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

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

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

4. Issues for discussion Labour law protects who?
Who is an employee becomes a crucial issue for labour law & for workers protection and union membership
What does denial of employment relationship do?
- Precarious employment, Unprotected worker,
- Increase in legal disputes
- Shifting of business risks & liabilities from employer to worker,
society & govt (in case of accident, for social security, employment)
- what else?

5. What is PRECARIOUS WORK?
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.
It pits workers against each other to undermine full time permanent employment - undermines labour law & rights of workers
Women, youth & migrants - overrepresented in precarious work throughout the world

6. 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

7. Gaps in labour law
labour laws based on the assumption of employer-employee relationship BUT most of the new employment is contractual or outsourced, where –
- employment is offered not as appointment but as assignment (as in a client-supplier relationship) - proving identity as workers difficult, what to talk of establishing employer - employee relationship.
Many benefits under labour law depend on long term employment/regular status (such as social security, maternity benefits, paid leave)
Inadequate coverage of employment relationships in informal economy
Issue: How do we make laws, regulations & their interpretation compatible with Decent Work objectives of the country.

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

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

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

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

12. Determination of Employment Relationship
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 on workers
In consultation with W & E organizations, provide that workers with certain characteristics in general or in a particular sector will be deemed to be either employed or self –employed.

13. Determination of Employment Relationship
National law/regulations should 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

14. 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?

15. Other measures to be taken
Settlement of disputes – effective access
Measures to ensure compliance & respect for national laws/policy – labour inspection services, collaboration with social security administration & tax authorities
Remove incentives to disguise an employment relationship
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

16. 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.

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

18. Issues for discussion
Does your labour law provide for minimum labour standards guaranteed to all workers?
Labour law & Precarious work (contract, casual, agency workers) – what rights do these workers have? What rights does enterprise unions have in regard to these workers?
What are the ‘means’ available to unions to enforce workers rights (especially rights to organize & negotiate)?
Given that nature of employment is flexible, contractual, precarious, what implications it has for TU law in your country (formation of a union)