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  Contingent Work
 
Appleton, Simon & Knight, John & Song, Lina & Xia, Qingjie, "Contrasting Paradigms: Segmentation & Competitiveness in the Formation of the Chinese Labour Market", Journal of Chinese Economic and Business Studies v. 2 no3 (September 2004) p. 185-285

Abstract:
This article argues that the current labor market in urban China is a paradigm of a “three tier” labor market (as opposed to a competitive labor market) by comparing wage functions across categories (“tiers”) of labor. The first tier consists of “non-retrenched urban workers,” workers that are employed and not laid off since 1992. The second tier consists of “re-employed urban workers,” workers who were laid off, but were employed when the survey was conducted (year 2000). The third tier consists of “rural-urban migrants,” workers who migrated from rural areas. The first section gives a historical background on the labor market reforms that China had implemented in the 1990s in an effort to create a more competitive labor market. The two most dramatic changes were the end of the lifetime employment system and the increased government permission of rural-urban migration. The second section describes the data (number of households, description of workers) and methods used (wage functions, panel data) to compare the three tiers of the labor market. It also explains econometric issues that may arise, such as sample selectivity bias. The third section analyzes the test results of the wage functions. The authors state that the findings suggest workers in urban China are rewarded differently according to what category they fit in, with the first tier having the highest wage premiums and the migrants having the lowest in absolute terms. The fourth section investigates whether certain characteristics (such as education, age, occupation, etc.) could explain these wage differences by standardizing them in the wage functions. The authors find that the results imply that non-retrenched urban workers (first tier) have a distinct wage advantage over the other two tiers. Though the article concludes that Chinese urban workers are currently in a segmented labor market, it expresses hope of emerging signs of competitiveness.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Immigration
Newsletter: Vol 4, Issue 2
 
Araki, Takashi, "Changing Employment Practices, Corporate Governance, and the Role of Labor Law in Japan", Comparative Labor Law & Policy Journal v. 28 (2007) p. 251-275

Abstract:
Despite widespread media and scholarly reports of the demise of Japan's system of highly developed internal labor markets and lifetime employment, in this article the author argues that the job protections characteristic of Japanese labor relations have remained largely undiluted, but that the share of the "non-regular," (part-time, fixed-term, contingent, or "flexible") work force has grown dramatically in recent years, so that a growing percentage of the overall workforce has no job security. The author argues that it is precisely because Japanese unions and the courts have successfully defended the job security of the "regular" workforce, that employers have increasingly resorted to using non-regular employees and to what the author calls "qualitative flexibility," meaning implementation of lower labor standards as cost-saving measures when "quantitative flexibility (meaning the outright elimination of redundant positions) is not possible. Despite a series of recent reforms in several areas of Japanese labor law, the author argues that these have generally steered a "pragmatic" middle ground between "security" and "flexibility." By contrast, potentially more far reaching changes have occurred in Japanese corporate law, which since 2002, allows companies to replace their internally promoted directors (often former leaders of the enterprise unions at their respective firms) who are sympathetic to employee job protections, with externally selected directors, who seek to maximize stock value and who regard the shareholders, rather than employees, as the primary constituency to whom they must answer. The author notes that, while Japanese corporations since World War II have largely behaved like their European counterparts, by ensuring worker participation in the direction of the enterprise, Japanese law is modeled on, and more closely resembles, U.S. corporate governance structures. While the vast majority of Japanese corporations have yet to adopt the U.S.-style corporate governance structures, the author notes that, at least from the standpoint of existing Japanese law, that option is much more open than is a wholesale dismantlement of the job protections characteristic of Japanese labor law. The article concludes with a review of recent additions and modifications to Japanese labor law and with the author's recommendations for continuing a path of "pragmatic" and "non-ideological" reforms, which the author characterizes as steering a middle ground between the "rigid" security of many European systems and the hyper-flexibility characteristic of the United States.

Subjects: Case Studies: Country-Specific, Contingent Work, Corporate Governance, Flexibilization, Japan
Newsletter: Vol 6, Issue 6
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Bartkiw, Timothy J., "Baby Steps? Toward the Regulation of Temporary Help Agency Employment in Canada", Comparative Labor Law & Policy Journal v. 31 no1 (October 2009) p. 163-206

Abstract:
This article identifies five harms to labor standards resulting from temporary employment agencies and assesses Canadian efforts to address these harms. These harms are: (1) increased precariousness in compensation and job security for all workers resulting from the downward pressure created by a temporary workforce; (2) agency contracts that erect barriers for temporary workers obtaining full-time employment with an agency’s client; (3) under-enforcement of labor standards due to the lack of clarity regarding who is the true employer in a triangular work relationship, as well as statutory loopholes for agencies; (4) structural disincentives to training and safety inherent in a transitory workforce; and (5) temporary workers’ practical lack of access to unionization. The article then summarizes four “baby steps” that Canada has made toward regulation of the temporary work relationship that have resulted in the passing of legislation in one province. The author concludes that these steps are inadequate because they focus primarily on individual employment rights, without addressing the structural threat to labor standards posed by temporary workers’ lack of access to unionization.

Subjects: Contingent Work, Employment Law
Newsletter: Vol 10, Issue 3
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Befort, Stephen, "Revisiting the Black Hole of Workplace Regulation: A Historical and Comparative Perspective of Contingent Work", Berkeley Journal of Employment and Labor Law v. 24 no1 (2003) p. 153-178

Abstract:
This article discusses the rise of contingent work in the U.S. and the problems that result from the fact that a growing number of American workers do not fall under the protections of existing labor regulations. Befort argues that this regulatory black hole is not consistent with the intent of labor regulation and creates a dual labor market in which there are a growing number of second-class workers. The author takes an historical perspective to understand how the changing workplace has evolved to leave these workers out. Befort identifies three main problems with exiting labor regulations. First, threshold jurisdictional requirements are calibrated to a long-term employment model, not one in which workers change employers and status frequently. Second, the definition of covered employment under the regulations is subject to gross cases of entrepreneurial manipulationby employers. And third, Befort identifies a labor law void in leased and indirectly employed workers are not covered by the protections of the NLRA. The author turns to international comparisons to derive proposals for extending legal protections to cover this growing segment of the workforce. His specific proposals are: (1) to expand the reach of the existing labor regulations, (2) to give leased employees some collective bargaining options, and (3) to increase portability of employment benefits.

Subjects: Contingent Work
Newsletter: Vol 2, Issue 10
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Boonstra, Klara, "Government Responsibility and Bargaining Scope Within Article 4 of ILO Convention 98", International Journal of Comparative Labour Law and Industrial Relations v. 20 no2 (Summer 2004) p. 445-464

Abstract:
This article examines two recent decisions made by the Committee on Freedom of Association (CFA) of the International Labour Organization (ILO) concerning the ability of governments to legislate about subjects that are covered by collective labor agreements. The decisions concerned legislation covering part-time work in Denmark and the retirement age in Sweden. In both cases, the legislation at issue shifted a specific employment condition from the collective bargaining arena to the enterprise level where an individual and his employer could negotiate a term that deviated from the collective agreement. The CFA concluded that the statues failed to comply with ILO standards on the right to collectively bargain, and recommended that the parties involved work together to come up with a mutually acceptable solution. The author uses these cases as a springboard to discuss and propose that a closer examination is needed in determining: (1) the proper division of roles between government and social partners in the area of employment conditions, (2) the subjects that fall within the bargaining scope, and (3) where the convergence lies in respect to the interests of the government and social partners.

Subjects: Case Studies: Country-Specific, Contingent Work, International Labour Organization (ILO)
Newsletter: Vol 3, Issue 11
 
Borak, Jill, "A Wink and a Nod: The Hoffman Case and Its Effects on Freedom of Association for Undocumented Workers", Human Rights Brief v. 10 no3 (Spring 2003) p. 20-22

Abstract:
In this article, the author discusses the United States Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB (“Hoffman”) that undocumented immigrants improperly discharged by U.S. employers for union organizing activities are not entitled to backpay. She notes widespread concern among workers and labor rights advocates that Hoffman represents a substantial reduction in labor rights. The author begins with a discussion of the international human rights instruments governing workers’ rights, as well as the primary law governing U.S. workers’ rights -- the NLRA. The author then examines the Hoffman decision and explores the effects the decision will have on workers’ rights. Finally, the author examines actions taken in the international fora in response to Hoffman, including a request for an advisory opinion from the Inter-American Court of Human Rights and a complaint to the ILO Committee on Freedom of Association. The author concludes by arguing it is unlikely that federal legislators will propose legislation to assist undocumented workers anytime soon, thus leaving it to advocates at state and local levels to promote workers’ rights and international fora to continue to exert pressure on the U.S. government to balance its immigration policy with the rights of workers.

Subjects: Contingent Work, Undocumented Workers
Newsletter: Vol 3, Issue 8
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Cooney, Sean & Biddulph, Sarah & Kungang, Li & Zhu,Ying, "China’s New Labour Contract Law: Responding to the Growing Complexity of Labour Relations in the PRC", University of New South Wales Law Journal v. 30 no3 (2007) p. 786-801

Abstract:
This article provides a discussion and evaluation of China’s New Labour Contract Law. First, the article explains how the previous Labour Law of 1994 was inadequate in the increasingly complex and privatized nature of the Chinese labor market and how the new law was intended to provide a comprehensive framework for the formation, performance, modification and termination of labor contracts. Secondly, the article discusses the lobbying efforts of labor and business to shape the outcome of the new law. The article then evaluates the effectiveness of the law, including some of its more controversial provisions. For example, by limiting employers’ ability to change work rules governed by employment contracts, the law may have the unintended effect that employers will limit the scope of such agreements to escape regulation. Similarly, the compromise between labor and business lobbying groups over the responsibility of employers towards terminated workers has resulted in a two-tier system in which “regular” employees enjoy significant protections while “casual” employees have few protections. One of the most important aspects of the law, according to the author, is that labor contract agencies must now also provide contracts to their employees – of a minimum two years. The new law’s treatment of post-employment non-compete clauses is also controversial. Though the law restricts this pervasive practice to some extent, the law’s provisions on this subject rely largely on voluntary compliance by employers. This article concludes that while this new law is often an uncomfortable compromise between the demands of competing interests, overall it is an improvement in efforts to clarify the employment relationship and establish minimum labor protections for China’s large privat-sector workforce.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Employment Law, Health and Safety, Working Hours
Newsletter: Vol 7, Issue 3
 
Filho, Roberto Fragale, "Comparative Labor and Employment Law and Policy in the Next Quarter Century: Celebrating Twenty-Five Years and Speculating Over the Future From a Brazilian Perspective", Comparative Labor Law & Policy Journal v. 25 (Fall 2003) p. 21-31

Abstract:
This article speculates about the future of labor law from the Brazilian perspective. In Part I, the author describes four different conflict theories that attempt to explain the social dynamics that underlie labor law: "capital vs. labor," "qualified labor vs. non-qualified labor," "social inclusion vs. social exclusion," and "labor vs. post-labor." The author shows how each conflict theory predicts a different future for labor law. For example, the author argues that if the field of labor law is characterized as a conflict between capital and labor, the law will not undergo major changes. However, if the field is characterized as a conflict between labor and "post-labor," labor law will have to address problems caused by short-term jobs, work force mobility, the need for continuous education, and the increasing importance of "free time." The author concludes Part I by arguing that Brazil provides a real-world laboratory for investigating the different conflict theories. In Part II, the author discusses how labor law has affected the Brazilian court system. He notes that the courts have been overwhelmed with approximately two million labor cases a year for the past ten years. The author investigates two different approaches to solve the problem of judicial crowding: making changes in the judicial system, and using alternative dispute resolution and class action suits to reduce of the number of cases heard by courts. In Part III, the author draws on the Brazilian experience to suggest an agenda for comparative labor law scholarship, arguing that labor law studies must integrate with other disciplines.

Subjects: Case Studies: Country-Specific, Contingent Work, Labor Rights in General (Misc.)
Newsletter: Vol 4, Issue 4
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Finley, Maxmillian, "The Bitter with the Sweet: The Impact of the World Trade Organization's Settlement of the Banana Trade Dispute of the Human Rights of Ecuadorian Banana Workers", New York Law School Law Review no48 (2004) p. 815-860

Abstract:
In this article, the author examines how the World Trade Organization's Settlement of the banana trade war affected Ecuadorian banana workers. The author argues that the resolution will not benefit the workers because the Ecuadorian government and multi-national corporations profit from denying workers their basic human rights to organize and form unions. Finley notes that although the Ecuadorian Constitution and Labor Code give employees the right to organize, the laws do not require workers to be reinstated who have been fired for organizing activities. Additionally, the growing use of permanent, temporary, and subcontracted labor means that many banana workers are not recognized as "employees" under the law and hence receive no protection. Finley contends that multinational corporations contribute to the problem by using guaranteed supply contracts with banana producers in lieu of directly owning plantations. As a result, multinational corporations avoid liability for labor violations by shifting the responsibility to the local producers with whom they contract. The author observes that the Ecuadorian workers might be able to bring lawsuits against the U.S. multinational corporations in U.S. courts under the Alien Tort Claims Act. However, because most Ecuadorian workers do not have the time and resources to pursue litigation, Finley contends that the U.S. legislature should suspend aid and benefits to Ecuador to send a strong message of disapproval. Finally, Finley proposes actions that Ecuador and multinational corporations can take to provide the Ecuadorian workforce with the right to organize.

Subjects: Alien Torts Claims Act, Case Studies: Country-Specific, Case Studies: Industry-Specific, Contingent Work, World Trade Organization (WTO)
Newsletter: Vol 4, Issue 9
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Freedland, Mark , "Developing the European Comparative Law of Personal Work Contracts", Comparative Labor Law & Policy Journal v. 28 (2007) p. 487-497

Abstract:
This article summarizes ongoing research into the comparative law of employment contracts in North America, Great Britain and continental Europe. The author argues that the continental European labor law is generally less inclined than its English counterpart to make categorical exclusions of temporary and contingent workers from "employee" status based on assumptions about long-term labor contracts as a societal norm. He also argues that continental European legal systems have generally had a more flexible notion of "employer," which, in turn, may be more useful for recognizing a continuous employment contract between a worker and successive proprietors or in situations involving employment contracts with joint or multiple employers. Further, the author argues that because different countries have different doctrines regarding the ability of individual employees to contract out of statutory labor standards, the resulting divergence of regulations has made it increasingly important for labor law scholars to examine labor law in a comparative perspective.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Conflict of Laws, Contingent Work, Employment Law, European Union, Flexibilization, Working Hours
Newsletter: Vol 6, Issue 12
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Fuchs, Maximilian, "The Bottom Line of European Labour Law (Part II)", International Journal of Comparative Labour Law and Industrial Relations v. 20 no3 (Fall 2004) p. 423-444

Abstract:
This is the second part of a two-part series examining the development of European Labor Law, a field that has been characterized by the tension between economic and social interests. The article begins with a description of the right to freedom of movement of labor within the EU, an area that most experts tout as a success story of European integration. The author then explores the influence of European labor legislation on national labor law in the areas of freedom to make employment contracts, anti-discrimination, atypical employment, reconciliation of family life and work, company restructuring, collective labor law, and employee health and safety protection. He evaluates each of these areas in light of the piecemeal nature of European Labor Law and the continuing need to strike a balance between economic and social objectives.

Subjects: Contingent Work, European Union, Health and Safety, Labor Rights in General (Misc.)
Newsletter: Vol 4, Issue 7
 
Fudge, Judy, "Self-Employed Worker: A Canadian Perspective on the Scope of Employment Standards, Labor Rights, and Social Protection: The Good, the Bad, and the Ugly", Comparative Labor Law & Policy Journal v. 31 no2 (Winter 2010) p. 253-265

Abstract:
This article compares the legal frameworks for regulating self-employment in Spain and Canada. In Spain, the recently adopted Self-Employed Workers Statute attempts to guarantee four sets of rights for all self-employed workers: 1) basic rights, such as nondiscrimination and payment guarantees; 2) occupational health and safety rights; 3) collective bargaining rights, and; 4) social security rights. The author argue that Canada’s Federal Labor Law lags behind Spain in several respects. Importantly, only dependent contractors have collective bargaining rights in Canada. Both countries lack minimum wage and maximum hours of work laws for self-employed workers, and neither country has found a satisfactory way of distinguishing between dependent and independent contractors. The author concludes that while Spain has made progress, both Spain and Canada should do more to move beyond a classic conception of labor rights that focuses on a contract in a singular workplace.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Contingent Work
Newsletter: Vol 9, Issue 7
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Ganesh, Aravind R., "Appointing Foxes to Guard Henhouses: The European Posted Workers' Directive", Columbia Journal of European Law v. 15 (2009) p. 123-142

Abstract:
This article discusses the implications of recent decisions by the European Court of Justice affecting the representational rights for the one million "posted" workers working temporarily under contract in another EU member state than the one in which they live. Cases such as Laval and Viking illuminate the tensions between the EC Directive for posted workers, which establishes minimum standards, and collective bargaining agreements, which seek to raise standards. The author argues that the governance structure established by the Directive is inadequate to give "voice" to posted workers because the member states, unions, and businesses that are empowered to engage in a "social dialogue" about working conditions for posted workers have interests in conflict with those of the workers themselves. For instance, while both member states and unions are concerned about the downward pressure on wages due to the importation of cheaper labor, traditional unions have little institutional interest in organizing transient workers while member states fear posted workers will drain their social welfare coffers, giving them little incentive to broaden domestic protections for protected workers. Likening the member states and unions to "foxes," Ganesh further maintains that the European Commission's efforts to remedy the disempowerment of posted workers by encouraging greater cooperation and transparency among the partners of the "social dialogue" will prove hollow unless it includes the right of posted workers to be heard.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 2
 
Goldin, Adrian, "Fairness at Work (The Authurs Report): An Argentinean Perspective", Comparative Labor Law & Policy Journal v. 29 no4 (2008) p. 533-546

Abstract:
This article begins by summarizing the Arthurs report on Federal Canadian employment law reform, and comparing it to Argentinean Mario Deveali's effort to define "Labor Law science" over fifty years ago. The author finds that the Arthurs Report is oriented toward values such as decency, the market economy, and flexicurity -- i.e., the reconciliation of worker security and flexibility in employment. He shows that Deveali's approach is more technical in nature but similar in goals to Arthurs. The author proposes that each country's application of flexicurity should be unique. In Argentina, the public's distaste of neoliberal policies in the 1990s necessitates a clear break from those policies before the principle of flexicurity could be legitimized. The author concludes by highlighting the potential for comparative research on employment and labor standards in Canada and Argentina. Both countries are federalist, but whereas Canadian provinces are empowered to create employment and labor laws, the Federal Government is charged with doing so in Argentina.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Contingent Work, Flexibilization, Labor Mobility
Newsletter: Vol 8, Issue 8
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Josephs, Hilary K., "Measuring Progress Under China’s Labor Laws: Goals, Processes, Outcomes", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 373-394

Abstract:
It wasn’t until 1994 that China finally enacted a series of labor laws that essentially formed a labor code. In 2008, Congress’ Employment Contract Law (ECL) became effective. Some accomplishments of the ECL include the codification of the right to recover unpaid wages as a civil action for debt, a requirement that full-time employment contracts be signed or else a presumption of indefinite employment may be created, a limit on the maximum length of a probationary employment period, and increased protections for employees with temporary employment. The ECL, however, does not increase protections in other substantive areas of labor law. For example it places no real limitation on the ability of the government to shrink employment in the state sector, and does not alter the inequality between urban and rural populations. Furthermore, even though China, as a member of the International Labour Organization (ILO), is bound to provide its workers with freedom of association and the right to collective bargaining, the ECL does nothing to advance these rights. Chinese workers will be no more likely to successfully form independent unions than they were prior to the ECL’s enactment. Overall, the ECL does make some changes to increase labor protections, but it does not represent a radical substantive change from the structure created by the 1994 labor laws.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Employment Law, International Labour Organization (ILO)
Newsletter: Vol 9, Issue 2
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Kuwahara, Yasuo, "Migrant Workers in the Post-War History of Japan", Japan Labor Review v. 2 no4 (Fall 2005) p. 25-47

Abstract:
This article explores the rekindled interest in the issue of foreign workers in Japan today. The first section describes the prevalence of foreign workers throughout all of Japan's labor force, and showing how while foreign workers are ubiquitious, they are not wholly accepted by Japanese society or Japan's government. The second section explains the historical roots of the category, 'foreign workers of Japanese descent. These are Japanese people who emigrated out of Japan as early as 1908 to look for work, who's descendants are now coming back to Japan to earn a living -- a pattern that has been termed "U-turning." The third section discusses the causes and factors of Japan's increasing dependence on foreign workers, including labor shortages in Japan and Japanese workers shunning of types of jobs that are considered "dirty" or "dangerous (i.e. non white-collar jobs). The next section explores several issues that have arisen with the influx of foreign workers, including the problem of foreigners overstaying their visas to illegally work in Japan, the abuse of training programs by employers, and the tension between workers of Japanese descent, who are allowed to work in Japan legally, and illegal foreign workers who are not. The article concludes that Japan's government needs to set up a single administrative body that can discuss and implement practical solutions to accommodate the steady and continual increase of foreign workers and encourage true acceptance of foreign workers in Japan.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Japan, Labor Mobility, Undocumented Workers
Newsletter: Vol 5, Issue 2
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López-Pabón, María, "Immigration Law Spanish-Style: A Study of Spain's Normalizacion of Undocumented Workers", Georgetown Immigration Law Journal v. 21 (Summer 2007) p. 571-593

Abstract:
Lopez discusses Spain's recent efforts to regularize the status of undocumented workers by granting amnesty to those who met certain employment and residence requirements. Spain, like the U.S., has become a destination for immigrants despite border policing--particularly from Eastern Europe, South America, and Africa--due to unprecedented job growth. After providing a background on Spain's immigration laws and trends, including previous attempts to regularize the undocumented, Lopez discusses the poor working and living conditions and racial antagonism suffered by a Moroccan community in one Spanish city to demonstrate the perilous circumstances faced by the undocumented. The author then discusses the main features of the 2005 amnesty, which required employers to petition on behalf of workers; over 700,000 were given work and residence permits for up to three years. Lopez then addresses the criticisms of EU member countries that Spain was "fueling"more immigration by opening the proverbial "door" and undermining the EU's larger immigration scheme. Lopez dismisses the critiques as "more political than legal"through her analysis of applicable EU laws and treaties concluding that EU members states retain the ability to determine their own immigration matters. Regardless of the legality of Spain's program, Lopez takes Spain to task for instituting an inflexible short-term solution that 1) did not make legal immigration more accessible, 2) failed to capture all undocumented workers, 3) emphasized workers' outsider status and 4) tied workers' status to employers thereby rendering workers vulnerable to exploitation.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 2
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Lu, Haina, "New Developments in China's Labor Dispute Resolution System: Better Protection for Workers' Rights?", Comparative Labor Law & Policy Journal v. 29 no3 (Spring 2008) p. 247-268

Abstract:
This article describes in detail China's second interpretation of its 1995 Labor Dispute Resolution (LDR) system, and then evaluates the implications of the second interpretation for workers' rights. The LDR, especially in the context of the increasingly market-oriented economy, initially complicated the resolution of labor disputes and still leaves all parties-workers, employers, labor law enforcement personnel and lawyers-unsatisfied. Although the LDR has been structurally weak and poorly implemented, the second interpretation does extend its jurisdiction and provide better protection for some fundamental rights for workers. The greatest concern is that rural migrant workers are mostly still not covered by the LDR system or lack the resources to act on aspects that apply to them. The author argues that presently the Chinese system needs not only technical improvements but respect for rule of law and a commitment to fundamental rights. Furthermore, since China has ratified the International Covenant on Economic, Social and Cultural Rights and 25 ILO conventions, it is obligated to protect and promote workers' rights contained in these international treaties and to remedy violations.

Subjects: Case Studies: Country-Specific, China, Contingent Work, International Labour Organization (ILO)
Newsletter: Vol 7, Issue 9
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Mizushima, Ikuko, "Recent Trends in Labour Market Regulations", Japan Labor Review v. 1 no4 (Fall 2004) p. 6-26

Abstract:
This article provides an overview and critique of the recent revisions in Japan’s Employment Security Law (ESL) and its Law for Securing the Proper Operation of Worker Dispatching Undertakings and Improved Working Conditions for Dispatched Workers (Worker Dispatching Law). The article begins with a summary of recent amendments to the Employment Security Law in which, to respond to the changing labor market, the government relaxed the regulations placed upon employment placement agencies. The amendments reduced restrictions on the issuance of licenses for employment placement agencies to operate and expanded the entities that could run free employment placement services such as schools. The author recognizes that deregulation could take away laws that were passed for the purpose of protecting job-seekers, but she argues that the regulations still in place are sufficient to protect the public. The next section discusses the amendments to the Worker Dispatching Law. A worker dispatching agency is the equivalent to a temp agency in the United States. The amendments include regulations for “Temp to Perm Service,” notification requirements of working conditions, and an abolition of the ban on worker dispatching in manufacturing jobs. The last section examines three legal issues that the revisions of the Worker Dispatching Law raise. First, the author asks if the “Temp to Perm Service” will become the new method of matching workers with jobs. Before this amendment, dispatching workers for the purpose of introducing a permanent job was prohibited. Though the author recognizes its advantages, she cautions that it leaves workers with less protection. Next, the author argues that the revisions strengthen the worker dispatching agency and its company-client’s accountability to the worker. The last issue is whether the expansion of worker dispatching will generate more employment opportunities or lead to unstable employment. The author concludes there will be both.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan
Newsletter: Vol 4, Issue 6
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Ogawa, Makoto, "Current Issues Concerning Foreign Workers in Japan", Japan Labor Review v. 2 no4 (Fall 2005) p. 6-24

Abstract:
This article gives an overview of the issues concerning foreign workers in Japan, including detailed survey data of the actual workers, policies in dealing with their influx, and general public opinion toward them. The first section describes why current conditions in Japan's labor market -- specifically falling fertility rates, an increasing proportion of elderly people, and a high unemployment rate -- have put the issue of foreign workers in the spotlight. The second section discusses how the basic policy in Japan is to promote acceptance of foreign workers, favoring skilled (i.e., professional or technical) as opposed to unskilled workers. The third section explores the circumstances that affect foreign workers in Japan, including programs to facilitate foreign workers entrance into Japan's labor market, public opinion on foreign workers ( i.e., negative), specific fields in which foreign workers find employment (i.e, entertainment and manufacturing), and residency requirements. The fourth section examines policies that affect foreign workers, the 'double-payment' problem in which foreign workers must make pension contributions in both Japan and one's own country, and issues concerning the education foreign workers' children. The next section reviews proposals to deal with foreign workers in Japan, including advocating town hall meetings be held to collect suggestions, and the adoption of a comprehensive policy that embraces and takes full advantage of the potential of foreign workers. The final section states that Japan is negotiating with countries in Asia to establish economic partnership agreements to establish conditions for bringing in foreign workers from their respective countries. The article concludes that this issue of accepting foreign labor must be looked at in a comprehensive manner, but also cautions prudence, as issues such as this one require public consensus.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Japan, Labor Mobility, Undocumented Workers
Newsletter: Vol 5, Issue 2
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Ohmi, Naoto, "Problems of Foreign Worker Policy in Japan - From the Labor Union Viewpoint", Japan Labor Review v. 2 no4 (Fall 2005) p. 107-124

Abstract:
The author, a trade union officer, expresses his views on the issue of foreign workers in Japan. The first section reviews the various issues that arise with the increased number of non-Japanese workers in Japan, including the rise of indirect employment (i.e., dispatch or contract workers), the rise of foreign residents working illegally, and the abuse of foreign trainee programs by employers. The next section discusses Japan's increased focus on free trade agreements ("FTA") and economic partnership agreements ("EPA") with other countries. The author focuses on occupations in the medical and nursing field where there is a shortage in Japan and conflicting views by the Japanese government in allowing foreign workers to fill that gap. The author then examines Rengo's (Japan's nationwide organization of labor unions) views on foreign workers, which advocates the respect of human rights of all foreign workers residing in Japan, but cautions against the acceptance of unskilled foreign workers. The fourth section examines the economic partnership agreements that Japan has with Thailand and the Philippines, both which require the foreign workers from their respective countries to obtain Japanese certification before they are allowed to work in the nursing field in Japan. The article concludes with a discussion of the current labor policy on foreign workers. He argues that the existing policy of only addressing 'entry' issues (i.e., entry requirements, residential statuses) is not sufficient to respond to the issue of foreign workers in Japan, and stresses the importance of adopting a 'post-acceptance' policy to deal with the long-term social and economic effects.

Subjects: Case Studies: Country-Specific, Contingent Work, Free Trade Agreements, Immigration, Japan
Newsletter: Vol 5, Issue 5
 
Prelipceanu, Raluca, "The New Migration Patterns of Educated Romanians to the EU: What Challenges for the Individuals and for the Nation-State", Romanian Journal of European Affairs v. 8 no4 (2008) p. 75-87

Abstract:
Recent years have seen a spike in migration of highly educated Eastern European professionals to European Union member countries. That migration has been driven by the draw of more financially remunerative work and has been facilitated by the immigration policies of European Union member countries which tend to favor highly skilled workers. This article explores the effects of that migration though a case study of highly skilled Romanian immigrants living in France. These immigrants face challenges with social and professional integration in France, but are able to maintain close ties to Romanian because of the rise of cheap travel and communication. The maintenance of these close ties in turn facilitates a convergence between the two cultures. This article concludes that the challenge now facing the Romanian government with respect to this migration is how to encourage the positive effects of this convergence throughout the Romanian economy.

Subjects: Case Studies: Country-Specific, Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 3
 
Ratti, Luca, "Agency Work and the Idea of Dual Employership: A Comparative Perspective", Comparative Labor Law & Policy Journal v. 30 no4 (Summer 2009) p. 835-874

Abstract:
From the principle that every labor law system can gain practical insight by learning about others, this article focuses on how agency work operates in Italy and the United Kingdom. First, the article takes note of the rise of employment agencies, which treat workers as commodities and make it more difficult for the law to apply employment protections to a user firms’ conduct. While Italy has traditionally prohibited the use of labor intermediaries, a 1997 European Court of Justice (ECJ) decision required the country to allow such for agency work arrangements. In contrast, in Britain, firms’ choices about how to employ their workforce, including the use of agency work, has gone relatively unregulated. In recent years, both countries have added a complex system of licensing and regulations for the use of labor market intermediaries, while still attempting to adhere to their respective employment regulation traditions. Italy has created a systematic discipline for agency work that includes requirements that all employment contracts be written and that agency employers are held accountable for the health and safety of workers. Britain has largely deferred to the contracting and contracted firms but has extended coverage to them under its National Minimum Wage Act, and its Health and Safety at Work Act. Further, while the European Parliament approved a directive in 2008 which introduced the principle of equal treatment between agency workers and workers directly employed by the user firm, divergence between British and Italian system of agency work regulation continues.

Subjects: Comparative Labor Law, Contingent Work, Employment Law
Newsletter: Vol 10, Issue 9
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Sankaran, Kamala, "The ILO, Woman and Work: Evolving Labor Standards to Advance Women’s Status in the Informal Economy", Georgetown Journal of Gender and the Law v. 3 no3 (Summer 2002) p. 851-869

Abstract:
In this article, the author discusses the shifting nature of work with a specific focus on the emergence of home work and the challenges that confront the law as it deals with the changing relationships in the world of work. Part I discusses the Fordist model of work organization (full-time, on employer’s premises), how this model is being replaced by a growing informal economy of part-time, flex-time, contingent, and home workers, and the ILO’s attempts to create standards to govern these new work arrangements. Part II discusses the challenges of crafting labor standards relating to home work, explaining that the ILO’s approach has been to provide comparable benefits to those who are engaged in such work, without mandating that all home workers are employees for the purposes of labor law. Lastly, the author argues that in the context of growing numbers of persons who are earning their livelihood outside formal employment relationships, there is a need to unlink the benefits that are provided to such workers from employment contracts. Although labor standards must continue to evolve to advance the status of participants in the informal economy, the author optimistically concludes that labor standards relating to home work indicate the breaking of new ground in the scope of labor laws and have great significance for the millions engaged in the informal economy.

Subjects: Contingent Work, International Labour Organization (ILO), Women’s Rights
Newsletter: Vol 3, Issue 8
 
Shimada, Yoichi, "Working Hour Schemes for White-Collar Employees in Japan", Japan Labor Review v. 1 no4 (Fall 2004) p. 48-67

Abstract:
This article argues that the current regulations in place concerning “working hours” (hours that an employee is paid wages for) is not appropriate for Japan’s white-collar workers. White-collar workers , unlike most other employees in Japan, have varying levels of discretion over how they do their work as well as the amount of work they perform. The article starts with a description of the general working conditions of white-collar workers, which often includes excessively long working hours, unpaid overtime, and no paid holidays. Section 2 discusses how previous regulations on working hours were applied to white-collar workers and the two current working-hour schemes that were set up in recognition of the unique nature of white-collar workers. The “flex-time” scheme doesn’t fix rigid starting and ending times for the working day, but does mandate a certain number of hours be worked within a certain period (e.g. one month). The “discretionary work” scheme lets the individual worker calculate his/her own working hours, but is riddled with cumbersome legal procedures. Section 3 explores in depth how the discretionary nature of white-collar workers warrants a working hour scheme that’s different from other employees, and suggests that the “flex-time” and “discretionary work” schemes can be improved by incorporating evaluation systems and health requirements. Section 4 raises issues that should be discussed in considering new working hour regulations for future white-collar workers, including how to determine an appropriate workload, and an annual paid holiday scheme.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan, Working Hours
Newsletter: Vol 4, Issue 5
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Stone, Katherine V.W., "Flexibilization, Globalization, and Privitization: Three Challenges to Labor Rights in Our Time", Osgoode Hall Law Journal v. 44 no77 (2006) p. 77-104

Abstract:
Three dynamics are coalescing to reshape labor relations in the 21st century in the United States: They are flexibilization, globalization and privatization. Flexibilization refers to the changing work practices by which firms no longer use internal labor markets or implicitly promise employees lifetime job security, but rather seek flexible employment relations that permit them to increase or diminish their workforce, and reassign and redeploy employees with ease. Globalization refers to the increase in cross-border transactions in the production and marketing of goods and services that facilitates firm relocation to low labor cost countries. And privatization refers to the rise of neo-liberal ideology, the attack on big government and the dismantling of the social safety net that have dominated public policy in the U.S. in recent years. All three of these dynamics have been detrimental to U.S. employment standards and union strength. This paper describes how each of these dynamics has undermined labor rights and then asks, what prospects are there, in light of this environment, for protecting employment rights, re-invigorating unions, and security a social safety net? It concludes that the response to the global threat to labor standards lies in a revival of collective action at the local level. It further concludes that the combined forces of flexibilization, globalization, and privitization make collective action at the local level not only necessary, but also possible.

Subjects: Contingent Work, Flexibilization, Labor Rights in General (Misc.), Privatization
Newsletter: Vol 5, Issue 11
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Sur, Melda, "The Fundaments and Limits of Managerial Prerogative in Turkish Labor Law", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 313-333

Abstract:
This article describes recent changes in managerial prerogatives under Turkish labor law. In 2003, Turkey enacted a Labour Code that increased protections for workers in certain precarious employment arrangements, improved workplace health and safety standards, and required notification of union representatives before collective dismissals can take place. The 2003 Code also required employers to obtain consent of employees for substantial modifications of working conditions, and strengthened the protection of employees during the transfer of an enterprise. Despite increasing worker protections, however, the 2003 Labour Code also increased managerial prerogative in the area of working hours. Previously, the law required that working hours be distributed equally throughout the day and week, and that overtime be paid for work in excess of the daily maximum. After 2003, employers can now, with the consent of their employees, vary the daily hours. Further, overtime pay will only be awarded for hours in excess of a 45 hour week averaged over 2 months. In recent years, the decreasing density of unions has also strengthened managerial prerogative.

Subjects: Case Studies: Country-Specific, Contingent Work, Health and Safety, Overtime Rules
Newsletter: Vol 9, Issue 3
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Tsikata, Dzodzi , "Toward a Decent Work Regime for Informal Employment in Ghana: Some Preliminary Considerations", Comparative Labor Law & Policy Journal v. 32 (Winter 2011) p. 311

Abstract:
The author outlines the labor regime in Ghana, focusing on the informal labor markets where the majority of Ghanan laborers work. Neoliberal policies, such as the Draft National Employment Policy, the Labour Act, and the Social Security Act, protect entrepreneurship at the expense of workers by making labor crimes difficult to prosecute and limiting the ability of unions to organize. Though the Social Security Act allows informal workers to voluntarily contribute to the scheme so that they may later receive payments, the wage of Ghanans in informal work arrangements is so low that the program is seldom utilized. The author describes in detail the informal labor markets that exist in the fishing, mining, and domestic service industries, and argues that Ghanan policy makers must break from their neoliberal approach and legitimize such work by broadening the legal definition of employment and enforcing a universal minimum wage.

Subjects: Case Studies: Country-Specific, Contingent Work, Flexibilization
Newsletter: Vol 13, Issue 3
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Tsuchida, Michio, "Career Formation and Balanced Treatment of Part-time Workers: An Examination Focusing on Legal Policy", Japan Labor Review v. 1 no4 (Fall 2004) p. 27-47

Abstract:
This article explores the legal policies affecting part-time workers, and what the Japanese government must do to tackle the problem of the disparate treatment between part-time workers and regular employees. The article starts with an overview of the concept of career formation and its relationship to part-time workers. The author argues that the continuously increasing number of part-time workers necessitates that career formation policies be strengthened to acknowledge that part-timers are an indispensable human resource for companies. The next section describes the different categories of part-time workers, such as “fulltime part-time ” -- i.e. workers who are treated as part-time, but work as many hours as regular employees and “core part-time” -- part-time workers engaged in duties that are nearly identical to regular employees. The fourth and fifth sections examine legal regulations affecting part-time workers. The author discusses the vast, unequal treatment in relation to wages, working conditions, and dismissals that part-time workers receive compared to regular employees . The article concludes with an analysis of the revisions the Japanese government made in 2003 to their legal regulations affecting part-time workers. The author agrees with the “idea of balance” that the revisions are based on, which is the principle that measures encouraging part-time workers to become regular employees must be balanced with measures making part-time work a desirable employment opportunity. However, the author points out that there is still much room for improvement, such as creating an “in-between” employee category to create a transition from part-time worker to regular employee, and changing the social insurance system so that it treats all working styles fairly.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan
Newsletter: Vol 4, Issue 5
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Visser, Jelle, "More Holes in the Bucket: Twenty Years of European Integration and Organized Labor", Comparative Labor Law & Policy Journal v. 26 (Summer 2005) p. 477-521

Abstract:
This article seeks to answer the question of whether the role of intermediaries such as labor unions will be diminished or eliminated as the European Union continues to adapt to a globalized economy. The first section examines how changes in the labor market (e.g., decentralization of the workplace, heterogeneity of society), and diversification of employment statuses (e.g., temporary, short-term) have led to a new focus on choice by the individual worker and the firm, as opposed to equality in forming labor regulation. The second section explores the current status of labor unions by looking at their density (proportion of members), presence (proportion of workplaces where unions present), coverage (proportion of workplaces whose terms of employment influenced by collective bargaining agreements), and representation (recognition and presence). The author finds that although there has been a general decrease in density and presence, coverage and representation have remained stable. He argues that this shows that there is government as well as public support of unionism. The third section looks at how international competition has led Europe to customize labor regulations by allowing Member States, firms, and individuals to opt-out of common minimum standards. The author queries why international coordination between labor unions is not an adequate method of countering this trend. He concludes that the opt-out option is based on a new partnership approach that leaves labor unions out of the equation, to the detriment of all parties involved. The last section analyzes the limits of the current practice of 'voluntary' agreements and guidelines based on public recommendations and a consensus on 'best practice,' and questions whether these non-binding methods have any effect at all. The article concludes that labor union in the EU have been weakened as labor regulation has become less collective as well as less ambitious.

Subjects: Collective Bargaining, Contingent Work, European Union, Extraterritorial Application of Law, Labor Mobility, Labor Rights in General (Misc.)
Newsletter: Vol 5, Issue 5
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Xu, Feng, "Labor Law Developments in China: The Emergence of Temporary Staffing Agencies in China", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 431-461

Abstract:
Xu’s article discusses the rise of the temporary staffing, or “labor dispatch,” industry in recent decades in China. Xu argues that these agencies are part and parcel of the government’s efforts to create a flexible labor market, to dismantle the “iron rice bowl” of lifelong employment in cities and to address the ensuing unemployment of urban dwellers and rural migrants, while also stimulating foreign direct investment. The labor dispatch agencies are owned and operated by a combination of local companies, transnational staffing companies, and state-owned enterprises. The 2007 Labor Contract Law regulated labor dispatch companies for the first time, thereby legitimating the industry and cementing the “triangular employment relationship” between the agencies, firms, and workers. This relationship has given firms the ability to evade the formation of contracts with workers, thereby increasing job insecurity, undermining wages and conditions, and generating more informal employment.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Corporate Accountability, Labor Mobility
Newsletter: Vol 9, Issue 4
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Yamashita, Mitsuru , "Japanese Labor-management Relations in an Era of Diversification of Employment Types: Diversifying Workers and the Role of Labor Unions", Japan Labor Review v. 2 no1 (Winter 2005) p. 105-117

Abstract:
This article examines several studies about Japanese labor unions in an effort to better understand how the increase of non-regular work and workers in Japan is connected to the declining rate of unionization. The author starts with a review of two trends: (1) the widening wage gap between regular and non-regular employees in all categories of work, and (2) the declining proportion of workers joining labor unions (from 55.8% in 1929 to below 20% in 2003). The next section explores different factors that may explain why the rate of progress in unionizing non-regular employees is so slow compared to their growth in the workplace. These factors include the labor unions’ resistance in adapting to a changing workplace as well as a new trend among employers of avoiding unionization. The author then focuses on the unique challenge that organizing part-time workers brings. He suggests that the efforts of labor unions to secure benefits for part time workers that are similar to the ones regular workers receive are leading companies to increase their use of outsourcing and external contractors. The article concludes with proposals for future studies to clarify the dynamics of the labor-management relationship in Japan’s current era of employment diversification.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan
Newsletter: Vol 4, Issue 6
 
Yasseri, Sanam, "Out of the Shadows: A Call to End the Exploitation of Non-Agricultural Migrant Workers by Reforming the U.S. H-2B Guest Worker Program", Southwestern Journal of Law and Trade in the Americas v. 15 no1 (2009) p. 361-382

Abstract:
The article begins by summarizing past and present guest worker programs, beginning with the Bracero Program, which facilitated employment of Mexican workers in U.S. farms during the middle of the twentieth century. The author then discusses current guest worker visas, including the H1-B for skilled workers, the H-2A for agricultural workers, and the H-2B for low-skilled, non-agricultural workers. The article critiques the H-2B program, which applies to landscapers, forestry workers, housekeepers, construction workers and others, on the ground that it fosters high levels of worker debt to unscrupulous recruitment agencies, makes it impossible for workers to change employers, and has inadequate government oversight. The author then proposes a long-term solution based on a Canadian program, in which increased involvement by both the sending and receiving country would replace exploitative recruiters with more accountable government agencies. In the short term, however, the author sees unionization of guest workers as the most likely way to enforce those workers’ rights.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration
Newsletter: Vol 9, Issue 9
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Zaletel, Petra, "Competing for the Highly Skilled Migrants: Implications for the EU Common Approach on Temporary Economic Migration", European Law Journal v. 12 no5 (September 2006) p. 613-635

Abstract:
This article compares efforts of the European Union and the United States to attract highly skilled workers in the "knowledge economy." The author seeks to contribute to policy design in the EU, where there is a growing need for the highly skilled but so far only Germany and the UK have programs to attract them. The article discusses economic accounts of the importance of highly skilled labor and surveys of global migration of the highly skilled. The author argues that the EU needs a common policy to make the entire region attractive to highly skilled workers in order to increase its competitiveness in the global economy. She concludes that the best legislative strategies involve programs that facilitate a speedy transition to permanent residence, family unification and provide general flexibility.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 6, Issue 9