The ILO law and the present crisis

Jean-Michel Servais[1],

In public debate today on the future of labour, it becomes clear that social policies and their implementing legislation will have to adapt to more open and competitive markets, and to a way of organizing production that is at one and the same time more complex, segmented and dependent on new techniques. It is difficult indeed to question the need for adjusting the labour law provisions to the new systems of production information and communication. The problem is therefore not so much to know if, but how the remodelling takes place. Bringing social policies up to date re-ignites the debate on the optimal synthesis between the guarantees given to workers, job creation, and competitiveness, or in other words, between development and the values and rights that a given national community holds dear.

This paper focuses on the difficulties the standards of the International Labour Organisation (ILO) are facing today, in front of the set of economic and social crises that have occurred for more than two decades, especially the one that part of Europe is facing today. I will first examine the main impediments to the implementation of the international labour standards. I will then identify innovative ways of adapting them.

A. Some thoughts on the difficulties to apply the ILO law

The international labour conventions are regularly criticized for their supposed lack of realism and of concrete influence on national law and practice. It has been underlined that the number of ratifications has markedly decreased since 1989, that the rhythm of adoption of new conventions has dramatically diminished and that the preparatory discussions has lead to more difficulties; at the same time a number of non binding recommendations have been adopted since 1998 without being the complement to a convention. The main objections focus on the precarious forms of work, and especially on the growing informal sector of poor countries. It is over simplistic to just extend the scope of general labour and social security laws to specific categories of vulnerable workers, as in a majority of instances they are then not effectively executed. It does not make any difference if social legislation is limited to a number of general principles, as regulation does not possess in those cases any real significance in terms of implementation.

There is a need for a further reflection on the relevance of the ILO instruments especially with these types of work. The problems relate to the actual application of the national and international labour standards, to their control and to the socio-economic milieu in which it is applied, especially their economic cost. The problems also regard the very existence of the labour standards and its wording, question that I have discussed in other publication[2].

1. The cost of the international labour standards

The basic question raised in today’s debates is the capacity for countries, even highly industrialized ones, to bear the financial cost of ILO standards in the face of present economic challenges.

It has been pointed out, for a long time,[3] that the cost price of a product depends on numerous factors: the price of raw materials, existing markets, monetary fluctuations, investment policy, tax schemes, customs duties, manpower qualifications and managerial quality, to cite but a few. It is therefore dangerous to attempt to measure the cost of international labour standards, all the more so because they are very diverse and applied in countries which are very different from one another because of their size or industrial structure.

The research conducted, inter alia in the ILO, the World Bank and the OECD, calls for a number of additional comments. Firstly: the cost of standards, which protect the physical and psychological soundness of workers, seems quite modest in relation to the total amount of investment in machinery and equipment. In addition, the preventive measures taken against occupational diseases or accidents help to avoid expenses which are sometimes much higher, since employers and the nation as a whole pay a heavy price for diseases or accidents. Moreover, the question can be put quite differently if considered macro-economically, when all costs have to be assessed, not to mention the benefits of adequate labour and social protection in terms of labour force performance and productivity.[4] Secondly: it is useless and unsound to contest the need to adapt to developments in the economy and technological change. Adjustments are always necessary, particularly during a crisis; it is not advisable to delay them. Indeed, it is important to weigh their social effects carefully. Here again, international labour standards have an essential role to play: they should secure a time of transition for the adjustment of the workers, form a safety net for those whose employment or incomes are threatened, preserving their productive capacity; in other words, they should prevent the weak from becoming even weaker.

That is not all. The positive economic effects of social programmes on the national budget must not be ignored. Such programmes also help ensure the social peace that is vital for the economic system to function smoothly. The ILO’s Directors-General have, on several occasions, referred to the risks involved, in more general terms, in sacrificing the long term for the short term. In the difficult search for an acceptable trade-off between economic constraints (structural transformations, the struggle against disequilibrium) and social, or more simply, human imperatives (justice, equal opportunity, maintenance of a decent standard of living), standards for labour-management relations, in particular those for collective bargaining, are extremely useful. Regularly maintained relations between free employers’ and workers’ organizations and the public authorities have, in a new and effective way, on various occasions made it possible to avoid crises and economic disorder wreaking havoc and weighing heavily on employment security and incomes. The adherence and support of employers, workers and their respective associations have proven to be decisive factors in the implementation of a policy of austerity.

This being said, the applicability of international labour standards to developing countries, where a large proportion of the population often lives in deplorable conditions, has to be given further consideration although the number of ratifications of the ILO conventions by those countries continues growing. In more general terms, the problems of implementation of both national and international labour standards appear largely similar as the firsts constitutes the principal mean to introduce the seconds in the domestic legal order. Those problems concern the socio-economic context within which the standards apply as well as their control.

2. The socio-economic dimension

The level of economic development clearly plays a key role in the process of integrating international labour law into the domestic legal order. In particular, effective execution of labour standards depends on the institutional capacity of each State[5]; social security springs to mind. If the State is weak, the application of both national and international labour rules can but run into problems. In addition, the very technical character of some standards in fields such as working hours or social security only adds to the difficulties.

Another problem is that most of the international regulation has been linked to a particular production system, the one associated with large-scale mass production.[6]

The effectiveness of supervision also depends on the importance of the law, in a given society, as a means of settling disputes. American citizens turn more readily to the courts than those of East and South-East Asia, who see court action as a last resort when all efforts at conciliation have failed. Another factor is that disciplined conduct and respect for authority are more marked in some mentalities and periods than others, as evidenced by the well-known anecdote about German railway workers in the early 20th century who bought their platform tickets before joining a demonstration at a railway station platform. Times have certainly changed – where in today’s world could one imagine workers acting like that? The same holds true of religious convictions; they encourage observation of measures to protect others. When faith gives way to superstition, on the other hand, the effect can be perverse, such as in the case of the Thai workers in a knife factory who thought there was no point in wearing the requisite safety equipment once the workshop had been blessed by a Buddhist monk.

The methods chosen to implement labour standards are also predicated on the historical and social context, the power of employers’ and workers’ associations, the experience of their leaders, and the respective place of the law and collective work agreements in the system of industrial relations. More fundamentally, how a rule is worded and given effect depends on the ideas, customs, skills, arts, etc., of a people or group, that are transferred, communicated or passed along, as in or to succeeding generations; in other words, on its culture.[7] All these factors must be taken into account when considering the practical application of international labour standards. The appropriate responses remain to be found.

3. The difficulties linked to the control of the standards

The implementation of international labour standards, and of national laws and regulations used to that end, call for supervision by labour inspectors belonging to well trained, adequately staffed bodies of civil servants. Although the laws, no matter what kind, are never totally respected, in the field of labour the State’s limit to impose an obligation is quickly reached. There are sectors in which work is hidden or clandestine and where, more often, cheating and fraud are rampant, where, in any event, it is difficult to monitor application of the law. For some people passing economic difficulties apparently justify all manner of infringements. If the discrepancies are too frequent, the legal value – and the usefulness – of the labour standards can give rise to doubt; their credibility can be laid open to question.

In fact, the stumbling blocks laid in the path of the labour administrator often resemble an obstacle course. We know what they are. They have to do first with the excessive complexity and overextended scope of labour regulations, their very particular character or, more simply, their inadaptability to certain sectors of activity. Even if the law is adapted – and the labour administration has a special responsibility in this respect when it comes to preparing laws and regulations – those concerned, employers and wage earners, can ignore it, especially in small businesses. In some cases, of course, they are also reluctant to comply because it would cost too much, or for other reasons. Labour inspection, for its part, suffers even in the most prosperous countries from the traditional weaknesses of insufficient resources, understaffing (and what staff there is must sometime also perform other functions), inadequate training and lack of transportation to reach far-flung workplaces. Already in 1947 the need to remedy this situation was mentioned in ILO Convention No. 81 on labour inspection.

These obstacles prompted consideration of the methods used to implement labour laws, specifically of the means of ensuring they are binding. The most traditional measure, which immediately comes to mind, is to penalize infringements. Many ILO conventions refer to this expressly. In many countries genuine criminal codes for labour and social security law have emerged. The law punishes either the employer alone, or the workers as well, and any other person (the constructor, the seller, the renter of an inadequate machine, etc.) infringing protective provisions, by means of a fine or imprisonment. The effects – in particular the preventive effects – of these penalties are not to be underestimated, but neither should they be exaggerated, because in practice judges are often reluctant to hand down severe penalties, in particular a harsh prison sentence, and the effectiveness of fines depends on their amount and on their regular adjustment to changes in the cost of living. In addition, the wheels of justice turn slowly, making the penalty even less effective.

To remedy this situation, national legislators have conferred on the administrative authorities, sometimes on social security agencies, the power to collect fines. In fact, however, the labour inspectors themselves usually prefer – except in serious cases – to provide advice, to use persuasion, rather than to take steps that would result in a penalty.

Little by little, therefore, other procedures that are preventive rather than repressive in nature have emerged: they require prudence on the part of the employers and also of the workers (who, if truth be told, sometimes fail to take even the most basic precautions to prevent employment injuries and are little aware of the risks they take). These provisions figure for the most part in ILO Recommendation No. 31, a precursor (it dates from 1929) on the prevention of occupational accidents. They are to be found again in Recommendation No. 81 of 1947 on labour inspection, and since, more systematically, in recent instruments. They are in addition to, and do not replace, punitive measures and focus on information, training, education and advice. They are based on the very simple idea that employers and workers must be convinced of the usefulness of these standards, must understand their underlying rationale, must be made to feel the standards concern them. If the message is not put in a language that sparks their interest, if they do not feel concerned, the chances that they will comply drop sharply.

Today, many countries provide training to those who may be exposed or who may expose others to an occupational risk, information campaigns are launched in the press, using posters, brochures, lectures, instructions, etc. Other, more stimulating, measures have also emerged. For example, German law provides that social insurance contributions can rise and fall in proportion to the number of accidents in an enterprise. Italian law[8] makes some of the advantages granted to (above all small) enterprises dependent on compliance with the provisions set forth in the law or the collective agreement.

The labour administration plays a crucial role in prevention, as do non-governmental institutions, especially in terms of occupational accidents and diseases. To consider the institution as inefficient and useless in a number of developing countries is clearly an over generalization that the practice refutes[9]. Here, a special role is obviously played by employers’ and workers’ associations, which have become increasingly active down through the years. Their activities run the gamut from heightening management awareness and uncovering sources of risks, to participation, in a variety of modes (consultation, collective agreements, and so on) in the adoption of protective and preventive rules and, more broadly, a genuine health policy.

What is more, in 1981 ILO Recommendation No. 164 on occupational safety and health established the practice of several European countries in particular of appointing worker safety delegates or setting up (workers’ or joint) safety and health committees whose functions are primarily consultative. Going a step further, countries such as Luxembourg and to some extent Belgium have made workers’ delegates a part of the labour inspectorate. In several countries, the institutions in charge of fighting employment injuries include representatives of workers’ and employers’ organizations.

Furthermore multinationals that subcontract all or some of their production to countries where wages are low are increasingly concerned by the conduct of the companies they choose in respect of their staff. In addition to the ethical questions the situation poses, these large corporations are worried about their images and the threats of boycotts brandished at the instigation of unions or human rights organizations. Consumers would undoubtedly be shocked to learn that their clothes were manufactured or their fruit picked by children in abysmal conditions of health and safety, or by workers deprived of the basic right to organize and of collective bargaining. In a positive step forward, this has prompted a number of multinationals to oblige their subcontractors to accept a relatively detailed code of good conduct and to have its application monitored by genuine private inspectors hired by them. Thus, the private sector makes up for the absence of adequate protective legislation and for the shortcomings in national supervision.

The new view of the implementation of labour standards has engendered other problems, such as that of the means that could replace the law in labour regulation. The law was long considered the surest means of giving effect to protective measures. We now know, and recent ILO instruments refer to the fact explicitly, that other procedures are better suited for dealing with a given subject in a way that is concordant with the characteristics and traditions of a national society.

These new means supplement rather than replace the earlier ones: there is no dichotomy between legislation and other methods of protection. In areas such as occupational health, many countries have adopted framework laws and even constitutional provisions that contain general principles and basic standards. Very often, however, the texts alone are not enough; they must be supplemented with regulatory provisions. In addition, the labour administration frequently draws up technical ‘standards’ and practical guidelines that are not binding in and of themselves, but whose effects are nevertheless beyond contestation. Such standards can also be drawn up by specialized public institutions and social security agencies (which have an obvious interest in preventing diseases, accidents and the consequent costs). The same task falls to the employers, their associations, and trade unions in the negotiations they conduct at different levels. There is nothing new about this, but their role to that end has grown where industrial relations have been efficiently developed.

In addition, intervention by the social partners guarantees greater equality in the application of labour standards. The powers given to the administration in authoritarian political systems can lead to abuse, to anomalies and to inspections that change according to who is being inspected. The example of the former ultra-centralized regimes of Central and Eastern Europe are revelatory in this respect. Before the fall of the Berlin Wall, the implementation of an employment and labour policy in those countries comprised reams of regulations, rulings, administrative instructions, all of which had absolutely to be followed. The sheer number of prescriptions made their systematic supervision a matter of chance. In particular, the application of provisions protecting the workers left much to be desired in those countries, whose efforts were increasingly focused on greater productivity. Whatever the case may be, this accumulation of rules and the organization of those States gave the public authorities powers that were all the greater in that court independence and remedies against their decisions were limited and there was no true collective bargaining, in the traditional meaning of the word, between employers and trade unions.

Limits to the government’s powers, true independence of the courts and the social players, change the picture completely. The implementation of a labour policy, even of labour legislation, in a market economy implies, if not adhesion, at least the absence of determined opposition on the part of those to whom it applies. Acceptance replaces, to varying but very real degrees, constraint. In continental Europe, the rules of labour law are often drafted in consultation with employers and trade unions, even where there is no collective agreement. At the same time, the supervisor-public servant’s discretionary power of interpretation disappears.

The transition from a totalitarian to a laissez-faire system can also result in deregulation: “less State” also means fewer State rules and, in some cases, the development of freely negotiated collective agreements. It must nevertheless be said that fewer laws does not mean less law since the courts continue to deal with all situations. What does happen is that jurisdiction moves from the administrator to the judge, in two ways. First, since the legal texts do not cover all circumstances, the judge has greater authority to assess a situation and decide. Second, in democratic systems the courts usually have the power to monitor the administration’s acts. This is even one of their attributes.

II. Innovative ways and means to adjust international labour law to present time

The future of the international labour standards is viewed in some quarters with great pessimism, and the rapid spread of the informal sector in both industrialized and developing countries is mentioned to underline the decline of the ILO standard-setting activities. There is no doubt that a perfect and universal Social Justice, based on a totally equitable institutional framework, is out of reach. If identified, such a system would require for its implementation a sovereign World State that does not exist[10]. This does not mean that one can not search for tangible solutions which fit well with the present socio-economic environment. New actors emerge; new types of norms are or may be adopted.

1. New actors

A clear phenomenon is the rising strength of the new world players, first and foremost the multinationals. Some of them (albeit as yet only a few) no longer even have privileged ties with a specific country; their headquarters are located wherever their principal leaders are to be found at any given moment. They are sometimes accused, namely in the oil and mining industries, of escaping from any labour legislation. Regional groups, such as the European Union, Mercosur or NAFTA, constitute other new world players, Non-Governmental Organizations (NGOs) have for their part used the new communication technologies to create transnational networks which can carry great weight. All of these players have better adapted to the opening of borders and trade liberalization than the more rigidly structured public authorities and traditional employers´ and workers´ associations. Certain groups have an acknowledged ability to make them heard in the media. This is the explanation for some of the difficulties facing international organizations, whose structures and modes of action continue to depend on inter-State relations[11]. The efforts of those organizations to bring representatives of the global civil society into the fold reflect their desire to adapt to this new reality.

The diminished role of the State reflects not only the growing importance of international actors. Local and municipal activities are also multiplying. Here, too, NGO initiatives have changed the local landscape. Increasingly, the public authorities entrust NGOs with tasks that they cannot or no longer wish to carry out, starting a process of privatization that does not involve the business sector but nevertheless relieves the authorities of certain responsibilities. Other public institutions below the level of the State have also been observed to be increasingly active.

It must be emphasized that the Declaration adopted by the ILO in 1998[12] has a greater potential to extend beyond the purely inter-State framework than other international instruments, even if it is intended mainly for the Member States. It focuses on all the fundamental social rights, which it lists without detailing the specific means for their implementation. Its binding force is limited, and the follow-up procedures considerably less demanding than the ILO’s traditional control mechanisms. Although it is therefore aimed first and foremost at the Member States, which are invited to adopt implementation measures, it can easily, because of the general nature of its wording, be referred to directly by the new global players. It can be used to define the shared rules to be followed by the ILO and the UN or the international financial institutions in the action they take at country level. It can be taken up in the social charters adopted by regional bodies (in particular the EU, the Council of Europe, NAFTA, Mercosur); more often than not, the latter are already largely based on ILO standards. What is more, the Declaration can be invoked by NGOs calling for the establishment of a list of basic principles to be respected with regard to social policy. It can serve as a source of inspiration for multinational companies when they draw up their social codes of conduct or define the criteria to be observed in their so-called social reports or their social audits.

In the same manner, the ILO adopted ten years later a Declaration entitled “Social Justice for a Fair Globalization”. The document recalls the values of the Organization in terms of employment promotion as well as decent individual and collective working relationships. At the same time, the Organization is asked to ‘”review and adapt its institutional practices to enhance governance and capacity building in order to make the best use of its human and financial resources and of the unique advantage of its tripartite structure and standards system”. The Organization and its Members must mobilize all available means of action, both nationally and internationally, to promote the goals of the Declaration and implement its commitments in the most effective and efficient way. The text intends to provide leaders and decision makers with an approach that connects with people and productive solutions at home, while also offering a common platform for governance at the international level. It wishes to contribute to policy coherence for sustainable development in national policies, among international organizations and in development cooperation, bringing together social, economic and environmental objectives. It states that international and regional organizations with mandates in closely related fields can play a role in the implementation of the integrated approach required.

Two important elements of the document should be emphasized. First, it calls for developing new partnerships with non-State entities and economic actors, such as multinational enterprises and trade unions operating at the global sector level, in order to enhance the effectiveness of ILO operational programmes and activities. Second, the new Declaration has therefore a greater potential to permit the extension of the ILO activities beyond the purely inter-State framework and authorize a more direct collaboration with the new global players. It can be used to elaborate joined projects not only with other international agencies including international financial institutions and regional groupings of States, but also with multinational companies or NGOs. Consequently the Declaration leads to a greater involvement of the ILO in the global debate on economic development as exemplified by its participation in recent G8 and G20 meetings. The Organization has had the opportunity to present its views on employment and social issues; they have been welcome and supported at that level. The chance to influence the policies of the main global actors has thus been improved.

The Organization has associated representatives of the civil society in some its programmes, such as the abolition of child labour or the protection of indigenous people. It has also established a Multinational Enterprises Helpdesk that provides advice to a variety of users, in particular company managers and workers, to foster the implementation of the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 1977, in company operations. Being far from the local conditions, it has, however, been criticized for the extremely general character of some of its opinions.

Equally important is the coordination and implementation of policies together with the intergovernmental organizations created after the Second World War, first in Europe and the Americas and later in other regions. The ILO has concluded agreements with organizations such as the Organization of American States (OAS), the Council of Europe, the Organization for Economic Cooperation and Development (OECD), the League of Arab States, the European Union (EU) and the Organization of African Unity (OAU) – now African Unity (AU). Among the most elaborate provisions are those governing relations between the ILO and the Council of Europe. The former is closely associated with the supervision of the European Social Charter and designates a representative to participate in the Committee of Independent Experts in an advisory capacity. Likewise, the ILO’s Committee of Experts on the Application of Conventions and Recommendations examines reports on the application of the European Code of Social Security and its Protocol and communicates its observations to the Council of Europe in accordance with the agreed supervisory procedures.

Difficulties arose however when it came to determining the relationship between the rights and obligations under the ILO’s Constitution and those under the European treaties. They centred principally on the respective competencies of the State Members of the EU and of its Commission in the following areas: drawing up of international labour standards (prior consultation of the State Members of the ILO and in particular of the most representative national organizations of employers and workers; consideration and adoption of international labour standards); obligation to submit Conventions and Recommendations, once adopted, to the competent authority; obligations regarding various aspects of the application of these instruments. In an Opinion No. 2/91 of 31 March 1993, the Court of Justice of the European Communities considered that the “conclusion” of ILO Conventions “falls within the joint competence of the State Members and the Community”, but rejected the notion that the Community as such could ratify an ILO Convention. In its comments, the Office pointed out that the very existence of an exclusive competence in a given field would prevent State Members from assuming separate international obligations, which include ratification of relevant international labour Conventions.

The example evidences the practical difficulties in the collaboration between the ILO and new actors whenever a clear institutional framework is missing.

B. New standards

1. Decent work and flexicurity

Facing the need to adjust labour laws to new economic developments, the EU promotes “flexicurity”. The term has come from the Netherlands and from a legislation that has tried to find a balance between work flexibility and the necessary protection of the employees: the Act of 1 January 1999, based on an informal agreement amongst the social partners, has stabilized the position of temporary workers.[13] The formula provides some security to the employees concerned, in the sense that they may after a time benefit fully from labour and social security law, while maintaining the required mobility. It seems well accepted by all parties involved.

The concept, however, has taken a broader significance in the European public debate[14]. It addresses every social policy that aims at reaching the optimal balance between flexibility in the labour market and workers’ protection. It is at the heart of the European Employment Strategy (EEE) whose aims at reconciling active employment policy with satisfactory working conditions and social guarantees, especially against social exclusion. It underlines the successes of the Northern European countries where dismissal is relatively easy, but unemployment benefits pretty generous, financed by high taxation and social deductions; employment policies are active and unemployment rates relatively low[15].

The European Union tends to implement the referred strategy through soft law regulation, as in the case of the Open Method of Coordination (OMC) [16]. It favours social dialogue, including giving priority to public regulation[17]. Quite often European Framework Agreements between employers´ associations and trade unions have substituted directives with regard to employment and labour issues. Sometimes nevertheless, but less frequently than in the past, a formal directive later on gives those agreements a general scope of application that  private regulation does not contain.

At the same time we can observe a renewed emphasis on the civil rights at work the trend echoes the concerns of some English-speaking thinkers[18]. The European Commission focuses on such themes as collective bargaining and equality, especially between genders[19]. The European Court of Human Rights plays a rather larger role in support of the fundamental social rights while the Court of Justice of the EU tries to conciliate the latter with the economic liberties, as in the quite famous sentences Laval, Viking, Rüffert y European Commission against Luxemburg, largely commented[20].

Attempts to go beyond the dilemma of traditional employment protections versus flexibilization of the labour market have also been intensively discussed in the ILO with the elaboration of the concept of decent work. The notion has much in common with the one of flexicurity although it regards a larger group of countries. It contains an ethical dimension with special focus on the fundamental labour rights as has been underlined in the Declaration adopted by the Organization in 1998. The 2008 Declaration, on Social Justice for a Fair Globalization, also gives priority to the “fundamental principles and rights at work” as one of its “strategic objectives”. The international labour standards on the conditions of employment are only means of achieving them all.

Furthermore the concept implies that men and women at work practise solidarity, as evidenced with the adoption in 2012 of a Recommendation n° 202 concerning social security in the broad sense of the terms. The instrument is not a compulsory one; it confirms, as the just mentioned Declarations, the trend to adopt soft law means rather than binding conventions. The Global Jobs Pact, of 2009, constitutes another document with an incentive rather than compulsory character. This in no way detracts from their usefulness: they rely chiefly on rationality and persuasion, and comprise the conclusion of political undertakings, the adoption of economic measures, the launch of training initiatives and information campaigns and the preparation of ‘technical’ (as opposed to ‘legal’) standards and practical guidelines. They have leaded to renewed reflection and discussion[21] and to a deeper involvement of the ILO in the global debate on economic development, as showed in its participation in recent G.8 and G.20 meetings.

From a social policy perspective, it is not easy task to strike the best possible balance between, soft and hard law, between promoting and stimulating certain behaviour and imposing sanctions in case of violation. Here, as in the case of education, one has to use the carrot and the stick. I observe however that documents without legal effects have not demonstrated their efficiency during the present crisis. Significantly, the newly elected Director-General of the ILO, in his first interventions, has given special emphasis to the whole corpus of international labour standards[22].

2. The new maritime convention

It would be remiss not to mention the work done to elaborate the consolidated convention on maritime labour that the Labour Conference has adopted in 2006. The Maritime Labour Convention (MLC) n°186 contains a number of innovations. An instrument that groups standards relating to several fields of a specific sector is not unknown at ILO. One example is Convention No. 110 of 1958, on plantations. A more recent one is the Work in Fishing Convention (No. 188), 2007. However, the new instrument on maritime labour more thoroughly changes the common practice of adopting a series of conventions on limited topics.[23] It has an original structure that distinguishes four parts. The first, which is similar to a classic convention, deals with the essential rights; it also contains provisions on entry into force, implementation, the amendment procedure and other general matters. The other three parts are based on the instruments of the International Maritime Organization (IMO). The second, called ‘regulations’, reiterates the basic provisions of the conventions already adopted on maritime labour. They have the same effects as the articles of the convention, the difference lying in a presentation that distinguishes between principles deemed to be essential and more technical rules. The third and fourth parts form a code, divided into specific “mandatory standards” that are binding in nature and “guidelines” that are not, on how to give effect to the rules. The way in which the convention can be updated is also original in its greater simplicity: the amendment procedure differs depending on whether the changes are to articles of the convention and regulations, on the one hand, or to the code, on the other. The scope of the consolidated instrument implies that very many changes will no doubt have to be made in the coming decades; a simplified procedure that is nevertheless consistent with the constitutional mechanism has seemed more appropriate.

It would not be accurate to see too many similarities between this instrument and the national framework laws with their implementing regulations; here there is only one regulatory authority. The ‘code’ nevertheless has points in common, in any event from the terminological point of view, with certain “codes” appended to Anglo-Saxon statutes. This being said, the code is legally different from the first two parts of the instrument. In particular, the “guidelines” are not binding; however, the States must, by virtue of the convention, give “due consideration” to the implementation of their obligations.[24] It is this attitude that will be scrutinized by ILO’s supervisory bodies. The Convention No. 187, 2006, concerning the promotional framework for occupational safety and health has more in common with national framework legislation; it is complemented by a Recommendation No. 197 of the same year.

The combination of provisions is aimed at ensuring universal application of the maritime labour standards set forth in the convention, even if a number of States fail to ratify: every ratifying State must establish a system of certificates and documents of compliance relating to conditions on board ship and a system for ensuring the convention is implemented. This is the responsibility not only of the flag State but also of the port State and of the State in which the seafarer resides. By thus increasing the number of parties tasked with ensuring effective implementation, the consolidated convention aims at universal application, even if certain recalcitrant States fail to ratify it.

In another innovation, the procedure for amending the consolidated convention has been simplified.[25] Changes may be introduced in the convention itself and in the regulations by amendments rather than by the adoption of a revised convention or a protocol. The code can be modified by tacit agreement, a procedure based on that established for the instruments of other international organizations, in particular the International Maritime Organization (IMO). The working of the Convention is kept under continuous review by a tripartite committee, established by the ILO Governing Body, with special competence in the area of maritime labour standards.

The Committee of Experts for the application of Conventions and Recommendations of the ILO has further suggested that the codified form of presentation espoused by the MLC, 2006 could also be effectively used in social security, where developed legislations move to consolidation into comprehensive organic laws or social security codes.[26] The same could be said for a new holistic instrument on social security that the ILO may consider adopting in the future.

3. Another method to legislate

Analyzing the labour standards adopted by the ILO, and the values they embody, I have proposed to classify them into three categories[27]. The first concerns the fundamental rights of men and women to work; the second covers standards of a programmatic nature; the third relates to the more technical provisions of labour and social security legislation. The distinction may provide a useful reference framework for a broader discussion of the future not only of international but also national and regional labour regulations. In particular, more frequent recourse to programmatic standards should lead the way out of certain impasses.

In most countries, the standards in the first category are derived from basic constitutional principles concerning public freedoms or social rights. They relate to freedom of association and the right to collective bargaining, the abolition of child labour and forced labour, and equal pay and equal opportunities in terms of employment. Their fundamental nature is recognized by almost all, and international treaties have given them clear pre-eminence.

The United Nations Covenants on Civil and Political Rights and, in particular, on Economic, Social, and Cultural Rights are one example. Another is the ILO Constitution and several ILO conventions, and the 1998 Declaration on Fundamental Principles and Rights at Work. These texts, which are succinctly worded, enshrine general principles that can be applied in many ways. This is why they sometimes give rise to the same difficulties of interpretation (a balance must be struck between excess laxity and extreme radicalism) as national constitutional rules.

The basic labour standards enshrine the essential principles of law and order giving the workers themselves the possibility “to claim freely and on the basis of equality of opportunity their fair share of the wealth which they have helped to generate and to achieve fully their human potential”. They are therefore based on the notions of liberty and democracy. The provisions in this first category can be either technical or programmatic in nature. Incorporating those standards into constitutional texts establishes their pre-eminence; when incorporated into legislation they can be accompanied by sanctions in the event that they are violated. Without underestimating the usefulness of other, non-legal measures in promoting the application of the standards in specific socio-economic circumstances, the importance of legal measures is not and indeed cannot be open to doubt.

Most labour standards belong to a second group, with a more specifically technical content. They deal with working conditions, industrial justice, labour administration and social security. Most of the debate on the future of the legal protection of labour focuses on them. National – and international – lawmakers are faced with sometimes contradictory objectives, with tension between the different concerns of employers and wage-earners, or other groups, and the need to bring them in line with the public interest. Choices have to be made. Those choices are sometimes the fruit of semi-official negotiations and reciprocal concessions; at others they are the result of delicate arbitration. In democratic societies, the legislative branch often seeks a minimum consensus to guarantee that the standard will be effective.

Agreement is more easily reached on topics like occupational health and safety than others. In those areas, employers and workers share the same broad concerns, related in good part to technical developments, even if their views differ on the practical methods of application or the pace of the planned reform. Hardly surprising, for example, that many European standards deal with occupational health and safety. A common approach is much more difficult to find on topics over which the proponents of a rigid system on the one hand and those of flexibility on the other tend to face off. Working time is a striking example. There has been heated debate on how to adapt the old rules to the new technical constraints and social aspirations. Any deadlocks usually do not stem from bureaucratic wrangling or the national system’s lack of elasticity: they arise from the difficulty of reconciling varied and differing points of view on basic issues. For many years, for example, the exceptions to the limits of the weekly working hours have divided the world of labour. Solutions are today to be found in most European labour laws.

This type of agreement on the basic principles for a set of regulations is usually lacking today, hence entire sections of labour law have been laid open to question. A compromise seems all the more unlikely in that the workers’ and even the employers’ federations find it harder than in the past to speak on behalf of all those they represent. Technical standards focus most discussions on the best possible synthesis between economic objectives and labour protection. It is therefore above all in terms of those standards that the cost of labour law and social security must be examined.

The third category of standards covers provisions of a more programmatic rather than directly obligatory nature. They essentially prompt action: they set the goals to be reached through promotional work by the public authorities and their implementation requires the adoption of a variety of measures which are not all legal in nature: definition of political projects, adoption of economic measures, information and training campaigns, the use of non-legal “technical” standards, etc. In brief, programmatic standards reflect a determination to regulate by setting objectives and are based, at least in part, on human resources management methods. These standards are worded in general and flexible terms, and they often place no obligation of result on the employer or on any other person, but rather contain an obligation of means for the individual or the institutions concerned to adopt measures: carrying out certain activities, drawing up or implementing certain projects, working towards certain goals, etc.

These standards seek to make action in those areas more coherent and systematic; they define objectives, create mechanisms and structures adapted to the programmes chosen; they provide, as the case may be, for concrete measures concerning the labour market and the means of evaluating their effectiveness. In terms of employment, for example, some of these measures are apparently geared towards the immediate future (like the exemption from social security contributions to encourage the employment of young people at a given time), while others tend to lay the groundwork for a strategy to fight unemployment (such as the makeover of the occupational training system or, more simply, encouraging geographical or professional mobility).

Supervising the application of this second group of standards gives rise to specific problems in that it involves the means used rather than the end results obtained. It should nevertheless be pointed out that enacting legislation of this kind does not amount to “deregulation” or to adopting a strictly “voluntarist” attitude, leaving the social partners entirely free to set the terms of their industrial relations.[28] Quite the contrary, the contacts between parties take place within a framework and objectives governed by legal rules, i.e. accompanied by the threat of sanction in the event of any breach. This being said, when these provisions set a part for social actors, they should be based on a certain balance of power between them, i.e. on the possibility for them to act on equal footing.

It should be added that one legislative act can encompass both directly binding provisions and programmatic standards. Equal opportunity and equal pay legislation provide ample illustration thereof: promotional measures are accompanied by rules annulling acts of discrimination in the area considered.

This category of standards also cover provisions aiming at facilitating communication between social groups and other institutions, with a view to enabling them to solve the problems identified;[29] as has been said, they “coach a process”. A number of provisions concerning industrial relations fall in this category.

The diversification of situations has obliged lawmakers in countries such as Belgium, France[30] and Italy to authorize derogations to labour rules (in particular concerning working hour arrangements) in collective agreements. The law does no more than set the framework for this greater flexibility, i.e. the conditions (and possible compensation) and scope of the exceptions allowed. In a similar vein, the law can define the circumstances – and the limits – in which the public authorities allow recourse to private conciliation, mediation and arbitration of social conflicts. The evolution of the European Social Law goes in the same direction. Thus the European Commission has, in accordance with article 154 of the Treaty on the functioning of the European Union, to consult the European employers’ and workers’ organizations before presenting proposals of social policy.  If then the Commission considers desirable to take action, the social partners may decide to deal themselves with the matter, rather than to let the Council of Ministers and the Parliament to do so. This way to proceed has been used a number of times, as on harassment and stress at work with an agreement of 26 April 2007.

In European[31] and international law, programmatic standards are used as a matter of course to influence State action. European Directives are clearly programmatic standards. At the international level, these standards are to be found, in areas such as employment, occupational training and the abolition of discrimination. Examples thereof can nevertheless also be found in the domestic legislation of such countries as Japan, Canada or the Netherlands[32], and more generally each time a State decides to leave to the social partners the regulation of a certain question (such as exceptions to the working time legislation).

Programmatic standards give rise to little debate. They are generally well accepted, except when they increase the administrative burden on enterprises. Furthermore, insufficient use has been made of the means they afford for adjusting the protection of work to the present economic constraints. They permit more than the substantive standards, a rapid updating of the legislation – relating for example to safety at work – in line with the progress of science and techniques. They give the parties directly concerned, at all levels, the responsibility to adapt their conditions of employment to the day-to-day realities and, finally, to find the most appropriate balance between economic efficiency and guarantees for the people at work. There is no need to add that there are limits to the delegation of responsibilities: the State must indeed keep the authority to determine what is of public interest. Nonetheless, the use of programmatic standards would accelerate the modernization process on a great number of issues.

4. New forms of workers’ security

Another path of modernizing international labour law is to introduce in the substantive legislation new forms of security that are compatible with a less stable employment situation. When self-employment and precarious forms of wage employment are growing, the protection of work can no longer be based, in the same manner, on the permanent labour relationship.

Certain categories of workers appear to be at the margin of a wage relationship. It may be difficult in many cases to decide whether persons such as home-based workers, sportsmen or women, artists, professional journalists, lorry or taxi drivers should be considered as employees or rather self-employed entrepreneurs. In some cases (Canada, France, Germany, the Netherlands, Sweden), the legislation extends the application of labour provisions to some of those workers. In others (Belgium, France, Germany, Portugal, South Africa, Spain), law goes further on and presumes either their subordination to an employer or on the contrary their independence. British, Danish, Dutch, German, Italian and Spanish laws have elaborated an intermediary category, often called by its Italian name ‘para subordination’. It covers workers who are not legally employees of an employer, but depends economically of one or few contractors. They enjoy some but not all the rights granted to the wage employees.[33]

The establishment of health care institutions and basic pension schemes should also be decided everywhere, independently of the type of employment. The ILO Social Protection Floor Recommendation, 2012 (N°202) considers that it even constitutes an absolute priority in developing countries and provides guidelines for its implementation. In the industrialized ones, institutions serving as points of anchorage in a context of increased mobility (from one company, one working relationship or one activity to another) have to be invented or revived. The example below shows that the idea is not pure speculation.

In the United States, social benefits are obtained chiefly through the company and are in principle lost if workers leave their jobs (hence the question of transfer of acquired rights). In Silicon Valley, AFL-CIO has asked her organisation to offer workers who have become “roving” – and thus especially mobile – to provide these workers with health insurance, unemployment insurance and permanent training. In several northern European countries – Belgium, Denmark, Finland, Ireland and Sweden – the trade unions continue to handle – alone or otherwise – the payment of unemployment benefits. The reason is to be found in their history, in the fact that they were the first to help the jobless, before the State took over responsibility for the task.

More generally, the history of social security shows that, in the past, private institutions – followed later on and only to a certain extent by public institutions – sprang up in many Western countries to meet the new and urgent needs arising from the industrial revolution and its social implications. By the same token it can be said that today, in many cases, these private groups fill a social void, meet an unsatisfied collective need.

Another avenue of reflection is open to social negotiators, to national decision-makers and to international authorities. It consists in giving official recognition to those socially useful activities and to their protagonists. Socially useful activities are understood to include but also to go beyond assistance for the most needy. Obviously, the aim is not simply to delegate a public service to private associations, which might result simply in the establishment of a new market open to commercial groups or in bureaucratic red tape. Social recognition of those activities must be accompanied by a corresponding decent wage provided by the beneficiaries or by State institutions. Socially useful activities still comprise the organisation of systems such as the “time banks” in Italy, France and elsewhere, i.e. those exchange networks between private individuals where a service received is paid for by making time available to someone else (for example, babysitting in exchange for some minor household repairs). Obviously, many of these activities consolidate local community stability and help prevent social tensions. This would also result in a renewal of the analysis grids traditionally adopted for the informal sector and, again, in the incorporation of the activities of private associations.

One may also observe the use, in a number of other countries like France, of a shared, i.e. or subsidiary, liability of the principal enterprise in case of subcontracting and temporary supplying or loan of staff.[34] The technique has allowed strengthening the guarantees of the workers concerned that have precarious labour relations and work in more than one firm. While the purpose appears quite similar, North-American law has elaborated distinct figures, in particular the legal institutions of sole or joint employer.[35]

5. New links with competition law

Our vision of labour law, including of its international dimension, should not focus only on employment and industrial law, but open to other legal disciplines, such as civil and commercial law. Competition law in particular has a significant influence on its development, in a direction that not always favours the employer, as it appears in the European social law. Some European directives request to consider the principal firm, with a ruling position, in the case of a group of companies or of triangular relations of the types we may find in temporary and in subcontracted work. More generally the concept of enterprise and its different meanings in European Law has to be examined in depth. Economic law has also inspired the requirements of transparency and accessibility of the information imposed in the European directive No 96/71/CE of December 16 1996 on the posting of workers. Those developments bring no surprise as European Law aims at harmonizing the working conditions in the EU, at avoiding any kind of social dumping, and at seeking for the optimum between economic freedoms (enshrined in the Treaties) and social (including trade-union) rights.

Mention has already been made of enterprises´ codes of conduct affirming their corporate social responsibility. In spite of their often uncertain legal effects, such private social initiatives provide useful means of supplementing national law on different points or, more often, of ensuring improved compliance.

Last but not least, the social clause problematic should again be revisited. It raises the question of the efficiency of the sanctions in international labour law as well as of the cost of the social legislation in economics. In spite of the ILO reluctance to deal with the matter, minimum labour standards have been more and more inserted in commercial legislation as well as in trade agreements. Those developments are unlikely to stop.

There is here a new role for ILO: the quality of its experts and their first-hand knowledge of development in less industrialized countries make the Organization an ideal neutral third party charged with examining the social provisions introduced in non-universal treaties, or, as the case may be, in enterprises codes of conducts.

Final remarks

That is all, and not really much in front of the crisis a number of countries face, especially in Southern Europe today. The level of unemployment has reached dramatic heights in Spain or in Greece, not to speak of the situation in other continents. Still more disturbing is the rate of youth unemployment.

True, the problem varies from one country to another; lost of jobs in a particular place may mean gain of jobs in another. Brazil and Germany are in search of engineers while the brains are flying from other States, including from industrialized ones. Not always the less qualified workers, but the ones with solid diplomas are leaving their countries which have spent significant amount of money for their education.

No legal provisions are able to directly help in this regard. Job creation depends basically upon an economic situation that stimulates private firms, and the public sector when resources permit, to recruit. The accelerated internationalization of exchanges has even lowered each nation’s capacity, and that of its participatory bodies, to control economic policies. The great difficulty, and at the same time the pressing need of the present period is to make up for the democratic and social deficit and to reinvent new rules of the game allowing all those concerned to get a decent work, meaning a job performed in conditions of respect for human dignity and with protection covering the risks it entails. This paper has pointed out the continuing efforts that have been made at the international level and the positive measures that have been adopted to try to adjust to the present socio-economic environment.

August 2013

 


[1] Honorary President of the International Society for Labour Law and Social Security, Visiting Professor at Liège (Belgium) and Gerona (Spain) Universities, Former Director at the International Labour Organisation (ILO).

[2] International Labour Law, 3rd ed., The Hague, Kluwer, 2011, §§ 1075-1083 . This note is largely based on this book.

[3] N. Valticos and G. von Potobsky, ‘International Labour Law’, in International Encyclopaedia for Labour Law and Industrial Relations, Deventer, Kluwer, 1995, paras 10–15; W. Sengenberger, Globalisation and Social Progress: The Role and Impact of International Labour Standards, Bonn, Friedrich-Ebert Stiftung, 2002, mainly p. 31 and et seq.

[4] See for example Lee, S., McCann, D. (eds.), Regulating for Decent Work. New Directions in Labour Market Regulation, Geneva, ILO, 2011; OECD, International Trade and Core Labour Standards, Paris, 2000; W. Sengenberger and D. Campbell (eds.), Creating Economic Opportunities. The Role of Labour Standards in Industrial Restructuring (Geneva), International Institute for Labour Studies, 1994; D. Kucera, ‘Core labour standards and foreign direct investment’, International Labour Review, 2002, Vol. 141, Nos. 1–2, pp. 31–69.

[5] See T. L. Caraway, ‘Protective repression, international pressure and institutional design: explaining labor reform in Indonesia’, Studies in Comparative International Development, fall 2004, Vol. 39 No. 3. pp 28–49.

[6] M. Piore, ‘Rethinking International Labor Standard’, in W. Milberg, Labor and Globalization of Production. Causes and Consequences of Industrial Upgrading, Basingstoke (Hampshire), Palgrave Macmillan, 2004, p. 263.

[7] This is how culture is defined in Webster’s New World Dictionary, 3rd College Edition, Simon & Schuster Inc., 1994.

[8] T. Treu, ‘European unification and Italian labor relations’, Comparative Labor Law Journal, Vol. 11, No. 4, summer 1990, p. 457.

[9] See for example Lee, S., McCann, D. (ed.), Regulating for Decent Work. New Directions in Labour Market Regulation, Geneva, ILO, 2011, págs. 23 and the contribution of  R. Rocha C. Pires pp. 313-338.

 

[10] A. Sen, The Idea of Justice, London, Penguin Books, 2009.

[11] See also L. Baccaro and V. Mele, Pathologies of Path-Dependency: The ILO’s Standard-Setting Model and the Challenge of ‘New Governance’ Paper presented at the Workshop ‘The Idea of Labour Law’, Cambridge University, 8-9, April 2010.

[12] See the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, 1998.

[13] G Heerma van Voss, ‘The “Tulip Model” and the New Legislation on Temporary Work in the Netherlands, The International Journal of Comparative Labour Law and Industrial Relations”, 1999, no.15 (4), pp. 80-4; T. Jaspers, “ Flexiguridad: ? es la respuesta acertada a la modernización del Derecho del Trabajo? Una perpectiva holandesa” in J.P. Landa Zapirain (ed.), Estudios sobre la estrategia europea de flexiseguridad: una aproximación crítica, Albacete, Ed. Bomarzo, 2009,  pp. 25-56; ILO, “Combining flexibility and security for decent work” Document GB.306/ESP/3/1, Geneva, November 2009, § 4.

[14] European Industrial Relations Observatory on-line EU Countries: Flexicurity and industrial relations, 30 Septembre 2008, http://www.eurofound.europa.eu/eiro/2008/09/index.htm. See also F. Hendrikx (ed.), Flexicurity and the Lisbon Agenda. A Cross-Disciplinary Reflection, Mortzel, Intersentia, 2008; R. Blanpain, J.P. Landa and B. Langille (ed.), «Employment Policies and Multilevel Governance», Bulletin of Comparative Labour Relations (The Hague, Kluwer), no. 71, 2009

[15] S.Borelli, P. Vieille (eds.), Quality of Employment in Europe : Legal and Normative Perspectives, Bruxelles, Peter Lang, 2012; B Palier,  « Refonder la Protection Sociale: les Experiences européennes » , Esprit, 2006, pp.53-78; D. Anxo and H. Nickclasson, « The Swedish model in turbulent times: Decline or renaissance? » International Labour Review, 2006, no. 145(4), pp.379.

[16] Articles 145 – 150 of the Treaty on the functioning of the EU.

[17] Articles 152, 154 and 155 of the same treaty.

[18] See Ph. Alston, Labour Rights as Human Rights, Oxford University Press, 2005. Compare: C. Fenwick and T. Novitz (eds.), Human Rights at Work: Perspectives on Law and Regulation, Portland, Hart Publishing, 2010; J. Fudge, ” The new discourse of labor rights: from social to fundamental rights?”, Comparative Labor Law & Policy Journal, fall 2007, vol. 29(1), pp. 29-66.

[19] ec.europa.eu/policies/employment_social_rights_es.htm, 16 Nov 2012.

[20] See for example A. Lyon-Caen y Q. Urban, (ed.), Le droit du travail à l’épreuve de la globalisation, Paris, Dalloz, 2008, pp. 83-116; R. Blanpain and A.M. Swiatkowski (ed.), « The Laval and Viking Cases. Freedom of Services and Establisment vs. Industrial Conflict in the European Economic Area and Russia », Bulletin of Comparative Labour Relations (Kluwer), n° 69, 2009 ; U. Carabelli, Europa dei mercati e conflitto sociale, Bari, Cacucci, 2009 ; E Georgitsi, « La proportionnalité comme instrument de ‘conciliation’ des normes antagonistes. Regard critique sur l’identification et la résolution des conflits de normes en contentieux constitutionnel comparé », Revue internationale de droit comparé, July- September 2011, n°3, pp.559-583.

[21] See for example: Lee, S., McCann, D. (eds.), Regulating for Decent Work. New Directions in Labour Market Regulation, Geneva, ILO, 2011.

[22] International Labour Conference (102nd Session, 2013), Towards the ILO centenary: Realities, renewal and tripartite commitment, Report of the Director-General, Report 1(A), Geneva, ILO, 2013, §§ 103 and ff.

[23] See Governing Body document GB.286/LILS/8, Geneva, March 2003.

[24] Article VI.

[25] See Articles XIV and XV, and para. 105 above.

[26] International Labour Conference (100th Session, 2011), Social Security and the Rule of Law, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1B), Geneva, ILO, 2011, § 614; see also § 605.

[27]See J.M. Servais, International Labour Law, 3rd ed., The Hague, Kluwer, 2011, para 1110-1129; compare:  W. Jenks, Law, Freedom and Welfare, London, Oceana Publications, 1963, p. 103.

[28] Comp. Wedderburn, “The social charter in Britain. Labour law and labour Courts”, The Modern Law Review, 54(1), January 1991, pp.3-4; J.de Munck, J.Lenoble and M. Molitor (eds), L’avenir de la concertation sociale en Europe, Louvain, Centre de philosophie du droit (Université catholique de Louvain), 1995, tome I, p.20 and ff.; A. Lyon-Caen, »Droit du travail et procéduralisation », ibid. tome II.pp.176 and ff.

[29] See in this respect B. Hepple (editor), Social and Labour Rights in a global context. International and comparative perspectives , Cambrigge University Press, 2002 ; J.Habermas “Law as medium and law as institution”, in G. Teubner (editor), Dilemmas of Law in the welfare State, W. de Gruyter, Berlin, 1986; T.Treu “Strikes in essential services in Italy: an extreme case of pluralistic regulation”, Comparative Labour Law Journal, Vol. 15(4), summer 1994, pp.461 and ff.; S. Deakin, Renewing Labour Market Institutions, Geneva, International Institute for Labour Studies, 2004, pp.46-57.

[30] For France, see G.Lyon-Caen, Le droit du travail. Une technique réversible, Paris, Dalloz, 1995, pp.41 et seq ; Th.Revet, « L’ordre public dans les relations de travail », in Th.Revet (editor) L’ordre public à la fin du XXIème siècle, Pairs, Dalloz, 1996, pp.61 et seq.

[31] See for example “The E.U. and the Modernisation of Labour Law. First stage consultation of social partners on modernizing and improving employment relations”. The International Journal of Comparative Labour Law and Industrial Relations, vol.16 (4) winter 2000, p.434; C. Barnard and S. Deakin: “Corporate governance, European governance and Social Rights” in B. Hepple (ed.), Social and Labour Rights in a Global Context. International and Comparative Perspectives, Cambridge University Press, 2002, pp. 122-150.

[32] See ILO, World Labour Report, Geneva, 1995, p.82; T. Araki, “The impact of fundamental social rights on Japanese law” in B. Hepple (ed.), Social and Labour Rights in a Global Context. International and Comparative Perspectives, Cambridge University Press, 2002, pp. 234-235; P. Verge, «  L’effectivité du droit social : à quelles conditions ? Perspectives canadiennes », dans Ph. Auvergnon (ed.), L’effectivité du droit du travail. A quelles conditions ?, Presse universitaire de Bordeaux, 2nd ed. 2008 ; P. Auer, Employment revival in Europe. Labour market succession Austria, Denmark, Ireland and the Netherlands, Geneva, ILO,  2000 p.63.

[33] Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law, International Institute for Labour Studies, Oxford and Portland, Oregon, 2006; D. Melann, Regulating Flexible Work, Oxford University Press, 2006; A. Bronstein, Current Challenges of Labour Law, Geneva, ILO/Palgrave, 2009; Leah Vosko, Managing the Margins:Gender, Citizenship and International Regulation of Precarious Employment, New York (NY), Oxford University Press, 2010. See also Guy Davidov, “The goals of regulating work: between universalism and selectivity”, Labour Law Research Network, December 2012.

[34] European Industrial Relations Observatory on-line, Temporary agency work and collective bargaining in the EU, May, 28, 2009, http://www.eurofound.europa.eu/eiro/studies/tn0807019s; M.L. Morin ‘Labour Law and New Forms of Corporate organization’, International Labour Review, vol. 144(1), 2005.

[35] P. Verge (with the collaboration of S. Dufour), Configuration diversifiée de l’entreprise et droit du travail, Saint Nicolas (Québec), P U Laval, 2003.