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Rethinking Workplace Regulation

Rethinking Workplace Regulation: Beyond the Standard Contract of Employment

Katherine V.W. Stone
Harry Arthurs
Copyright Date: 2013
Published by: Russell Sage Foundation
Pages: 440
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  • Book Info
    Rethinking Workplace Regulation
    Book Description:

    During the middle third of the 20th century, workers in most industrialized countries secured a substantial measure of job security, whether through legislation, contract or social practice. This "standard employment contract," as it was known, became the foundation of an impressive array of rights and entitlements, including social insurance and pensions, protection against unsociable working conditions, and the right to bargain collectively. Recent changes in technology and the global economy, however, have dramatically eroded this traditional form of employment. Employers now value flexibility over stability, and increasingly hire employees for short-term or temporary work. Many countries have also repealed labor laws, relaxed employee protections, and reduced state-provided benefits. As the old system of worker protection declines, how can labor regulation be improved to protect workers? InRethinking Workplace Regulation, nineteen leading scholars from ten countries and half a dozen disciplines present a sweeping tour of the latest policy experiments across the world that attempt to balance worker security and the new flexible employment paradigm.

    Edited by noted socio-legal scholars Katherine V.W. Stone and Harry Arthurs,Rethinking Workplace Regulationpresents case studies on new forms of dispute resolution, job training programs, social insurance and collective representation that could serve as policy models in the contemporary industrialized world. The volume leads with an intriguing set of essays on legal attempts to update the employment contract. For example, Bruno Caruso reports on efforts in the European Union to "constitutionalize" employment and other contracts to better preserve protective principles for workers and to extend their legal impact. The volume then turns to the field of labor relations, where promising regulatory strategies have emerged. Sociologist Jelle Visser offers a fresh assessment of the Dutch version of the 'flexicurity' model, which attempts to balance the rise in nonstandard employment with improved social protection by indexing the minimum wage and strengthening rights of access to health insurance, pensions, and training. Sociologist Ida Regalia provides an engaging account of experimental local and regional "pacts" in Italy and France that allow several employers to share temporary workers, thereby providing workers job security within the group rather than with an individual firm. The volume also illustrates the power of governments to influence labor market institutions. Legal scholars John Howe and Michael Rawling discuss Australia's innovative legislation on supply chains that holds companies at the top of the supply chain responsible for employment law violations of their subcontractors. Contributors also analyze ways in which more general social policy is being renegotiated in light of the changing nature of work. Kendra Strauss, a geographer, offers a wide-ranging comparative analysis of pension systems and calls for a new model that offers "flexible pensions for flexible workers."

    With its ambitious scope and broad inquiry,Rethinking Workplace Regulationillustrates the diverse innovations countries have developed to confront the policy challenges created by the changing nature of work. The experiments evaluated in this volume will provide inspiration and instruction for policymakers and advocates seeking to improve worker's lives in this latest era of global capitalism.

    eISBN: 978-1-61044-803-1
    Subjects: Business, Management & Organizational Behavior

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. List of Tables and Figures
    (pp. ix-xii)
  4. Contributors
    (pp. xiii-xiv)
  5. Acknowledgments
    (pp. xv-xvi)
    Katherine Stone and Harry Arthurs
  6. Chapter 1 The Transformation of Employment Regimes: A Worldwide Challenge
    (pp. 1-20)

    Around the world, workers are embattled, labor markets are in disarray, and labor laws are in flux. The premise of this volume is that the decline of the standard employment contract is both a cause and an effect of these developments. Employment relationships, we argue, have become increasingly unstable in most industrialized countries and this instability is undermining the regulatory regimes that organized and governed labor markets and employment relationships for much of the twentieth century. As a result of the breakdown in regulation, we further contend, working people are increasingly experiencing the debilitating social, political, and psychological effects of...

  7. PART I The New Political Economy of Employment

    • Chapter 2 Changes in the Labor Market and the Nature of Employment in Western Countries
      (pp. 23-41)

      The labor policies of Western developed countries were generally established in an earlier era when the nature of work was quite different from what it is today. The old world of work was generally characterized as male-dominated involving blue-collar manufacturing jobs in a fixed worksite with lifetime jobs often protected by a tariff as well as a collective agreement or employment standards legislation established and monitored by governments that had the power and discretion to enforce regulatory initiatives. The new world of work is vastly different. In such circumstances, it would be surprising if the labor regulations previously established for...

    • Chapter 3 Labor Market Regulation and the Global Economic Crisis
      (pp. 42-57)

      The current economic crisis has increased rates of unemployment and exacerbated a long-term weakening of institutions such as employment security, labor regulation, and collective bargaining. This trend has different particulars for different nations, but has common general characteristics everywhere. High unemployment and protracted crisis tend to put downward pressure on wages and erode regulated labor markets. Protracted joblessness increases tensions between unions and their members by creating pressures for reductions in wages and other labor protections that union leaders have to broker with their membership. It creates defensive responses that often take the form of two-class systems of labor relations...

    • Chapter 4 The Decline of the Standard Contract of Employment in the United States: A Socio-Regulatory Perspective
      (pp. 58-78)

      A potent mix of globalization, technological change, and neoliberal public policies is undermining established employment practices as well as employment regulatory regimes around the world. The employment relationship is being transformed from a long-term stable relationship between an employee and a firm to one in which the employee is a free agent operating in a boundaryless workplace. Along with the transformation in the individual employment relationship, there has been a deterioration of the labor market institutions in which the individual contract of employment is embedded.

      Earlier in this volume, Robert Kuttner described the demise of established labor market institutions from...

  8. PART II Revising Legal Conceptions of Employment

    • Chapter 5 Burying Caesar: What Was the Standard Employment Contract?
      (pp. 81-94)

      Mark Antony’s famous funeral oration to his Roman friends and countrymen is so heavily charged with irony and manipulation of the crowd that it is difficult to extract a straightforward sentence from it. His underlying purpose is clear enough: he is seeking to vindicate an institution that he reveres against detractors and assassins. A somewhat similar impulse animates this chapter. The theme that animates this entire volume is the demise of the standard employment contract, either as a fait accompli or as an imminent and inevitable event. Those who identified that theme probably had no special animus against the standard...

    • Chapter 6 “The Employment Contract Is Dead! Hurrah for the Work Contract!” A European Perspective
      (pp. 95-112)

      This chapter presents the recent history of the individual employment contract in a civil law system (that of Italy), describes its current functions, and considers its potential transformation in the European context. As often the case when applying the comparative method, we come to perceive that, even within the same trends and functions in different national systems, legal institutions, particularly in the employment law field, carry strong traits of the juridical and constitutional systems of the nation states in which they originated.

      Nonetheless, globalization and the building of a European system have made the trend toward unity in difference increasingly...

  9. PART III The Restructuring of Labor Market Institutions

    • Chapter 7 Erosion, Exhaustion, or Renewal? New Forms of Collective Bargaining in Germany
      (pp. 115-134)

      Industrial relations and collective bargaining in Germany are experiencing an upheaval. Traditionally, collective bargaining actors and collective bargaining itself have been driving forces in the development and definition of standard employment relationships characterized by well-paid, permanent, and full-time labor contracts. For more than a decade, a process of erosion of collective bargaining and the standard employment relationship has been observed (see, for example, Hassel 1998). Indeed, the signs of erosion or exhaustion are manifold—from the decline of collective bargaining coverage, the membership losses of employers’ associations and unions, and the decentralization of collective bargaining—to other developments such as...

    • Chapter 8 Flexibility and Security in Post–Standard Employment Relations: The Netherlands
      (pp. 135-154)

      In recent times, the Netherlands has been one of the most successful advanced economies in terms of raising employment levels and keeping unemployment down. Since 1993, it has maintained an unemployment rate consistently lower than the EU average, and employment rates for both men and women rising considerably faster than the EU average (see figure 8.1).¹

      The “Dutch miracle” has been the result of two factors: the decentralization and devolution of collective bargaining from national and sectoral to the company and local level, thereby enabling parties to tailor flexible solutions to market pressures, and the enactment of regulatory policies encourage...

    • Chapter 9 Regional and Local Experiments for Labor Market Policy in Europe
      (pp. 155-173)

      In assessing the potential for regional and local-level interventions in labor-market policy intended to bolster job security for workers hired on flexible contracts in Europe, this chapter does not take a normative approach. Its aim is not to propose changes or reforms through legislation or collective agreements among social partners, nor to discuss those that already exist. It is also not descriptive: it does not seek to furnish a complete and up-to-date description of how matters stand. The intention—more modest—is to use results of empirical research from European countries conducted in the past fifteen years on programs intended...

    • Chapter 10 New Forms of Dispute Resolution: Japan’s Labor Tribunal System
      (pp. 174-193)

      When labor contracts become unstable, atypical, nonstandard employment becomes prevalent, and employment mobility increases, labor disputes tend to come to the surface. Under the long-term and stable employment relationship, employees are hesitant to file claims with courts and other external dispute resolution organs, fearing that such actions might damage their relationship with their employer and not pay off in the long run. Therefore, complaints, if any, tend to be dealt with by in-house dispute resolution procedures. Once employment relations are terminated, by contrast, employees are free to make claims against former employers in courts or other external forums without fearing...

    • Chapter 11 Organizational Primacy: Employment Conflict in a Post–Standard Contract World
      (pp. 194-210)

      In the era of the standard employment contract, conflicts between employees and employers often centered on the question of whether the employer was abiding by the terms of the standard contract or the employee was being unfairly denied the normal benefits derived from working under such a contract. With the decline of the standard contract, the nature of conflict in the workplace has changed with new disputes arising in the course of new, nonstandard careers. Now we see coming to the fore issues such as entry and exit to organizations in multi-organizational careers, determination of who is an employee or...

  10. PART IV Beyond the Employment Nexus

    • Chapter 12 Flexibility and Security in Employment Regulation: Learning from Denmark
      (pp. 213-232)

      In a remarkably short time,flexicurity, a portmanteau of flexibility and security, has emerged on the international political scene as a new and popular concept for reforms of labor markets, labor laws, and employment policies. An innovative policy experiment, it promises to reconcile the contradictory demands of employers wanting more flexibility in employment relations with the demands of workers wanting more job security and social security.

      The Danish experience is particularly interesting because it seems to contradict the assumption that open-ended, full-time contracts are a thing of the past. In the Danish case, there is not much evidence to support...

    • Chapter 13 The Regulation of Supply Chains: An Australian Contribution to Cross-National Legal Learning
      (pp. 233-252)

      One of the key features of the standard employment contract is a direct relationship between an employer and an employee. Labor law scholars have for some time highlighted the artificiality of this restriction on the regulatory scope of labor law, in that it excludes workers deserving of social protection but engaged under nonstandard work arrangements (for Australia, see Stewart 2002). Moreover, in the last three decades, business and government have become increasingly decentralized as a result of contracting out or outsourcing the provision of goods and services. This vertical disintegration or fragmentation of large organizations has meant that many workers...

    • Chapter 14 Organizing Nonstandard Workers in Japan: Old Players and New Players
      (pp. 253-270)

      Japanese union membership reached its highest level in history, 12.7 million, in 1994; by 2006 it had declined to 10.04 million. This lengthy negative trend was arrested in 2007 by two developments. First, traditional enterprise-based unions abandoned their previous practice and began to organize nonstandard workers. Second, a new type of union emerged that organizes workers in multiple small companies employing nonstandard workers. Unlike traditional Japanese unions, these new community unions recruit members on a regional rather than an enterprise basis. This chapter examines how the old players, enterprise-based unions, and new players, community unions, have come to organize nonstandard...

  11. PART V Social Policy in Changing Labor Markets

    • Chapter 15 Safety Nets and Transition Assistance: Continuity and Change in a Liberal Welfare State
      (pp. 273-291)

      To a large extent, the standard employment contract and the welfare state grew up together, emerging hand-in-hand across the middle years of the twentieth century. Some of the earliest welfare policy measures in Europe and Australia were precisely about constructing the type of life course that characterized industrialized, wage-based economies. That is, the prohibition of child labor complemented by the introduction of compulsory education, and the system of old age pensions in effect created both childhood and old age as social phases in life (Leisering and Leibfried 1999). Later these policies were supplemented by a range of income support measures...

    • Chapter 16 Flexible Work, Flexible Pensions: Labor Market Change and the Evolution of Retirement Savings
      (pp. 292-313)

      If a new paradigm of employment has emerged, albeit unevenly, in many developed economies, fundamentally related to the increasing instability of the standard contract of employment (see chapter 4, this volume), it should come as no surprise that a new paradigm in occupational (employment-related) pensions has also gained traction to the detriment of established postwar models. Changes in the normative framing of labor relationships, actual conditions of work, and the legal, regulatory, political, and economic institutions that mediate and structure those relationships are fundamentally related to, and co-construct, changes in the normative framing and institutions of social welfare.

      The corollary...

    • Chapter 17 Work-Family Balance and Gender Equality: Pension Reform and Antidiscrimination Law
      (pp. 314-332)
      JULIE C. SUK

      How might the decline of the standard employment contract affect the future of gender equality? The standard employment contract assumes the long-term, continuous attachment of the full-time worker to the employer (Stone 2004, 3). It was designed with a male breadwinner in mind, a worker with a female partner tending to home and family caregiving (Williams 2000, 64–86). Working mothers have always been on the margins of the standard employment contract because they are more likely to interrupt their careers and work part-time to achieve work-family balance. This is why temporary work, fixed-term work, and part-time work have long...

    • Chapter 18 Social Rights in Changing Labor Markets: Caring for Caregivers in the European Union
      (pp. 333-350)

      Labor markets have been transformed not only by the advent of new and more insecure forms of employment relations but also by the arrival of new populations of workers, among whom women feature most prominently. And the regulation of labor markets has been challenged not only by globalization, technology, and a declining appetite for state intervention but also by the need to harmonize traditional workplace policy concerns with broad social policies, especially those relating to the family. In both contexts, the capabilities approach of Amartya Sen (1999) and Martha Nussbaum (1992) has become highly influential (Alkire 2010). The basic tenet...

  12. PART VI Learning Without Borders

    • Chapter 19 Cross-National Legal Learning: The Uses of Comparative Labor Knowledge, Law, and Policy
      (pp. 353-365)

      Previous chapters offer ample evidence that advanced economies are responding to the growing incidence of nonstandard employment by experimenting with new approaches to labor market regulation. This chapter asks the crucial question: What can we learn from these experiments?

      No doubt some economists still believe that immutable, scientific laws govern all labor markets; some industrial relations and management experts remain convinced that one size of state regulation and one style of management practice fits all economies; and some legal scholars retain their faith in the universal relevance and unfailing efficacy of core labor rights. However, the contributors to this volume...

  13. Appendix The Decline in the Standard Employment Contract: A Review of the Evidence
    (pp. 366-404)
  14. Index
    (pp. 405-422)