by deregulating work contracts, while pursuing ‘new forms of security’.38 ‘Security in today’s labour markets is not a matter of preserving a job for life […] security is about building and preserving people’s ability to remain and progress in the labour market’.39 In other words Member States had to ‘facilitate transitions between different statuses, such as work, training, career breaks or self‐employment (job‐to‐job insurance)’.40 The underlying rationale of these policy suggestions was that, through the deregulation of work contracts, some degree of precariousness within work relations could be outweighed by a growing sense of security deriving from a more buoyant and dynamic labour market encouraging and enhancing labour market transitions between different employment relationships and even different employment statuses. In short, precariousness in work relations, including standard work relations, was a price to pay for more overall security in the labour market, more jobs, and ultimately the promise of healthy and sustained economic growth.41 A slightly different argument developed in the context of the EES, is that of advocating a deregulation of the employment protection legislation (EPL) sustaining the standard employment relationship, fur the purposes of limiting labour market segmentation and the ‘insiders v outsiders’ dilemma. A similar concern was shared by the 2007 Employment in Europe Report, which noted that ‘Strict EPL on regular contracts has been shown to contribute to labour market segmentation, high turnover for temporary employment, and precarious employment situations involving temporary contracts with low protection and limited prospects for permanent employment’42 37
Commission, ‘Taking stock of five years of the European Employment Strategy’, COM (2002) 416 final, p. 14. 38
Wim Kok, Jobs, Jobs, Jobs – Creating More Employment in Europe (Brussels, 2003), 28. Available at http://www.mol.fi/mol/en/99_pdf/en/90_publications/employment_taskforce_report2003.
pdf 39
Ibid. 40
Ibid, 27. 41
Cf. Wim Kok, Facing the Challenge – The Lisbon Strategy for Growth and Employment (2004). 42
EU Commission, Employment in Europe 2007, at 51. 18
This counterintuitive set of suggestions could be summarised as seeking the deregulation of standard labour contracts in order to limit the incentive for employers to hire their workforce through atypical and precarious work contracts or arrangements. The ‘Flexicurity Pathways’ agenda, first introduced in 2007, did not appear to bring any substantive change of direction to the employment policy rationales discussed above.43 Indeed the original ‘flexicurity’ approach appeared to be reinforcing some of these considerations, by reference to suggestions closely resembling the emerging French idea of ‘contrat unique’.44 ‘A complementary approach would be to redesign the open‐ended contract. In this option, workers would have an open‐ended contract from the very beginning of the employment relationship with their employer and would no longer, as is now often the case, start with a series of fixed‐term or agency contracts. The open‐ended contract would be redesigned to include a progressive build‐up of job protection. It would start with a basic level of job protection, and protection would build up progressively with job tenure, until ‘full’ protection is achieved. This ‘tenure track approach’ would guarantee automatic progress into better contractual conditions; the risk of getting ‘stuck’ in less protected contracts would thus be reduced. Redesigning rules for economic dismissals would be envisaged for open‐
ended contracts, addressing bureaucracy, length of procedures, improving transparency of outcomes, and making the process more reliable’45 ‘Workers on open‐ended contracts would benefit from increased investments in their training and early action in case of threatened redundancy. If these conditions are in place, there is less need to apply strict rules with respect to economic dismissals’46 43
Cf. Council of the EU, ‘Implementation of the common principles of flexicurity within the framework of the 2008‐2010 round of the Lisbon Strategy ‐ Report by the "flexicurity" mission’. 44
As developed in the ‘Cahuc‐Karamarz’ proposal; cf. P. Cahuc et F. Kramarz, De la précarité à la mobilité: vers une Sécurité sociale professionnelle (La Documentation Française. Paris, 2004). 45
EC Commission, Towards Common Principles of Flexicurity: More and Better Jobs Through Flexibility and Security (July 2007), 28‐29. It should be noted that in November 2007 the European Parliament adopted a resolution taking a rather more benevolent view in respect of EPL. Cf. EP European Parliament resolution of 29 November 2007 on Common Principles of Flexicurity (2007/2209(INI). 46
Ibid., 34. 19
The new ‘Europe 2020’ agenda,47 introduced after the economic crisis had permanently derailed the Lisbon Agenda, may provide an opportunity for rethinking some of the earlier deregulatory dogmas. The goal is still that of reconciling flexibility and security, but nowhere do the EU institutions clarify what exactly each term entails, a practice typical of many processes of reflexive regulation. The latest Integrated Guideline 7 of the ‘Europe 2020’ agenda, suggests that ‘Guideline 7: Increasing labour market participation and reducing structural unemployment Member States should integrate the flexicurity principles endorsed by the European Council into their labour market policies and apply them, making full use of European Social Fund support with a view to increasing labour market participation and combating segmentation and inactivity, gender inequality, whilst reducing structural unemployment. Measures to enhance flexibility and security should be both balanced and mutually reinforcing. Member States should therefore introduce a combination of flexible and reliable employment contracts, active labour market policies, effective lifelong learning, policies to promote labour mobility, and adequate social security systems to secure professional transitions accompanied by clear rights and responsibilities for the unemployed to actively seek work’.48 This partly echoed the Conclusions of the June 2009 Council conclusions, encouraging Member States to ‘Implementing adequate responses with a view to adapting, if relevant, employment and labour market provisions in the framework of the flexicurity approach in order to promote flexible but secure transitions from unemployment to employment as well as from one job to another, while supporting reliable contractual arrangements for those in work’49 The latest Council Conclusions of October 201050 approved an opinion of the Employment Committee entitled "Making transitions pay", which enlisted the following
47
EC Commission, ‘Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth’. Proposal for a COUNCIL DECISION on guidelines for the employment policies of the Member States Part II of the Europe 2020 Integrated Guidelines, COM (2010)193 final. 49
Council Conclusions on Flexicurity in times of crisis 2947th EMPLOYMENT, SOCIAL POLICY, HEALTH AND CONSUMER AFFAIRS Council meeting Luxembourg, 8 June 2009, at 5. 50
3039th Council meeting Employment, Social Policy, Health and Consumer Affairs Luxembourg, 21 October 2010. Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/117263.pdf 48
20
Conditions to "making transitions pay" The following interlinked conditions are considered crucial for making transitions pay: o Labour market transparency and accessibility of information for all enabling individuals to make informed training, job search and career choices. o Training opportunities for all, including the low skilled, favouring the acquisition of the right skills and progress in their working lives. The offer of training must also respond to the needs of the labour market, be timely, efficient, easily accessible, relevant and of quality. o Flexible work organisations capable of both quickly satisfying production needs and providing for conciliation of work and private responsibilities of workers. o Secured and adequate social rights during periods of transitions, providing confidence to move in and out of work and act as springboards into employment, re‐employment and selfemployment. o Accessible intermediation and career guidance services, including access for all to job vacancies published throughout the European Union. o Progress of workers into decent and quality jobs as an important principle for effective activation. These conditions should be assured through an integrated flexicurity approach at national level, combining the four components of flexicurity, with incentives to reduce unemployment and inactivity traps and should also support workers along the career path, in particular those in precarious situations.51 However, it is arguably too soon to say whether these first steps will lead to a substantial change of direction. In terms of re‐regulating European labour law, the 2006 Green Paper52 did outline possible new regulatory trajectories that could have had some positive effects in respect of addressing at least some of the aspects of precariousness discussed in the current handout. But at least for the time being any such ambitions appear to have been postponed, if not shelved altogether.53 51
EMCO, ‘Making transitions pay’ (7 Oct 2010, 14479/10) http://register.consilium.europa.eu/pdf/en/10/st14/st14479.en10.pdf 52
EC Commission, ‘Green Paper ‐ Modernising labour law to meet the challenges of the 21st century’, COM(2006) 708 final. 53
Cf. EU Commission, ‘Outcome of the Public Consultation on the Commission’s Green Paper ‘Modernising labour law to meet the challenges of the 21st century’’, COM(2007) 627 final. See also the related Press release IP/07/1584, stating clearly that ‘the Commission does not propose any new legislative initiatives’, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1584&format=HTML&age
d=1&language=EN&guiLanguage=en 21
On a more positive note, a recent European Parliament Resolution has actively suggested a re‐regulatory path for EU labour law. Among the other things, the Resolution ‘1. Points out the gendered nature of precarious employment and recalls the shift in the labour market from standard to non‐standard types of employment, making it necessary to prevent non‐standard types of employment becoming precarious work; considers that, in order to combat these problems, the Member States and social partners must be asked to align to a large extent their legislative and contractual rules on standard work and atypical work, so as to prevent the most convenient and least expensive forms of work from taking precedence, taking into account however the risks of a possible increase in undeclared work; 2. Urges the Council and the Commission to identify the characteristics of precarious employment in the guidelines for the Member States‘ employment policies and in the new gender equality strategy; 3. Calls on the Member States to take legislative measures to put an end to zero‐hour contracts, which are common in jobs typically occupied by women in sectors such as domestic work, care work, catering and the hotel industry, and to introduce extensive control instruments to regulate all types of attendance at firms and work places which are formally agreed for guidance and training purposes but which in practice are becoming a further source of abuse, concealing actual services which are provided without proper payment or protection; 4. Asks the Commission and the Member States to develop strategies on precarious work in order to emphasise decent and green jobs and incorporate gender balance; 5. Calls on the Commission and the Member States to take action in order to reduce the double burden of work on women, one of the reasons for women's over‐representation in precarious employment; calls for the improvement of the work‐life balance in regular employment to reduce precarious employment; (…) 6. Expresses disappointment that the EU employment law package and the aforementioned directives on fixed‐term, part‐time and temporary agency work do not adequately address the precarious nature of employment; calls, therefore, on the Commission and the Member States to take further specific legislative measures, such as introducing binding minimum social standards for employees and granting all employees equal access to social services and benefits, including maternity leave, health care and retirement pensions, as well as to education and training, regardless of their employment conditions; 22
calls on Member States, in addition, to implement legislation ensuring reasonable limitation of working hours, rest and leisure for workers;’54 In another recent development, the Communication ‘Towards a Single Market Act’ the Commission has suggested that ‘the sense of disillusionment felt by some towards the internal market may also be the result of the perception that successive liberalisations have been carried out at the cost of the social rights acquired by various economic operators. The Lisbon Treaty, and the affirmation of the concept of a 'highly competitive social market economy' as one of its key objectives, require us to adopt a more all‐embracing view of the single market. (…). The freedoms afforded by a single market must benefit both the strongest and the weakest. (…) Proposal No 29: Pursuant to its new strategy for the effective implementation of the Charter of Fundamental Rights by the European Union21, the Commission will ensure that the rights guaranteed in the Charter, including the right to take collective action, are taken into account. The Commission will first of all conduct an in‐depth analysis of the social impact of all proposed legislation concerning the single market.55 If the EU were to become serious about ‘Mainstreaming Fundamental Rights’ in its employment laws and policies, as also advocated by the European Commission,56 this could have a positive impact on the reduction or elimination of precariousness in work relations. To sum up, the EU has had a complex relationship with the law and policy that lead or contribute to the reduction of precariousness. On the one hand several of its regulatory activities have sought to limit or curb some of the most obvious manifestations of precariousness, although admittedly some of its actions have been less effective than one would have hoped. On the other hand, European 54
European Parliament resolution of 19 October 2010 on precarious women workers (2010/2018(INI)), available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7‐TA‐
2010‐0365 55
European Commission, ‘Towards a Single Market Act for a highly competitive social market economy 50 proposals for improving our work, business and exchanges with one another’, COM(2010) 608 final, at 23, available at http://ec.europa.eu/internal_market/smact/docs/single‐market‐act_en.pdf 56
European Commission, ‘Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union’ COM (2010) 573 final, available at http://ec.europa.eu/justice/news/intro/doc/com_2010_573_en.pdf 23
employment policy has effectively encouraged some facets of precariousness, for the sake of labour market efficiency and economic growth. While the regulatory agenda of the Commission appears to be somewhat stalling since the 2006 Green Paper, the European Parliament appears to be keen on addressing ‘precarious work’ also through new legislative measures. The potential of mainstreaming Fundamental Human Rights into EU law and policy should also be highlighted as a positive development, which if seriously discharged by EU institutions, may well help in addressing the challenges raised by precarious work. It is arguably too soon to say if ‘Europe 2020’ will produce a change of direction for what used to be the EES/Lisbon Agenda. But some of its first steps may suggest some degree of soul‐searching. With hindsight, and given the current persisting global economic turmoil, the earlier EES/Lisbon Agenda assessment of the potential benefits of employment law deregulation, may have been grossly misplaced. As the Nobel laureate Joseph Stiglitz has put it: ‘we realize that many of our policy frameworks in recent decades have been making things worse […] we have weakened our automatic stabilizers by weakening social protection, and we have destabilized the economy by making wages more flexible rather than providing job security. We have created greater anxiety, which, in times like this, increases savings rates and weakens consumption. All of these so‐called reforms have made our economic system less stable and less able to weather a storm’.57 As for the earlier EES axiom that deregulation=job creation=economic growth, this is what another recent Nobel Prize winner had to say: ‘job creation is not likely to be the main contributor to growth. The link runs the other way: more growth will bring job creation’.58 Part IV – Academic debate on precarious work in Europe This part seeks to provide a brief, and inevitably selective, synopsis of some recent policy proposals developed by European academics that, explicitly or implicitly, seek to address the regulatory challenges posed by precarious work. 57
J. Stiglitz, ‘The Global Crisis, Social Protection and Jobs’ (2009), International Labour Review, 11. 58
Pissarides, Lisbon Five Years Later: What Future for European Employment and Growth? Keynote address delivered at the Austrian Presidency conference on Innovations in Labour market Policies: Challenges in Times of Globalisation, Vienna, 16‐17 February, 2006. 24
For practical reasons, we will discuss the various proposals by reference to their primary regulatory aim. As such we will focus our attention on proposals that (a) seek to expand, more or less selectively, the scope of application of employment protection legislation beyond the increasingly narrow confines of the standard contract of employment; that (b) departing from the classic ‘binary divide’ (employment v self‐employment), seek to isolate particular forms of un‐protected or under‐protected work and create a third – more homogenous – category or genus of work relations and endow it with some (but by no means all or the majority) of the employment and employability protections afforded to standard dependent employment; or that (c) seek to create a new unitary form of employment contract aimed at reducing labour market dualisms, but with a level of protection that constitutes a compromise between the highs of the standard contract of employment and the lows of many atypical and precarious forms of work. IV. a. Revisiting the reach of labour law – recasting the binary divide Over the past decades, academic analysis has suggested that a great many of the shortcomings of employment regulation are intimately connected with its reach or, more accurately, with its personal scope of application.59 While in most ‐ though not all ‐ legal systems labour law has indeed developed and/or maintained a fairly sophisticated panoply of employment protection rights, ranging from job security provisions to family‐friendly and training‐friendly entitlements, a considerable number of work relationships have developed in ways that place them partly or wholly outside the scope of these rights and entitlements, and being increasingly tainted by various elements of precariousness. Based on this diagnostic premise, several authors have suggested that a possible cure to the retrenchment of employment protection legislation, and the parallel rise of precarious work, would be an extension of some or all of its areas of regulation beyond the strict confines of the standard employment relationship based on the 59
There is an extensive literature that explores, and is premised on, this hypothesis, though authors often reach different normative results. See for instance, A. Supiot et al., Transformation of labour and future of labour law in Europe ‐ Final report (June 1998); H. W. Arthurs, Fairness at Work – Federal Labour Standards for the 21st Century ( 2006); M. J. Bernier et al., Les Besoins de Protection Sociale des Personnes en Situation de Travail non Traditionnelle (2003); A. Perulli, Economically dependent / quasi‐subordinate (parasubordinate) employment: legal, social and economic aspects (2003); P‐H Antonmattei and J‐C Sciberras, Le travailleur économiquement dépendant : quelle protection ?‐ Rapport à M. le Ministre du Travail, des Relations sociales, de la Famille et de la Solidarité (Novembre 2008); G. Ghezzi (ed.), La disciplina del mercato del lavoro, proposte per un testo unico (Ediesse, Roma, 1996). 25
subordinate, and typically bilateral, contract of employment. Proposals have ranged from minimalistic and confined extensions of specific statutes to particular types of atypical work relationships, to more ambitious ideas, often involving a more radical shake up of the labour law kaleidoscope. Alain Supiot, in the late 1990s, suggested the ‘re‐institutionalizing [of] the employment relationship’. This process would imply ‘employee status, which makes security contingent upon subordination, [being] replaced by a new labour force membership status based on a comprehensive approach to work, capable of reconciling the need for freedom and the need for security’.60 According to the author, ‘Work is distinguished from activity in that it [still] results from an obligation, whether voluntarily undertaken or compulsorily imposed. This obligation may result from a contract (employed person, self‐
employed person) or from a legal condition (civil servant, minister of religion). It may be assumed in return for payment (employment) or without payment (voluntary work, traineeship). But work always falls within a legal relationship’.61 Supiot and his colleagues thus envisaged the creation of a new two‐tier labour law system.62 The first limb is constituted by a number of universal social rights, including rights to social security, to continuing vocational training, to participating in the defining the object of the contract, and a right to professional stability, to be guaranteed to everyone irrespective of the type of work and whether salaried or non‐salaried. The second limb is supposed to introduce, with the help of collective negotiation, a number of ‘special rights’ applying to each kind of employment relationship. It should be noticed that these rights are supposed to be attached to the individual irrespectively of her position in the market, and that they are supposed to accompany her all through her working life, no matter how many interruptions from periods of unemployment and changes of occupation. To this day, Supiot’s elaborations remain some of the most sophisticated and comprehensive proposals for a refocusing of labour law beyond the confines of the contract of employment. These ideas have, directly or indirectly, spawned several reform proposals, at a domestic or supranational level. According to the critical analysis of Roccella,63 the Italian idea of adopting a Carta dei Diritti, backed by important legal authorities such as Giuliano Amato, was in many respects a conceptual product of this novel approach, seeking as it did to re‐shape labour law on the basis of 60
A. Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (OUP, Oxford, 2001), p. 52. 61
Ibid., 54. 62
A. Supiot, ‘Les nouveaux visages de la subordination’, (2000), Droit Social, 144. 63
M. Roccella, ‘Lavoro Subordinato e Lavoro Autonomo, Oggi’ (WP C.S.D.L.E. “Massimo D’Antona”.IT – 65/2008), 16‐23. 26
‘un’articolazione delle garanzie per cerchi concentrici’,64 with a number of important labour rights being attributed beyond the inner circle of ‘employment’. Other proposals have suggested a more selective extension of specific areas of labour law regulation beyond the standards contract of employment, often by reference to particular areas of supranational labour legislation. Cavalier and Upex, for instance, reached the conclusion that the emerging and complex area of European private law should adopt a broader and Community definition of the notion of ‘contract of employment’ than the one contained in most EU labour law directives on working conditions. They suggested that this definition should be based on the notion of ‘worker’ as derived from the ECJ jurisprudence on free movement of workers, and amount to ‘an employment contract is a contract whereby a person performs services of some economic value for and under the direction of another person in return for which he receives remuneration’.65 The authors noted that ‘European private law rules pertaining to employment contract are protective of employees; such protection could be impaired if a narrow definition, or a definition left to the Member States, was to be adopted’.66 More recently Jeff Kenner offered an equally normative and compelling set of suggestions, but with an even greater focus on EU labour law.67 He suggested ‘harmonizing “worker” status across EU Labour law directives’, by reference to an instrument in the form of a ‘horizontal directive to implement a commonly agreed definition of a “worker’’,68 the “Worker Status (Interpretation) Directive”’. Like Cavalier and Upex, he considers the EU free movement definition of ‘worker’ as a basis for the personal scope of this hypothetical directive, but would enrich it by reference the UK definitions of ‘worker’ as contained in s. 230(3) of the Employment Rights Act 1996, and by reference to the South African concept of ‘economically dependent worker’.69 Kenner suggests that ‘it would be extremely difficult to reach political agreement in the present climate’, on such an instrument.70 He is also conscious of the fact that ‘by focusing on securing agreement on an inclusive conception of a “worker” at EU 64
A. Perulli, ‘Lavori Atipici e Parasubordinazione tra Diritto Europeo e Situazione Italiana’ (2006) Rivista Giuridica del Lavoro ,749. 65
G. Cavalier and R. Upex, ‘The concept of Employment Contract in European Private Law’ (2006), IJCLLIR, 608. Emphasis original. 66
Ibid. 67
J. Kenner, ‘New Frontiers in EU Labour Law: From Flexicurity to Flex‐Security’, in M. Dougan and S. Currie, 50 Years of the European Treaties: Looking Back and Thinking Forward (Hart, Oxford, 2009), 279. 68
Ibid., 299. 69
Ibid., 302. 70
Ibid., 303. 27
level, the suggested directive would not address the binary divide between the dependent employee/ worker and the independent contractor [which] has been the subject of a powerful critique by Mark Freedland, who argues that the distinction is no longer coherent because of the increasingly heterogeneous nature of work relationships’.71 There is indeed a sense that any proposals based on clarifying or expanding, selectively or comprehensively, the confines of labour law by reference to new definitions of ‘employee’ or ‘worker’ that do not transcend the binary divide, could still succumb to the same interpretative quagmires that have marred the existence of the current, no doubt narrower and corroded, definitions. Partly based on this premise, the current work by Freedland and Kountouris seeks to go explicitly beyond the ‘binary divide’ of employment v self‐employment by recasting employment protection legislation around the broad notion of ‘personal work relation’.72 Workers falling within this broad notion of personal work relation would be recognised rights protecting their ‘dignity’, ‘capabilities’, and ‘stability’ at work, with these three dimensions shaping the umbrella concept of ‘personality at work’. In 2006 by the Italian academic Piergiovanni Alleva, had also advocated a (perhaps less radical) move beyond the binary divide, and argued for ‘un superamento della separazione tipologica dei rapporti e il riconoscimento di un ‘rapporto unico’, sia pure con una possibile interna articolazione di modalità di esecuzione’.73
IV. b. Ad hoc regulation for the ‘grey area’ between the binary divide Much has been written, and no doubt much more will be, on the existence of an intermediate category of workers situated in the ‘grey area’ between the archetypal contract of employment and the archetypal self‐employment contract. Variously referred to as ‘quasi‐subordinate’, ‘para‐subordinate’, ‘economically dependent’, or ‘quasi‐freelance’ workers, this third category has been conceptualised and received legal recognition in a number of European Member States, since the early 1970s.74 In 71
Ibid., 304. M. Freedland and N. Kountouris, The Legal Construction of Personal Work Relations (OUP, Oxford, 2011), Chapter 1. Forthcoming. 73
P. Alleva, ‘Nuove norme per il superamento del precariato e per la dignità del lavoro’ (2006) Quale Stato, 219. Our translation: ‘moving beyond the typological separation between relationships and recognising a ‘single relationship’, albeit with a possible internal diversification of the modalities of performance’. Available at http://www.fpcgil.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/2083 74
The Italian parasubordinati were first recognised with Law 533/1973, modifying for this purpose Article 409 of the Italian Civil Procedure Code, while the German 72
28
many national discourses, these workers have become a metaphor for precariousness. The European academic debate surrounding the concept of quasi‐subordinate workers reached new heights with the publication of the Perulli report, which after a lengthy comparative legal analysis of the notion of these forms of work, recommended the introduction and regulation of ‘quasi‐subordinate employment contracts’, and the attribution to the latter of a series of rights in terms of contractual formation, basic working conditions such as pay, contractual suspensions, the provision of ‘notice’ or ‘justified reasons’ in case of termination, the right to training and to trade union activities.75 These rights would come as an addition to the rights to health and safety at work, pensions, and training,76 but, crucially, would not amount to a full extension of labour laws to cover economically dependent workers, an option which the Perulli report explicitly labelled ‘as not very realistic and follow[ing] a “maximalistic” rationale’.77 In recent years, the ambition to regulate quasi‐subordinate work has gained ground and momentum in Europe. A 2008 study commissioned by the European Parliament noted that ‘the definition of economically‐dependent work or dependent work has been addressed by labour law in several MS (Austria, Czech Republic, Ireland, Portugal, Slovakia, Spain, United Kingdom), even though with diverse legal contents. The common feature of these definitions is that personal subordination is missing or rather loose’.78 Even legal systems like the French one, that have hitherto sought to put this particular genie back in the bottle it came from by reverting to legal presumptions of employment status, are now flirting with the idea of regulating economic dependnce. The 2008 Antonmattei‐Sciberras rapport reopened the debate in France – a legal system where, until a few years ago, the notion of economic dependence was dismissed as ‘trop imprécise’79 – by advocating ‘la création, …, d’un arbeitnehmeränliche Personenwere first ‘typified’ by section 12a of the 1974 law on collective agreements (Tarifsvertragsgesetz). 75
A. Perulli, Economically dependent / quasi‐subordinate (parasubordinate) employment: legal, social and economic aspects (2003), 118‐119. 76
Ibid. 116‐117. 77
Ibid. 116. In 2006 Piergiovanni Alleva, an Italian academic, had indeed advocated – among the other things ‐ such an extension to all worker relations characterised by economic‐
dependence. Cf. P. Alleva, ‘Nuove norme per il superamento del precariato e per la dignità del lavoro’ (2006) Quale Stato, 215; Proposta di Legge 2185/2007, Norme per il Superamento del Lavoro Precario of 29 January 2007. 78
Labour Asociados, The Impact of New Forms of Labour on Industrial Relations and the Evolution of Labour Law in the European Union (IP/A/EMPL/ST/2007‐019 9, Brussels, 2008), 9. 79
J. Pélissier, A. Supiot and A. Jeammaud, Droit du travail (Dalloz, Paris, 2000), 151. 29
statut du travailleur économiquement dépendant’.80 These workers would receive some of the protections typically accorded to subordinate employees, but crucially only a fraction – albeit an important one, with a right to notice and to severance pay amounting to 10% of their turnover with that client – of the rights granted when a contract of employment is terminated.81 There is no doubt however of the significance of the widely commented upon82 2007 Spanish Ley 20/2007, de 11 de julio, del Estatuto del Trabajo Autónomo, introducing and regulating the contractual category of ‘trabajo autónomo económicamente dependiente’.83 A detailed analysis of this law goes beyond the purposes of this document, but suffice it to say that a current Bill brought before the Italian Parliament by the senator and academic Tiziano Treu, the Disegno di Legge 2145 for a ‘Statuto dei Lavori Autonomi’, explicitly refers to it as one its sources of inspiration. It should also be pointed out that this approach is not without its detractors. When the Luxembourg Government was prompted by the 2006 Commission Green Paper to take a stance in respect of ‘The concept of ‘economically dependent work’’,84 it forcefully argued that it found ‘très artificielle l’introduction de la notion de travail économiquement dépendant qui ne serait ni du travail salarié ni du travail indépendant’. This was seen as a mere means for ‘réduire la protection liée au statut de salarié’, the problem being, in their view, the existence of ‘sham self‐employed to be requalified ex officio as salaried workers’.85 And of course there have been similar, and equally forceful critiques to the French proposals, and to the other 80
P.H. Antonmattei and J. C. Sciberras, Le travailleur économiquement dépendant: quelle protection? (Novembre 2008), 22. Cf. also P.H. Antonmattei and J. C. Sciberras, ‘Le travailleur économiquement dépendant, quelle protection ?’, (2009) Droit Social, 221. 81
P.H. Antonmattei and J. C. Sciberras, Le travailleur économiquement dépendant: quelle protection? (Novembre 2008), 20. 82
J R. Mercader Uguina and A. de la Puebla Pinilla, 'Comentario a la Ley 20/2007, de 11 de julio, del Estatuto del Trabajo Autónomo, (2007) 20, Relacione Laborales, 99; F. Valdès Dal‐
Ré and O. Leclerc, ‘Les nouvelles frontières du travail indépendant. A propos du statut du travail autonome espagnol’ (2008) RDT, 296; J. Cabeza Pereiro, ‘The Status of Self‐employed Workers in Spain’ (2008), ILR, 91. 83
Article 12 of Ley 20/2007, de 11 de julio, del Estatuto del Trabajo Autónomo. http://www.boe.es/boe/dias/2007/07/12/pdfs/A29964‐29978.pdf . This has been recently supplemented by Real Decreto 197/2009, de 29 de febrero. 84
EU Commission, Modernising labour law to meet the challenges of the 21st century, COM(2006) 708 final, 11. Emphasis original. 85
Contribution du Gouvernement du Grand‐Duché de Luxembourg au LIVRE VERT « Moderniser le droit du travail pour relever les défis du XXIe siècle » (30 March 2007), 10. Available at http://ec.europa.eu/employment_social/labour_law/answers/documents/1_2_fr.pdf 30
existing European disciplines of ‘quasi‐subordinate workers’.86 There may well be something deeply problematic with this approach, and it may be a bit counterintuitive to rely on a ‘trinary divide’ to resolve the problems created by the definitional complexities and conceptual deficiencies of the ‘binary divide’. IV.c. A reformed ‘binary divide’ – ‘single contracts’ and ‘tenure tracks’. As noted in Part III of this document, in some policy quarters the growing labour market segmentation, or ‘dualism’ as it is often referred to, is blamed for labour market underperformance, irrational choices by employers during periods of economic recession, inter‐generational and gendered inequalities, ‘insiders’ v ‘outsiders’ injustices, and the growth of precarious work. A number of relatively recent reform proposals, variably referred to as ‘contrat unique’,87 ‘contratto unico’,88 ‘contrato único’89 ‘tenure track’90 contracts, have the objective of replacing both ‘atypical’ and ‘standard’ contracts, and their distinctive regulations, with a new and unifying contractual structure which, while in principle of an indefinite duration, would derogate from standard employment protection legislation (‘EPL’) and provide for an progressive accrual of rights according to 86
M.G. Garofalo, ‘La legge delega sul mercato del lavoro: prime osservazioni’,(2003), RGL, 362; M. Hascöet, ‘Le contrat de projet : le nouveau visage de la parasubordination en Italie’ (2007), Droit Social, 879; M. Pedrazzoli, ‘Le complicazioni dell’inutilità: note critiche sul lavoro a progetto’, in L. Mariucci (ed.), Dopo la flessibilità, cosa? Le nuove politiche del lavoro (Il Mulino, Bologna, 2006) 119; R. Dalmasso, ‘Salariés, travailleurs indépendants et travailleurs économiquement dépendants : vers une troisième catégorie juridique régissant la relation de travail ?’ (2009) available at http://gree.univ‐
nancy2.fr/digitalAssets/51826_DALMASSO.pdf 87
P. Cahuc et F. Kramarz, De la précarité à la mobilité : vers une Sécurité sociale professionnelle (La Documentation française. Paris, 2004). On the basis of these proposals the UMP produced the report Repenser le contrat de travail en instaurant un contrat de travail unique available at http://www.u‐m‐
p.org/site/index.php/ump/debattre/dossiers/economie_emploi/repenser_le_contrat_de_tr
avail_en_instaurant_un_contrat_de_travail_unique . 88
Disegno di Legge n. 1481/2009, ‘Disposizioni per il superamento del dualismo del mercato del lavoro, la promozione del lavoro stabile in strutture produttive flessibili e la garanzia di pari opportunità nel lavoro per le nuove generazioni’. See also, T. Boeri and P. Garibaldi, Un Nuovo Contratto per Tutti (Chiarelettere, Milano, 2008), 89
Propuesta para la reactivación laboral en España, available at http://www.crisis09.es/propuesta/. Also available in English at http://www.crisis09.es/PDF/restart‐the‐labor‐market.pdf 90
J. Kenner, ‘New Frontiers in EU Labour Law: From Flexicurity to. Flex‐Security’, in M. Dougan and S. Currie, 50 Years of the European Treaties: Looking Back and Thinking Forward (Hart, Oxford, 2009), 305. 31
seniority and continuity in employment. As noted above, there has been substantial support from some European quarters for this third type of deregulatory approach, with the 2007 Flexicurity Pathways Report overtly suggesting that ‘[t]he flexibility of standard contracts and the security of non‐standard contracts could be enhanced by having a system where certain entitlements (on top of the basics) and elements of protection are being built up gradually’.91 The various aforementioned proposals differ, and differ considerably, in respect of their personal scope of application, and also of the details of the protection afforded to the single contracts, the pace at which the various levels of protection would accrue during the tenure of the relationship, and the role foreseen for active and passive labour market instrument in sustaining transitions between contracts. Some of these proposals, for instance the Italian proposal advanced by Professor Pietro Ichino and contained in the Disegno di Legge n. 1481/2009, involve a radical increase in the role and provision of active labour market policies, imitating the ‘Danish’ notion of flexicurity, which may require substantial adjustments in terms of tax and income tax policies, possibly beyond the levels typically accepted outside the Scandinavian region. But even apart from these problems, these are, according to some,92 a particularly troublesome set of proposals. Even assuming that a real ‘unification’ could take place, something that would presumably require EU level intervention and the amendment of some of the ‘atypical work’ directives, the result of the implementation of these proposals would carry the risk of diluting the labour law protections currently enjoyed by the majority of workers on standard contracts, without solving the structural problems deriving from the existence of the ‘binary divide’ between employment and self‐employment. Conclusions What transpired from this overview of conceptual definitions and policy approaches is that ‘precarious work’ is a complex, contested, and multidimensional concept. This document has offered a series of alternative definitions of the term, some of its more common and country specific manifestations, and has discussed the ways in which the EU and, to a more limited extent, academic debate has engaged with precariousness at work and it policy underpinnings. 91
European Expert Group on Flexicurity, Flexicurity Pathways – Turning Hurdles into Stepping Stones (June 2007), 12. See also explicit references at pp. 32, 35. 92
L. Cavallaro and D. Palma, ‘Come (non) uscire dal dualismo del mercato del lavoro: note critiche sulla proposta di contratto unico a tutele crescent’ (2008) Rivista Italiana di Diritto del Lavoro, 507–528. 32