Beyond Employment: Changes in Work and the Future of Labour Law in Europe

Citation

Koukiadaki, A. (2007), "Beyond Employment: Changes in Work and the Future of Labour Law in Europe", Personnel Review, Vol. 36 No. 2, pp. 332-334. https://doi.org/10.1108/00483480710726172

The profound changes in the nature of employment practice that today's developed economies experience have spurred an on‐going debate revolving around the appreciation of future trends and the range of responses available to the challenges presented. Since legal institutions and rules allocate resources, authority, risk and accountability among different groups and provide for legitimization of norms, they are associated in both the production of and the response to the transformation of work in the new economy. Within this context, labour law faces a crisis resulting in the call for a reappraisal of well‐established principles and for bridging the regulatory gap between the existing legislative framework and the actual world of work.

At European Union level the debate on the future of work and labour law led to the publication of a 1997 Green Paper entitled “Partnership for a new organisation of work” produced by the European Commission, which was followed by a 1998 Commission communication, and the so‐called “Supiot report”, the English edition of which is the subject of the present book. The report is the outcome of the endeavour of a group of experts from eight different European countries‐Germany, the Netherlands, Sweden, Italy, the UK, Spain, and Belgium, headed by the French jurist Alain Supiot. The expert group that was established by the European Commission's DG V attempted to take a “cross‐disciplinary and transnational approach to the evolution of labour law and to produce a description from a normative perspective of the links between law and new social practice”. The book identifies existing evolutionary tendencies, puts them into perspective and determines their strength: instead of asserting that a particular future is inevitable, it outlines a number of possible futures and provides hence an interesting insight into the future foundations of labour law across Europe. Although the analysis draws comparisons between different EU member states, it does not compare the EU with other parts of the world. Instead, the analysis is confined to countries that were, at the time of drafting the report (1997), members of the European Union; hence, it does not cover the ten new Member States that joined the EU in May 2004 or other countries in central Europe. Despite the restricted geographical scope and the fact that the comparative examples included in the analysis are sometimes limited in place, the report does however give an interesting view of how various EU member states deal with the current transformation of the nature of work. The group's deliberations on the future of labour law are organised around five major themes as identified by the researchers, which are addressed in the first five chapters of this report: work and private power; work and membership of the labour force; work and time; work and collective organisation and work and public authorities. The following two chapters deal with an analysis and assessment of the gender dimension of work and the relationship between labour law and economic performance and the book ends with a summary and suggested guidelines for action for each of the five core themes.

The point for departure for the analysis is the socio‐economic regulatory model that had underpinned labour law since the beginning of the twentieth century and emerged out of the growth of the welfare state. Issues such as the notion of subordination and disciplinary control in the employment relationship in return to high levels of stability and welfare/insurance compensations and guarantees for the employee, the pluralist heritage of labour law and the triangle model whose sides are the nation‐state, employers and trade unions, and the narrow conception of working time that ignored reproductive work and on‐the‐job inactivity, are described by the group as the main elements of the traditional regulatory system of labour law. Today's world of work though, as the analysis delineates, is characterized by the trend towards flexible hours, irregular employment and pseudo self‐employment, increasing flexibility and diffusion of production among complex networks of contractors, subcontractors and homeworkers, diversification of family forms and the entrance of women into the labour market en masse and the decline of the “standard” working week based on the Taylorist form of work organisation. At the same time, the generalisation of the recourse to collective bargaining and the latter's fragmentation call the established structures of union representation into question; the resulting fragmentation of the workforce on the one hand and of collective bargaining on the other goes with growing perceived insecurity of employment.

In search for new securities in a world of growing uncertainties in work, the report advocates an update of the traditional social regulations to include new players and the encouragement of greater collaboration in the workplace by the legal framework, particularly over issues such as training. In order to overcome the alleged incompatibility between ensuring flexibility and providing simultaneously security for workers in the face of the current uncertainty regarding work, the group argues for a reconfiguration of the notion of security and the adoption of a different definition of flexibility that would allow for the pursuit of a collectively efficient response to economic uncertainties and risks. Among other recommendations, minimum universal social rights unconnected to work, such as access to healthcare and minimum social assistance, should be established; a broader concept of work including family activity, training, unpaid work and socially useful work should be adopted; the occupational status of a worker should be based not on the restrictive concept of employment but on the wider concept of work; and “social drawing rights” acting as mechanisms aimed to maintain ‘security in the face of risks’ through the provision of the individual with the means to anticipate, at any moment, long‐term needs and achieve an “active security under conditions of uncertainty” should be provided (p. 222). The reference to the need for development and effective deployment of the resources that the individual should be provided with brings in mind Amartya Sen's theory on capabilities. For Sen (1985, 1999), capabilities, i.e. what an individual is actually able to be or do and thus allow for the achievement of functionings that account for his/her wellbeing, are to be developed in order to establish social justice. Consequently, what matters for public policies in a capability approach to work and welfare is what a person can do and be with the resources over which he/she has command. Though Sen's work is focused on individual capability, the latter cannot operate or be valuable without due and sufficient support by collective resources, rights, institutions and systems of governance (Deakin and Wilkinson, 2005; Salais and Villeneuve, 2005). Developing capabilities is not purely an individual affair; it puts into question the effective operation of social institutions as well as the framing of the labour market. Considering work as a valuable functioning for people and society the report reminds us why social rights cannot be conceived exclusively in individualised terms.

Offering a diagnosis of the main changes in the EU industrialised economies that have given rise to a transformation of work and employment is a daunting task but to a significant extent the book manages to achieve it. Based on those democratic imperatives that motivated the construction of social law Beyond Employment provides a challenging look at the changing nature of work, employment and labour institutions and systems of regulation and welfare in countries of the European Union. The nature of the objective of the analysis, namely to attempt to define the future evolution of the basic categories of labour law in European countries, makes the book particularly useful for policy‐makers but also for academics and students interested in the regulation of the employment relationship. Even so, the suggested guidelines included in the last chapter can be of value to employment practitioners as well since they outline possible methods for connecting future employment regulation with the actual world of work.