Dilemma: Enacting high standard labour laws[i] could increase informal (outlaw) job market and “employment trafficking” as many employers will deviate from the “higher” standard and inversely opt for even lower standard as they find more incentives to join the informal market and stay beside the law. This is an issue observed in many societies and could lead to a conclusion that sometimes we are better off with the status quo of medium or “not so good” labour laws than enacting better laws that could push more employers to evade improved standards and in turn many workers would find their situation worsening rather than improving under the “improved” standards.
Those who argue for this point of view see that trying to regulate/improve labour conditions could result in increase of unemployment or in worsening/deteriorating of the conditions of workers. i.e. abolishing fixed term contracts would affect those already working under such contracts and might lead them to lose their jobs and eventually become out of jobs, or where new social security laws are introduced and enforced, many private sector companies could start to request their new employees to sign their own letter of resignation along with the contract so that the employer retain the right to terminate their employment at any stage of their work regardless of the reason; employees are usually in a weak situation as they can either accept or decline; and if they needed to work then they had no option but to accept.
The answer could be simply
in the rule of law[ii]. Improved labour standards can be rightly implemented and enforced in a democratic situation where rule of law reigns and there is no discrimination and where equality is guaranteed and protected by the rule of law; which in turn would improve transparency (widely defined to include properly applying laws and prohibiting erosion from them). However, while I am not aware of a research done on this specific issue (the relation between transparency and rule of law, or the relation between equality and democracy), we can, nevertheless, look at transparency international reporting[iii] and we deduce a link between what is considered “democratic nations” at one side and the improvement of transparency on the other side, at a first glance that could justify the assumption that in democratic nations with strong and effective rule of law, improved labour standard could be properly implemented with minimum fears of going around them to make the labour situation worse.
in the rule of law[ii]. Improved labour standards can be rightly implemented and enforced in a democratic situation where rule of law reigns and there is no discrimination and where equality is guaranteed and protected by the rule of law; which in turn would improve transparency (widely defined to include properly applying laws and prohibiting erosion from them). However, while I am not aware of a research done on this specific issue (the relation between transparency and rule of law, or the relation between equality and democracy), we can, nevertheless, look at transparency international reporting[iii] and we deduce a link between what is considered “democratic nations” at one side and the improvement of transparency on the other side, at a first glance that could justify the assumption that in democratic nations with strong and effective rule of law, improved labour standard could be properly implemented with minimum fears of going around them to make the labour situation worse.
We can site a hypothetical example and follow its rationale: let’s assume a country introduced a regulation about maternity rights to workers giving the mother the right to get back to work after a period of leave. Some employers seeing in this an unfair regulation could avoid recruiting married or pregnant women to be protected from this rule. In countries where there is no rule of law[iv] employers could get away with this, and the result would be the maternity rights further deteriorated the situation of women at work place by adding a new layer of discrimination at the recruitment level. While where rule of law addresses discrimination issues this regulation could be effective and improve the working conditions for mothers. Rule of law could be the guarantee to apply the spirit of the new higher standards to improve the workers’ situation. So maybe the very first step in improving/reform of labour standards would be to enforce the rule of law; a topic of law and development.
However, rule of law by itself might not suffice to solve the dilemma, but it could provide the context and environment enticing better labour standards. Of course, many arguments could be given as other means to enforce “higher standards” for workers depending on each context and issue. Among them would be the enforcement and monitoring mechanisms, soft vs. hard laws, transnational laws, international, regional or national laws, and of course the nature of the law itself, how it is communicated and its interpretations[v], but enforcing the rule of law would always serve as the precondition for any or all of them.
[i] Could be at national level, regional, or international
[ii] After few research on the question, I came across few readings where I found this answer, I would like to cite here Law and Development as Democratic Practice - Thomas F. McInerney - in International Development Law Organization – Voices of development Jurists Vol .1. No 1. 2004 And Governance, International Law and Corporate Social Responsibility – Jean Claude Javallier – Institute for Labour Studies – Research Series – ILO 2008
[iii] Transparency International website www.transparency.org
[iv] Here we assume that in the absence of rule of law, citizens don’t have channels to raise complaints or raise issues of discrimination to get their rights. Or they can do, but those channels are not effective.
[v] As some might badly interpret a law without intentions to do such but out of -simply- bad interpretation
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