The following is a review of the book:
International and Comparative Labour Law
Current Challenges
Arturo Bronstein
Palgrave macmillan and International Labour Office
International Labour Organization, 2009
ISBN: 978-0-230-22822-1 & 978-92-2-121202-7
The
term “labour law” has been often defined, challenged and redefined. It is argued
that the aim of labour law has gone through various transformations in the last
century that might have stripped it its core identity and even its raison
d’être[i].
Furthermore, labour regulations at national level differ from one country to
another. The stage of development of a state dictates to a high degree its
approach to regulate employment. Its economy structure and its trade relations
with the rest of the world both play an important role in shaping its laws
governing labour[ii].
Yet, in today’s world, a development or a change in work relations in one
country travels across the borders to another with no time, causing alignment
and convergence of laws sometimes, conflict and divergence at other times. Thus,
although looking at labour laws from an international perspective adds an extra
challenge to an already complex and challenging topic due to the different
aspects involved and its multifaceted nature, however, the interlink of the
world economy today makes it an imperative to use this holistic approach by
anyone with serious interest to understand labour law. “International and
Comparative Labour Law, Current Challenges” fulfills this task.
The
book[iii]
of Arturo Bronstein provides a panoramic, yet comprehensive, view of the topic
of international labour law today. It discusses the various intertwined issues
that form the mosaic of labour relations, the changes in work organization and
the challenges they bring along. The
book looks at Labour regulations from global, regional and national
perspectives, explores the impact of global trade and the attempts to address
labour concerns via social clauses in multi- and bilateral agreements. The work
is a publication of the International Labour Office and the author is an expert
in labour law that worked for over 30 years with the International Labour
Office lastly as a Senior Labour Law Policy Advisor and is currently the
Secretary General of the International Society for Labour and Social Security. The
book also relies on reports and papers from known authorities in the field of
International Labour[iv].
The
work is divided into six main chapters and closes with a seventh for final
remarks. It starts by tracing back the origins of labour law (constitutions,
statutory regulations, collective agreements, international and case law) and
emphasizes the labour law model at the “Golden Age of Capitalism” 1945-1975; a
combination of political, economic, international environment that favored full
employment, protectionism and supported social policies. The same conditions
shaped what can be called the standard or typical employment relationship; full
time (permanent) employment contract. Focus of policies, regulations and laws
was on the typical work relation which led to a tendency to ignore or exclude
“atypical” work[v]. From the eighties onwards, international
competition, new technologies, post-Fordist models along with a changing political
environment among others created what Bronstein calls the current crisis in
labour law; namely limited coverage of labour regulations, slow and weak
adaptation to new technologies and emerging type of work, vague territorial
boundaries, and an ideological crisis; neo-liberalism incompatibility with
workers’ rights. With this brief, yet intensive, introductory chapter, the
author sets the stage for the rest of the book. The second chapter addresses
the coverage of labour law, the third explores examples of problematic issues
this “crisis in labour” brings by looking at the security of employment.
Chapter four handles the question of global trade relationship with labour law
while chapter five focuses on the question of rights. The sixth chapter
explores regional perspectives and studies examples from different countries
and regions.
To
answer the question: who is protected by labour law? Chapter two cites three
main trends escaping the reach of regulations: informal economy due to its very
nature, atypical work including disguised employment relationships, and
outsourcing and contingent work. The author demonstrates through examples how
countries are reacting to these issues to overcome them and most of all how the
International Labour Organization work enriched and helped in that area. The
debate about protection under employment and the rights at work are further
discussed in the third and fifth chapters where the author investigates and
lists issues of concern related to labour regulation and how the law can
protect the vulnerable. Bronstein divides those into two groups; security of
employment: where he discusses unfair dismissal and the abuse of fixed-term
employment, and fundamental rights of the person: where he focuses on
discrimination, equal pay and treatment, privacy protection, freedom of
expression, and affirmative actions. Those chapters (2,3 and 5) approach the
problems of individuals in the labour world today, the inequality and
unfairness (chapter 5), the vulnerability (chapter 3) and exclusions (chapter
2) and suggests that it is the labour law responsibility to address them. The
author provides evidence and discussions on the economical and social benefit
of addressing those gaps.
One
can challenge the author by arguing that although the guidelines and
recommendations of the ILO can help countries when the will, and most
importantly the interest, to face those problems exists, the link between ILO
conventions or even recommendations and the changes of national law is neither clear
nor direct. Even when countries have ratified specific conventions, the sad
reality is that this is not an indication of commitment to implement changes
locally because of –among others- the lack of enforcing mechanisms[vi].
It is rather the economic interest of states, and sometimes of big companies,
that drive the changes in labour regulations. As a matter of fact one can
criticize this great focus on ILO on accounts of other legal sources in various
parts of this book[vii].
Bronstein himself touched on the issue in several occasions: in the
introductory chapter when he acknowledges a “crisis” in ideology; that of
neoliberal thinking facing the protection role of states. By extension labour
law today is left to self regulation through free trade and open economy, hence
falling back under the ambit of business law rather than being considered as part
of the individual core right that international public law, hence ILO, shall
address. He also touches on this issue at the beginning of chapter three on the
security of employment and most importantly in his chapter talking about rights
and labour; legal subordination and the fundamental rights of the person: an
uneasy cohabitation in the workplace. The main question shall be whether the
ILO itself is a heritage from an era long passed trying to find its role in the
neo-liberal capitalist world today.
The
global trade and labour law relationship is a subject that cannot be overlooked
in any serious attempt to study labour regulation in our era of globalization.
The book dedicates chapter four to examine this phenomenon from both
philosophical theoretical perspective and empirical factual analytical stand.
It starts by challenging the assumption that low labour cost constitutes a
comparative advantage and moves to the different strategies to reconcile
international trade and labour rights. Of course the failed attempt to involve WTO[viii]
is briefly recorded, the social clauses approach in multilateral and bilateral
agreements are mentioned as well as the ILO declaration on fundamental
principles and rights at work and the references to it in trade agreements, the
unilateral social clauses and finally Corporate Social Responsibility (CSR),
the role of Multinationals, NGOs and standards organization such as ISO as
examples of the emerging approach to voluntarily self-regulation. This chapter
is informative and dense with information and examples. It concludes by evaluating
the CSR initiatives; while the author sees the benefits they bring, he argues
that they remain soft law tools that cannot help individuals unless translated
into enforceable laws. As mentioned earlier, one can use the same argument
about a major part of the ILO work itself that is remaining as soft law often
times.
Chapter
six is where the book brings all issues together and looks at labour regulation
from regional and national perspectives rather than ILO standpoint. It is where
the author excels in brining the theory into living examples and showcases the
different approaches in different regions of the world from Europe to former
soviet states, Latin America to Asia Pacific. The European Union examples
provide a stimulating view of what could be the alternative for international
labour law; the emergence of a supranational law body in the EU with hard law
and strict implementation and monitoring mechanisms could pave the way- if not
already- for a new international law system. The post soviet states
(Commonwealth Independent States- CIS) examples provide an analysis of the
interactions of democracy, economic liberalization and labour law reforms which
add to the dimensions of the topic and demonstrate the complexity, yet the
actuality of labour regulations. The discussions are further brought to life by
the examples of Asia and Japan’s aging population challenge and South Africa’s
unique history and the post apartheid reforms.
[i] Many scholars attempted and still
attempt to define “Labour Law” according to its functions, goals, history and
role. For stimulating views on the definition and transformation of the term
see “The Idea of Labour Law” edited by Guy Davidov & Brian Langille, Oxford
University Press, 2011
[ii] For in depth analysis of the
relation between international trade and labour law see Labour Laws and Global
Trade, Bob Hepple, Hart Publishing, 2005
[iii] Executive Summary of the
book: http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/article/wcms_107847.pdf
[iv]As per the Forword by Giuseppe
Casale and Kazuo Sugeno pp xii-xiii
[v] For a comprehensive account
of the history of standard employment relations, challenging of atypical work
and how to face them see Managing The Margins, Gender, Citizenship, and the
International Regulation of Precarious Employment, Leah F. Vosko, Oxford
University Press, 2010
[vi] See Bob Hepple 2005 above pp
39-56
[vii] Not to underestimate the
tremendous work of the ILO which this book reveals, the weakness highlighted
above is inherent in many international law bodies and as a matter of fact ILO
is much more advanced in its tripartite structure than the majority of
international bodies of the UN for example that are becoming mere instruments of
few countries to practice political pressure, bargain economic deals, or
advance their own agendas in a flagrant manner without any consideration to the
values enshrined in their establishing constitutions.
[viii] For detailed account see Bob
Hepple 2005 above specially pp129-151
[ix] Arturo Bronstein, International and Comparative Labour Law, Current Challenges, ILO and Palgrave macmillan, 2009 p258
[ix] Arturo Bronstein, International and Comparative Labour Law, Current Challenges, ILO and Palgrave macmillan, 2009 p258
No comments:
Post a Comment