Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T12:40:05.430Z Has data issue: false hasContentIssue false
  • English
  • Français

Equality through precarious work regulation: lessons from the domestic work debates in defence of the Standard Employment Relationship

Published online by Cambridge University Press:  23 December 2014

Deirdre McCann
Deirdre McCann*
Affiliation:
Durham Law School. Email: [email protected].
*
[email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Precarious work is a crucial impediment to substantive equality. This paper examines the regulation of precariousness in the light of two recent trends: the casualisation of employment in the wake of the crisis, and global efforts to regulate domestic work (e.g. ILO Domestic Workers Convention (No 189)). It takes these developments as an opportunity to explore the effective regulation of contemporary labour markets, and in particular the role of the Standard Employment Relationship (SER). The paper returns to two prominent accounts of the SER: Vosko's critique of SER-centrism in non-standard work regulation and Bosch's notion of the flexible-SER. It argues that the domestic work debates confirm the value of a modernised SER in its temporal dimensions. Yet the literature on precarious work tends to focus on regulatory settings in which the standard model remains dominant. The key contemporary challenge is to identify strategies that will embed this model in settings in which it is in decline or was never deep-rooted. Drawing on the notion of ‘reconstructive labour law’, the paper argues for innovative legal mechanisms that prompt the construction of flexibilised SER-type relationships. It concludes, however, that for these strategies to be effective, casualisation must be identified not only in contractual arrangements but also in working-time practices.

Type
Research Article
Information
International Journal of Law in Context , Volume 10 , Issue 4 , December 2014 , pp. 507 - 521
Copyright
Copyright © Cambridge University Press 2014 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Arthurs, Harry W. (2006) Fairness at Work: Federal Labour Standards for the 21st Century. Ottawa: Human Resources and Skills Development Canada.Google Scholar
Arup, Christopher, Gahan, Peter, Howe, John, Johnstone, Richard, Mitchell, Richard and O'donnell, Anthony (eds) (2006) Labour Law and Labour Market Regulation Sydney: Federation Press.Google Scholar
Bosch, Gerhard (2004) ‘Towards a New Standard Employment Relationship in Western Europe’, British Journal of Industrial Relations 42: 617–636.Google Scholar
Burchell, Brendan, Deakin, Simon and Honey, Sheila (1999) The Employment Status of Individuals in Non-standard Employment. London: Department of Trade and Industry (UK).Google Scholar
Clement, Wallace, Mathieu, Sophie, Prus, Steven and Uckardesler, Emre (2009) ‘Precarious Lives in the New Economy: Comparative Intersectional Analysis’, in Vosko, Leah F., MacDonald, Martha and Campbell, Ian (eds), Gender and the Contours of Precarious Employment. London / New York: Routledge, 240–255.Google Scholar
Commission of the european communities (2003) Report by the Commission's Services on the Implementation of Council Directive 97/81/EC of 17 December 1997 concerning the Framework Agreement on Part-Time Work Concluded by UNICE, European Centre of Employers and Enterprises Providing Public Services (CEEP) and the European Trade Union Confederation (ETUC). Brussels: Commission of the European Communities.Google Scholar
Countouris, Nicola and Horton, Rachel (2009) ‘The Temporary Agency Work Directive: Another Broken Promise?’ Industrial Law Journal 38: 329–338.Google Scholar
Davies, A. C. L. (2007) ‘The Contract for Intermittent Employment,’ Industrial Law Journal 36: 102–118.Google Scholar
Department for business, innovation and skills (2014) Zero Hours Employment Contracts – Banning Exclusivity Clauses: Tackling Avoidance, online <https://www.gov.uk/government/consultations/zero-hours-employment-contracts-exclusivity-clause-ban-avoidance> (last accessed 24 October 2014).+(last+accessed+24+October+2014).>Google Scholar
European parliament (2010) Legislative Resolution of 20 October 2010 on the Proposal for a Directive of the European Parliament and of the Council Amending Council Directive 92/85/EEC on the Introduction of Measures to Encourage Improvements in the Safety and Health at Work of Pregnant Workers and Workers who have Recently Given Birth or are Breastfeeding. Luxembourg: European Parliament.Google Scholar
Ewing, Keith (ed.) (1996) Working Life: A New Perspective on Labour Law. London: Institute of Employment Rights.Google Scholar
Fenwick, Colin, Howe, John, Marshall, Shelley and Landau, Ingrid (2007) Labour and Labour-Related Laws in Micro and Small Enterprises: Innovative Regulatory Approaches. Geneva: ILO.Google Scholar
Fredman, Sandra (1997) ‘Labour Law in Flux: The Changing Composition of the Workforce,’ Industrial Law Journal 26: 337–352.CrossRefGoogle Scholar
Fredman, Sandra (2006) ‘Precarious Norms for Precarious Workers’, in Fudge, Judy and Owens, Rosemary (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms. Oxford: Hart, 176–200.Google Scholar
Freedland, Mark (2014) ‘The Regulation of Casual Work and the Problematical Idea of the “Zero Hours Contract”’, online <http://ohrh.law.ox.ac.uk/the-regulation-of-casual-work-and-the-problematical-idea-of-the-zero-hours-contract/> (last accessed 17 July 2014).+(last+accessed+17+July+2014).>Google Scholar
Frey, Diane F. (2011) ‘A Diagnostic Methodology for Regulating Decent Work’, in Lee, Sangheon and McCann, Deirdre (eds), Regulating for Decent Work: New Directions in Labour Market Regulation. Basingstoke/Geneva: Palgrave MacMillan/ILO, 339–364.Google Scholar
Fudge, Judy and Owens, Rosemary (eds) (2006) Precarious Work, Women, and the New Economy: The Challenge to Legal Norms. Oxford/Portland, OR: Hart.Google Scholar
Ghosh, Jayati (2013) Economic Crises and Women's Work: Exploring Progressive Strategies in a Rapidly Changing Global Environment. New York, NY: UN Women.Google Scholar
Hepple, Bob (1995) ‘The Future of Labour Law’, Industrial Law Journal 24: 303–322.Google Scholar
Howe, John (2006) ‘“Money and Favours”: Government Deployment of Public Wealth as an Instrument of Labour Regulation’, in Arup et al. (2006), 167–186.Google Scholar
Ilo (International Labour Organization) (1994) Record of Proceedings International Labour Conference 81st Session. Geneva: ILO.Google Scholar
Ilo (International Labour Organization) (1999) Decent Work. Geneva: ILO.Google Scholar
Ilo (International Labour Organization) (2009) Decent Work for Domestic Workers. Report IV(2), International Labour Conference, 99th Session. Geneva: ILO.Google Scholar
Ilo (International Labour Organization) (2011) The Global Crisis: Causes, Response and Challenges. Geneva: ILO.Google Scholar
Ilo (International Labour Organization) (2012) Eurozone Job Crisis: Trends and Policy Responses. Geneva: International Institute of Labour Studies.Google Scholar
Ilo (International Labour Organization) (2013) Domestic Workers Across the World: Global and Regional Statistics and the Extent of Legal Protection. Geneva: ILO.Google Scholar
Lee, Sangheon and Mccann, Deirdre (eds) (2011) Regulating for Decent Work: New Directions in Labour Market Regulation. London/Geneva: Palgrave Macmillan/ILO.CrossRefGoogle Scholar
Mccann, Deirdre (2008) Regulating Flexible Work. Oxford: Oxford University Press.Google Scholar
Mccann, Deirdre (2012) ‘New Frontiers of Regulation: Domestic Work, Working Conditions and the Holistic Assessment of Non-Standard Work Norms’, Comparative Labor Law and Policy Journal 34(1): 167–192.Google Scholar
Mccann, Deirdre, Lee, Sangheon, Belser, Patrick, Fenwick, Colin, Howe, John and Luebker, Malte (2014) Creative Labour Regulation: Indeterminacy and Protection in an Uncertain World. London/Geneva: Palgrave Macmillan/ILO.Google Scholar
Mccann, Deirdre and Murray, Jillian (2010) The Legal Regulation of Working Time in Domestic Work. Geneva: ILO.Google Scholar
Mccann, Deirdre and Murray, Jill (2014) ‘Prompting Formalisation Through Labour Market Regulation: A “Framed Flexibility” Model for Domestic Work’, Industrial Law Journal 43(3): 319–348.CrossRefGoogle Scholar
Mccolgan, Aileen (2000) ‘Recent Legislation: Missing the Point? The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000, No 1551)’, Industrial Law Journal 29: 260–267.Google Scholar
Murray, Jillian (1999) ‘Normalising Temporary Work’, Industrial Law Journal 28: 269–275.Google Scholar
Rubery, Jill (2011) ‘Reconstruction Amid Deconstruction: Or Why We Need More of the Social in European Social Models’, Work, Employment and Society 25: 658–674.Google Scholar
Teklè, Tzehainesh (ed.) (2010) Labour Law and Worker Protection in Developing Countries. Oxford: Hart.Google Scholar
Vosko, Leah F. (2006) ‘Gender, Precarious Work, and the International Labour Code: The Ghost in the ILO Closet’, in Fudge and Owens (eds) (2006), 53–76.Google Scholar
Vosko, Leah F. (2008) ‘Temporary Work in Transnational Labour Regulation: SER-Centrism and the Risk of Exacerbating Gendered Precariousness’, Social Indicators Research 88: 131–145.CrossRefGoogle Scholar
Vosko, Leah F. (2009) ‘Less than Adequate: Regulating Temporary Agency Work in the EU in the Face of an Internal Market in Services’, Cambridge Journal of Regions, Economy, and Society 2: 1–17.Google Scholar
Vosko, Leah F. (2011) ‘Precarious Employment and the Problem of SER-Centrism in Regulating for Decent Work’, in Lee and McCann (eds) (2011), 56–90.Google Scholar