T2-10: New forms of regulation

Private voluntary regulation by employer forums

Philippe Demougin, Cardiff University

Voluntarism is a distinctive trait of British employment relations. During the post-World War II decades, the traditional or ‘old voluntarism’ was at its height which referred to the voluntary regulation of employment relations by employers and labour unions without state interference through direct legal sanctioning or labour law regulation. This paper argues that a ‘new voluntarism’ has emerged in the United Kingdom (UK). This is the private voluntary regulation through so-called: ‘employer forums’. Employer forums are collective employer bodies that began to emerge during the 1980s and which primarily focus on improving social and labour standards of different groups of employees in the workplace. One example is Business in the Community (BITC) which is concerned with corporate social responsibility (CSR) and responsible business. It aims to positively shape and influence the impact of British businesses on the environment, society, the marketplace, the community and the workplace. Employer forums engage in private voluntary regulation through certification, benchmarking, awards, training, consultancy and social codes of conduct, which assist employers in implementing legal requirements but regularly exceeds them. We argue that these collectivist bodies represent a new form of voluntarism which functions differently from the old form, but nonetheless connects in significant ways to the broader voluntarist tradition in UK employment relations. While traditional collective bargaining continues to exist, albeit in a much diminished form (Brown et. al, 2009), we argue that the new voluntarism by employer forums is an additional institutional ‘layer’ (Streeck and Thelen, 2005), which adds in a distinctive way to the tapestry of private and public labour regulation in the UK. Both forms, the newer and older, connect to the voluntary tradition in employment relation that can be observed in the UK, however are less common in other countries. In this article we review the literature on the older voluntarism through the lens of four key analytical dimensions, namely: origins, elements and characteristics, role of the state and scope. We then establish and substantiate the new private voluntary regulation through an examination of eight employer forums based on multi-method qualitative research. Our four analytical dimensions are then used to compare and contrast the old and new forms of voluntarism, and to establish what is distinctive and significant about the private voluntary regulation by employer forums.

Csilla Kollonay Lehoczky, Central European University

The impact of the growing globalization and the multiplication of the forms of engaging labour have gradually undermined and eroded the traditional forms of protection of the weaker party in labour relations. Coupled with the difficulties of finding undisputed definitions for the boundaries of protected labour, there are arguments that the digitalization questions the relationship between the two sides of an employment relationship, arguing in favour of the increased power of the worker and the increased vulnerability of the institutional employer. The diversified institutional and regulatory reactions and standard-setting is examined at European regional (in some cases at sub-regional level). The paper will address the issue of “soft” law instruments, predominantly of collective nature, arguing in favour of advancing such forms of normative instruments considered “juridical” compromise (frequently qualified by the legal society as “non-law”, just “political documents”). It will be argued that they may offer solutions for escaping the destructive impact of deregulatory tendencies and preserving former standards. The “combat deregulation by soft law” proposal will be supported by positive examples primarily from European (Council of Europe) examples, eventually supplemented by other regional examples. Not in the last rank the available advantages and possible results of “progressive” and “collective” methods of guaranteeing rights based on the case law of the (Revised) European Social Charter will be relied on. Its noticeable synergy with the European Charter of Fundamental Rights and the relatively recent document, the European Pillar of Social Rights contributing to the clarification of the legal power of the Charter of Fundamental Rights and to EU legislative and policy activities in evolving the content of the Pillar. The secondary role and controversial nature of social rights (including employment and labour rights) in EU law necessitates the examination of using “bypass” methods for achieving positive integration in the social areas. The available power of soft law needs manifold examination, the solutions to develop may rely on the utilization of earlier experiences – pitfalls and results – of the Open Method of Coordination (OMC), including the participatory role of various stake-holders.

An example from the Netherlands

Herman H. Voogsgeerd, University of Groningen

» Full paper: ilera-2019-paper-243-Voogsgeerd.pdf

In the enforcement stage of collective labour agreements in the Netherlands we see an increasing influence of private actors. In 2005 the social partners in the sector of manpower agencies established the SNCU, a foundation to enforce the collective agreement in the sector (Stichting Naleving CAO voor Uitzendkrachten). This 'collective labour agreement police' as it is called in everyday language can issue sanctions up to 100.000 euro, even with retroactive force. Because the collective agreement has been declared universally applicable the rules of the foundaiton are to be found in the Dutch Staatscourant (2009, nr. 116 of 26 June 2009). The SNCU has two main purposes: to give information about the standards derived from the collective labour agreement and the promotion and overseeing of the enforcement of this agreement. This 'collective labour agreement police' has been effective and the example has been followed in other sectors in the Netherlands as well. Mala fide manpower agencies ended up in a stat of insolvency or decided to stop their activities after successful actions by the SNCU.

In this paper this experience with 'private enforcement' in the Netherlands for more than 10 years will be evaluated. Courts in the Netherlands have accepted and supported the arguments of the SNCU during legal proceedings. is this private enforcement also effective in cross-border cases within the EU? Is it a good alternative for public enforcment or are public-private mixes to be preferred?