Could the Existence of Precarious Work Become Precarious

Could the Existence of Precarious Work Become Precarious

24 January 2019 07:30

The Commission on the Future of Work established by the ILO presented its report on 22 January 2019. It includes proposals of far-reaching reforms in the organization of work. BWI is positive on the major changes submitted by the Commission, but I want to focus on one aspect of their report that is of special importance to workers in the industries BWI represent.

The report says that all workers should have the right to organise and bargain regardless of how their work is structured. That, in itself, would mean little if they did not accompany that statement with some practical ideas as to how we might get there.

The situation we face is that, although in many countries, all workers have the statutory right to organise, they do not, in fact, have the effective right to organise. In our industries and in many others, employers have become very creative in re-designing the organisation of work so that workers to not really have that right.

That means, among other things, that union density is under-estimated. If you take the number or workers who are organised as a percentage of the total workforce, you come up with a very different figure than if you calculate it as a percentage of the “organisable” workforce. The organisable workforce has shrunk and that development, over which we have no control, determines density, but more importantly, dictates on the ground organising feasibility and results.

We have a lot of “self-employed” workers working on construction sites and in some regions particularly in Asia, this is the normal form of employment. They are not employees, but micro-enterprises. In theory, they may be able to form associations, but the people they work for could dictates all conditions of work and they can refuse to bargain with them and, if they did negotiate, it would be about prices, not wages, which might mean that they would be considered to be “price-fixing” in violation of anti-trust laws”.

Workers provided by temporary work agencies might have, in some countries, the right to organise and bargain but, with only a few exceptions, it would be with the agency that dispatched them and not with the user employer; the employer that is fixing their hours, determining their health and safety conditions, their wages, and doing nearly everything else that a normal employer would do.

There are many other workers, including contract workers, subcontractors, and informal workers who often fall through the cracks of labour law coverage.

One of the ways that the Global Commission proposes to provide the effective rights to organise and bargain is to guarantee that all workers have employment relationships. That would give them real trade union rights, but would also provide social insurance and some other rights that they otherwise would not enjoy.

This proposal might seem far-fetched and way too ambitious, but earlier this month, the United States Supreme Court, with a conservative majority, unanimously decided a question of access to the courts by a “self-employed” worker by siding with the worker. In their judgment, a justice appointed by President Trump, Neil Gorsuch, wrote that there were differences between the worker, who said that he worked for the company and the company who said that he was self-employed. However, both sides agreed that he was a worker and the relevant legislation from 1925 did not speak of employees and self-employed, but only of workers.

The BWI has been deploying the UN Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises to argue that companies have to assume the responsibility for human rights violations of workers even if those workers are not directly employed by them. Much of our work in mega-sporting events as well as engagement with multinational companies is based on those principles.

The reform proposed for consideration by the Global Commission would provide a change of status that would protect the rights of those with disguised employment relationships and others, so it would be the same principle as that incorporated in the Guiding Principles, but with a legal status. As the Guiding Principles are based on the idea that the State must protect rights and business must respect them, the Global Commission’s recommendation, if implemented, would strengthen that relationship between protect and respect.

A worker is a worker and a worker is a human being. The steady erosion of employment relationships by business has made many workers feel disposable or as if they are commodities being bought and sold on the open, and increasingly international market. That is not just a perception. It is a reality. Shifts in status often mean that workers are “protected” by commercial law, that treats all parties as equals instead of by labour law that is based on the recognition that employers are innately more powerful than workers.

Reorganising the future of work along the lines suggested by the Global Commission would not only be progress for social justice and decent work, but also a major breakthrough for human dignity.