One of the major critics of employment laws is their tendency to exclude certain groups, categories or individuals from their ambit. Many scholars and matter experts investigated this issue and came to interesting findings whether in terms of revealing those excluded groups, the various reasons behind these lagoons in labour law despite the good intentions often times, or the challenges to close those gaps in the laws and preventing recurrence of new excluded groups. In this paper we try to explore some of the “marginalized”[i] groups to draw attention to the issue, so that law reforms could address it.
To note that exclusions are showing at national as well as international level, soft and hard law instruments and in various legal systems from advanced to less sophisticate ones all over the world whether in industrialized developed countries or in less developed and developing states. The reasons behind each are various; while some can be historically traced and linked to the evolution of labour and social laws, trade systems and globalization, others are more linked to modern technologies and contemporary work solutions and life styles. The order below carriers no weight of one group over another and it could be noted that some groups overlap.
Rural work is probably among the vastest unregulated area by employment laws in developing countries where agriculture is most common. Working in land is categorized by family members’ involvement usually without an employer/employee relationship and hence is excluded from work regulations. However Family Work is not unique to agriculture but extends to informal sectors. Workers in informal sectors whether in goods production within the family, or community work are also historically excluded from work regulation, and by extension from employment laws and more critically social protection[ii]. Major reasons of exclusions is the unofficial work relationships (in the case of family work), seasonal work, quasi volunteerism, dissent from official revenue reporting, and the bad social protection systems which discourage self regulation to benefit from social policies.
Atypical work[iii] and disguised employment relationships[iv]; new technology advancement especially in the area of communication, the emerging of multinational enterprises and new management approaches created new types of work within virtual teams, tele-working, flex time work and other forms of work that fall outside the typical work and might be more difficult to arrange especially when coupled with atypical employment relationships (free lancing, agency working, third party work, consultancy, etc). As a matter of fact many new forms of employment relations have emerged due to the expansion of global trade and the decentralization of production. These have started to create difficulties in identifying the employer often time, which leads in turn to deviation from normal application of labour laws and/or exclusion from social protection.[v]
Women; women’s work has historically been excluded from regulation as it falls under non-remunerated work. In addition to rural work and her participation in family work and informal sector as mentioned above, female work in the house hold, domestic work and child bearing as well as other productive work is also excluded from labour regulation and not regarded as productive work when it is not remunerated. Injustice against women at work and gender-specific exclusion are a much wider topic; ranging from discrimination to lower wages. Even remunerated domestic work and other considered typical female work are in many regions excluded from regulation and fall under the informal sector. In addition women form a major part of workers accepting work in non regulated jobs due to their need for remunerated work, hence accepting to give up many of their rights.
When examining in details the component of labour laws (i.e. social protection, anti-discrimination) we can find other groups excluded from workers rights. With varying degrees of exclusion and inclusion and at various levels according to the legal system, we can see many excluded groups whether due to their ethnic or national origins, sexual orientation, disability, age, HIV/AIDS status, family responsibility[vi], and others.
While the above represents gaps in many legal systems, they also represent challenges that could be overcome. Attempts of many legal systems to include larger groups could be cited, such as the legislations to regulate agency and third party workers (most notably the EU Directive on Temporary Agency Work of 2008). The International Labour Organization’s Decent Work Agenda’s third strategic objective “extending social protection: to promote both inclusions and productivity ...”[vii] also carries the meaning of reaching to “marginalized groups” and include them, among others, in ILO regulations, hence at national level eventually. While the terminology is broad and does not specify which groups (exception is the explicit mention of women due to historical background of exclusion under gender and family basis), this also means that the door is open to include more groups that could be at the present, or in the future, excluded from social protection or decent work rights.
As a conclusion we emphasize that different levels of regulations according to the sophistication of work relationships, economic development and legal systems maturity result in turn in different groups being excluded. At the same time, different approaches, perceptions and attitudes to exclusion are found. What is most interesting is that no mater the level of development of the country and its legal system and labour laws exclusion appears to be a common issue and challenge. On a final remark we can add that if we look at labour market from a global perspective we can consider the low wage, lack of safety measures, or other forms of injustice in one nation country as some form of marginalization of one nationality compared to others at an international level, thus a deficiency in the labour law system at a global level.
[i] See Leah F. Vosko, “Managing The Margins: Gender, Citizenship, and the International Regulation of Precarious Employment” Oxford University Press 2010. The work presents an in depth study of groups excluded from employment laws historically and in our modern days and approaches of inclusion. The term Margins is used to designate those groups in Vosko’s work. In this paper however, the term “marginalized” includes other groups as well
[ii] Richard Filali Meknassi, L’effectivité du droit du travail et l’aspiration au travail decent dans les pays en development: une grille d’analyse, Institut international d’études socials, Genève 2007 (discussion paper)
[iii] Arturo Bronstein, International and Comparative Labour Law Current Challenges, International Labour Organization 2009
[iv] Ibid
[v] In relation to atypical work, we need to refer to what Vosko (Leah F. Vosko, “Managing The Margins: Gender, Citizenship, and the International Regulation of Precarious Employment” Oxford University Press 2010) calls Standard Employment Relationship (SER). In a nutshell, this describes the typical work relationship as derived from industrialized countries generally since WWI. It usually includes a. Bilateral Employment Relationship (employer-employee) b. Standardized Working Time c. Continuous Employment (Leah F. Vosko, 2010). Observers of many labour laws today could still see the shadow of Vosko’s SER. However, SER has been challenged and many countries expanded their laws beyond SER especially as working times, flex hours, alternative employment arrangement are becoming more and more the norm rather than exception (Vosko 2010). Nevertheless, in many areas injustice caused by SER-cantered labour regulations are evident. Much work that fall outside SER (part time and seasonal workers, short and limited term contractors, third party consultants) is thus excluded from labour regulations. Some of the groups mentioned in the paper could be classed under SER to a certain extent.
[vi] for sexual orientation, disability, age, HIV/AIDS status, family responsibility Arturo Bronstein, International and Comparative Labour Law Current Challenges, International Labour Organization 2009
[vii] Decent Work Agenda, ILO. Full text can be found on ILO website http://www.ilo.org/global/about-the-ilo/decent-work-agenda/lang--en/index.htm
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