Theorising Labour Law in a Changing World

Towards Inclusive Labour Law

Alysia Blackham, Miriam Kullmann, Ania Zbyszewska, Alysia Blackham, Miriam Kullmann, Ania Zbyszewska

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509921560
• Edition: 1
• Topic: Jura
• Subtopic: Arbeitsrecht

This collection brings together perspectives from industrial relations, political economy, political theory, labour history, sociology, gender studies and regulatory theory to build a more inclusive theory of labour law. That is, a theory of labour law that is more inclusive of non-traditional workers (including those in atypical work, or from non-traditional backgrounds); more inclusive of a variety of collective approaches to work regulation that foster solidarity between workers; and more inclusive of interdisciplinary and complex explanations of labour law and its regulatory spaces. The individual chapters speak to this theme of inclusivity in different ways and offer different suggestions for how it might be achieved. They break down the barriers between legal research and other fields, to promote fruitful and integrative conversations across disciplines. In the spirit of inclusivity and intergenerational dialogue, the book blends contributions from early career and emerging scholars with those from leading scholars in the field, featuring critical commentary from senior labour law figures alongside theoretically and empirically informed work.

1

Introduction

MIRIAM KULLMANN, ANIA ZBYSZEWSKA AND ALYSIA BLACKHAM^*

I.Introduction: The Paradox of Inclusion

In the twenty-first century, the world of work has undergone dramatic changes. How to respond to the increasingly obvious disjuncture between existing legal models and the realities of people’s work lives, the global geographies of production and new modes of service delivery has stirred much critical reflection and debate in labour law scholarship. Over the last 20 years, the search for alternatives to traditional labour law models has involved various theoretical attempts to reconsider labour law’s normative foundations, its purpose and scope, as well as its subjects, institutions, regulatory mechanisms and jurisdictions. These contributions have ranged from more restrained, sometimes defensive reassessments,¹ to bolder, more radical critiques and reconceptions,² or even calls to abandon labour law (as we know it) entirely.³ Spanning this diversity, however, is a general recognition that labour law’s continued relevance depends on its capacity to become more inclusive, representative and broadly solidaristic.

Thus, inclusion, and how to achieve it in theory and practice, is a key theme and point of contention in contemporary labour law scholarship. An enduring question, though, is how and whether legal norms and institutions built around historically specific⁴ and deeply gendered (and racialised) ways of organising work (and society)⁵ can ever be satisfactorily adapted to accommodate evolving labour markets; and, even if they could be so adapted, how representative they would be, given the growing casualisation of work and its widespread informality in the world’s lower income and developing economies.⁶

Even more problematically, the idea of inclusion is itself contested, and able to be co-opted for multiple and disparate political ends. For example, labour law’s internal critique has coincided with longstanding neoliberal policy-led efforts to dismantle or re-regulate existing employment protection regimes,⁷ including on the basis of promoting ‘inclusion’. Paradoxically, deregulation has often been advanced on the premise that employment protections for standard workers contribute to inefficiencies and rigidities in labour markets, not least because they reproduce labour market segmentation (that is, the insider/outsider divide) and, as such, impede the pursuit of more inclusive, diverse, and equal labour markets.⁸ Advanced since the 1990s by the Organization for Economic Cooperation and Development (OECD) and the World Bank, and in Europe by the European Commission, this neoliberal version of inclusion has prioritised broader access to labour markets and paid work, without necessarily guaranteeing work quality or substantive equality to new labour market actors.⁹ Critiques of this policy show that it is not only rooted in a market-first logic, and undergirded by truncated conceptions of redistribution and equality, but also that methodological problems put into question its evidence base, not least by probing the assumed correlation between employment protection and labour market segmentation.¹⁰ Inclusion may also be used as a rationale and justification for coercive labour market reforms, designed to compel individuals to engage or re-engage with the labour market.¹¹ This is particularly apparent in social security reforms, where income support may be lowered or withheld entirely for a failure to engage with labour market processes,¹² ostensibly in a way that is in the individual recipient’s ‘best interests’.

Regardless of (or, perhaps, precisely due to) the paradoxical way in which the notion of inclusion has been constructed in, and co-opted by, mainstream discourse, significant diversification of work arrangements has made the issue of inclusivity an urgent one for labour law. In addressing issues of exclusion and inclusion, many scholars are committed to finding solutions to labour law’s arbitrary distinctions between standard and non-standard employment, and tackling its diminishing ability to protect workers within existing models. These interventions have, for instance, sought to rethink how work relations and parties are classified or identified,¹³ propose new legal categories,¹⁴ reflect on how employment contracts can be extended to cover the self-employed, or how labour law’s purposes can be reconceived to extend its protective ambit.¹⁵

Other scholars, however, have argued that only a major reconceptualisation of labour law’s scope to encompass different forms of work,¹⁶ such as unpaid care work¹⁷ or informal work,¹⁸ can make the law more inclusive and responsive to the realities of people’s (work) lives. True inclusivity might require moving beyond employment to focus on social rights,¹⁹ adopting different models of regulation,²⁰ or considering ways in which labour law intersects with other regulatory fields²¹ to produce particular vulnerabilities and precariousness.²² These more radical approaches may be key to tackling enduring inequalities in accessing employment protection, particularly given the growing diversification of work.

The idea of inclusivity is therefore both a touchstone and point of contention for labour law scholarship. It offers at once a potential guide for the future of labour law reform, and a telling critique of the limits of labour regulation. This is made more complex, of course, by the inherent paradox in the notion of inclusion, and how it is deployed in public policy making. The notion or paradox of inclusion seems to be representative of the bind in which labour law now finds itself, especially in its efforts to develop an encompassing theory or answer to these various challenges.

II.Towards Inclusive Labour Law

This book’s individual contributions originated as papers presented at a two-day workshop held at Maastricht University in the Netherlands in December 2016. The workshop aimed to feature critical, innovative, and interdisciplinary perspectives on labour law and work regulation, and to highlight the work of scholars at different career stages, featuring doctoral and emerging researchers alongside those who are already well established in their fields. As such, the premise of inclusivity was both the organising idea for the workshop itself, and one of the key crosscutting themes that emerged over the course of our discussions.²³

Building on this theme, this collection seeks to contribute to the ongoing debates in labour law scholarship by providing a diverse set of ideas and insights on what a more inclusive labour law theory might be. To be clear, the collection does not put forward a singular, coherent vision, nor do all contributions speak to the idea of inclusion directly. Instead, as emerges in the coming pages, inclusive labour law, as we see it, is a multifaceted umbrella concept, and an approach to scholarship, that is characterised by a number of shared commitments. An inclusive labour law theory is diverse and multiple, reflecting the complexity of the globalised world we live in. As a regulatory field, inclusive labour law eschews exclusions by remaining open to a multiplicity of regulatory approaches, which are capable of addressing different problems, rather than seeking one-size-fits-all solutions. While it pays homage to some of labour law’s traditional values and goals, and is informed by established scholarship and legal history, inclusive labour law is self-reflective and not laden by nostalgia in thinking about contemporary conditions or future possibilities.²⁴ As a scholarly discipline, it embraces diverse conceptual framings, methodological approaches, and scholarly voices. It seeks to engage in a dialogue with other disciplines and across generations of scholars. Finally, as a political project, it is emancipatory and democratic, and seeks to bolster sociality and solidarity between differently situated workers. Inclusive labour law rejects co-optation by economic rationalities and political agendas that seek to weaken protections and fragment solidarity under the guise of inclusivity.

III.Themes and Structure

The individual contributions in this collection are arranged across three parts. Part A considers work regulation in the context of a shifting socio-economic order; Part B reviews the role of collective institutions; and Part C seeks to develop and extend theories already present in labour law scholarship. These thematic sections broadly align with what we identify above as features of inclusive labour law; namely, rejection of economism, commitment to sociality and solidarity, and openness to a multiplicity of regulatory and conceptual tools. These themes are focal points for the book’s organisation, and also traverse the collection, being echoed in many of its contributions. We examine these shared themes in more detail before turning to a description of the book’s three parts and the individual chapters that comprise them.

First, the critique of a regulatory approach or strategy where economic logics are privileged over social, usually non-quantifiable, values, is most clearly articulated by the contributions in Part A.²⁵ That said, the need to prioritise qualitative and normative principles such as democracy, social justice and dignity in our efforts to address the challenges facing labour law is evident in many of the book’s other contributions. Taking a long-term historical perspective, the present moment may be exceptional in the extent to which neoliberal market rationality has usurped the justificatory authority of all other competing normative values (Knegt). Echoing the neoliberal capture of the notion of inclusion we noted earlier, regulatory approaches such as reflexive law have also been appropriated by neoliberal governance agendas, and now need to be re-evaluated (Blackham). When considering ways to counteract the resulting ‘normative erosion’ of labour law, we should not underestimate the role of the courts in challenging so-called ‘emergency measures’ induced under the guise of economic and financial crises (Rodgers) or refining legal doctrines to transform labour law from within (Pietrogiovanni). At the same time, challenging neoliberal and deregulatory ideas and strategies might require the introduction of new conceptual and justificatory tools (Eleveld) or the facilitation of horizontal means for organising production, to address the imbalance of power embedded in the employment relationship (Iossa). While trade unions seem to have adapted to the ‘economic rationales of efficiency and productivity’, they must become credible again in their representation function if they are to regain their role in shaping social consensus and relations (Vergis). Economism can also be rejected from the point of view of those who are excluded from the scope of labour law, as in the case of unpaid care workers, whose work – though societally indispensable – is often not seen as ‘market’ work and as such remains grossly undervalued (Zbyszewska and Routh).

Secondly, this commitment is supplemented by a shared understanding that developing a more inclusive approach to labour law requires us (and labour market actors) to recast and reimagine solidarity, so as to ensure its relevance to the changing world of work. Solidarity is better seen as a bond that extends beyond occupational or class-based allegiances to encompass relations with and between differently situated workers,²⁶ and perhaps even those excluded from the scope of work regulation. As the contributions in Part B make apparent, this has implications for collective forms of organisation and resistance, with a more inclusive approach potentially also being a source of renewal for traditional labour law institutions and collective actors (Zahn). That said, some situations might require the establishment of new types of collective actors and activism, especially where existing ones, even if transformed, might not be suitable (Dias-Abey). Other contributions also address solidarity that extends to relations between workers and those who are, by contemporary labour law, seen as non-workers (Zbyszewska and Routh). By stressing the need to elevate non-market logics or principles, including those operating in the civic sphere (Knegt), re-embed the economy in society through solidaristic structures and collective voice (Vergis), make work organisation more horizontal (Iossa), and rebalance power relations at work (Inversi), the chapters reiterate the importance and potential of collective action in transforming new work arrangements and structures.

Thirdly, and as the book’s contributions make apparent, adopting a one-size-fits-all approach is inadequate, be it in relation to collective representation, regulatory tools, or theoretical perspectives. Instead, different strategies, values and principles are needed to steer a shift away from the current overreliance on neoliberal ideologies. Multiplicity is therefore a third theme that runs through all chapters; that is, the idea that diverse work and national circumstances require multiple tools and types of regulation, actors, disciplinary approaches and methods, as well as a grounding in normative values and goals, to design a decent and socially just labour market in which diverse groups of workers can participate. Multiplicity acknowledges and seeks to accommodate diversity in: the different forms of work and workers captured by the scope of labour law (Zbyszewska and Routh); the economic organisation of work (Iossa); regulatory instruments (Inversi, Blackham); legal institutions (Rodgers, Pietrogiovanni); and ways of representing the diverse workforce (Vergis, Zahn, Dias-Abey). With this diversity in mind as a guiding principle, we can, in the long-term, envision and create a more inclusive labour law.

These three themes are further developed across the three parts of the volume, as we detail below.

A.Part A: Work Regulation and the Socio-Economic Order

The notion of crisis has provided a critical entry point into theoretical debates on labour law over the last two decades. In this first set of contributions, the crisis – both that which afflicts labour law itself (as a regulatory model and academic discipline), and that pertaining to transformation in the socio-economic conditions within which this law is embedded – serves as the basis for reflections on labour law’s constitutive operations and its possible futures. In keeping with the book’s theme of conceptual and methodological multiplicity, the contributions in this Part shed light on this subject using distinctive lenses, ranging from historical and economic sociology to doctrinal approaches. Underpinning all three contributions, however, is a critique of economic and market rationality or, rather, its disproportionate privileging over social concerns, which has permeated broader policy discourse, unsettling (and increasingly influencing) labour law’s justificatory and technical apparatus.

To start, Robert Knegt’s chapter positions labour law’s current adaptation problems and search for new normative and institutional paradigms against a historical account of centuries-long (crises and) transformations in European labour relations. His aim is to expose the dynamics of normative ordering in labour relations, so as to inform future institutional design and dispel a number of common assumptions that constrain labour law’s imagination. While adopting a historical methodology, conceptually Knegt draws on economic sociology,²⁷ which posits an interdependent or co-constitutive relation between societal spheres (including the ‘already embedded market’), that is nonetheless dynamic, negotiated, and subject to change. Normative orders of labour relations, as an aspect of broader social relations and life, undergo similar processes of negotiation, institutionalisation, and change. Knegt illustrates this with examples dating back to Europe’s medieval period, to show how successive models of industrial relations emerged, crystalised, and eventually gave way to others; in each case, their precise institutional design an outcome of negotiated settlement between co-existing and often competing ‘orders of worth’, or justifications for action, associated with particular societal spheres or domains. What is exceptional about the present moment, Knegt urges, is that neoliberal market rationality has usurped the justificatory authority over orders pertaining to ‘civic’ ...