T2-13: Shaping good work

A sequence analysis of regulation patterns over four decades

Jean-Yves Gerlitz, University of Bremen

Labour law intends to regulate the fictitious commodity labour and establish workers’ rights. The construct ‘standard employment relationship’ (SER) combines norms that provide employment continuity, social protection and collective rights, predominantly in relation with a full-time contract provided by a large employer. This indicates ‘normative segmentation’, i.e., the conditionality of legal protection on the employment relation, worker’s characteristics or the workplace, such as seniority, minimum working hours, pay or company size. Although SER regulation and implementation varies significantly around the world, it is regarded as an ideal legal type connected to high profile protection. With the rise of the neo-liberal paradigm in the 1980s employers and their representatives demanded a flexibilisation of labour regulation to guarantee economic efficiency and employment growth. Consequently, SER’s social protection was reduced and restrictions of non-standard employment relationships (NSER) were lowered. In Europe, effects of deregulation have already led to feedback reforms to establish equal treatment of NSER.

This paper analysis, how different patterns of labour regulation have evolved in Europe and other regions of the world (Northern America and Oceania, Latin America and the Caribbean, Africa, and Asia), indicating the trajectories of regulative change. Drawing on trend data of the Cambridge Labour Regulation Index (CBR-LRI) and looking at 86 countries, we combine four dimensions of SER (dismissal protection and working time limitation) and NSER (restriction and equal treatment of NSER) regulation to distinguish different regulation patterns. We see that the singular regulative pattern of rather low protection for both the SER and NSER in 1970 diversified until 2010. In a first step, we categorise each country each year according to its SER and NSER regulation as a highly regulated, lowly regulated or moderately regulated country. In a second step, we perform sequence analysis to identify and map patterns of regulative change over four decades. In a third step, we explain observed trajectories by looking at various macro-economic indicators, welfare state characteristics and membership in transnational organisations, respectively their key policies.

The study helps to understand how national labour law has developed in Europe and other regions of the world, focusing both on its protective and segmenting function. Furthermore, it shows how regulation patterns were influenced by economic conditions, domestic institutions, and policies of transnational actors.

Dynamics and tensions in labour law, non-discrimination law and collective bargaining

Mia Rönnmar, Lund University, Faculty of Law

An ageing population is a major trend in the EU as well as in many developed economies due to declining birth rates and rising life expectancy. This has important implications for economic performance, intergenerational solidarity, social cohesion and the sustainability of pension and healthcare systems. 2012 was the European Year of Active Ageing and Solidarity between Generations, and the EU Active Ageing Policy aims to promote a healthy and active ageing population, increase the labour market participation of older workers (55+) and prolong working life.

An ageing workforce poses challenges for labour law, employment relations and social partners and collective bargaining – and for employment protection. The aim of this paper is to analyse the function, content and future challenges of employment protection, and its interplay with non-discrimination law, from the perspective of older workers and a prolonged working life. The Swedish labour law and employment relations system and EU law are in focus, and the analysis covers statutory, collective bargaining and case law developments.

The Swedish labour law and employment relations system is based largely on self-regulation through autonomous collective bargaining. Wages and employment conditions are mainly set by collective agreements. The understanding and regulation of employment protection change over time and between jurisdictions, and the precise content of the employment protection regulation – including the level of protection it offers – is often debated. This is the case in Sweden at present, where employment protection, and especially redundancy and seniority rules, are at the centre of the political debate. A tension is growing between collective bargaining and ‘legislative intervention’.

The vulnerability of older workers – due, for example, to ageism and possibly out-of-date competence and training but also to weakened performance – has influenced the content of employment protection in many EU Member States, and special protection for older workers has been afforded. In Sweden, a concern for older and sick employees has formed a basis for the statutory employment protection regulation from the beginning. As a rule, sickness or old age does not constitute just cause for dismissal. The employer is obliged to conduct a thorough investigation into the possibilities for adaptation and rehabilitation and finding alternative work for the employee. Employment protection, and especially seniority rules, are seen by some as affording necessary protection for older workers, while others view them as barriers for the entry of younger workers into the labour market. Age has traditionally been influential in the organisation of labour markets and labour law regulation. The ban on age discrimination (in both EU law and Swedish law) and employment protection intersect when it comes to, for example, fixed-term employment contracts for older workers, seniority rules in redundancy situations and compulsory retirement.

This paper provides an analysis of a number of key aspects, such as:

• redundancy dismissals and seniority rules,
• protection against dismissal on grounds of old age, sickness and disability,
• compulsory retirement and fixed-term employment for older workers, and
• the interplay between employment protection and non-discrimination law, including age discrimination, disability discrimination, gender discrimination and multiple discrimination.

Thus, this paper entails a topical analysis of employment protection, non-discrimination law, elder law and collective bargaining at Swedish and EU level, and integrates employment relations perspectives. This research is carried out within the Norma Elder Law Research Environment (http://www.law.lu.se/#!elderlaw).

Using the example of working time accounts

Jens Thoemmes, CERTOP-CNRS Toulouse
Hartmut Seifert, formerly Institute of Economic and Social Research (WSI), Hans-Böckler-Foundation

The proposed contribution compares company agreements on working time accounts (WTA) in France and Germany. Empirical basis are about 600 agreements in both countries. In the foreground is the question to what extent the regulations provide clues for the time autonomy of the employees and what differences can be made between the two countries. The analyzes show that the promotion of time autonomy of employees plays a significant role in the company agreements for WTA. Time autonomy is necessarily understood only as a relative category because it is embedded in an operational environment characterized by social and economic constraints.

Relative autonomy of time is also mentioned, because the vast majority of regulations provide that WTA promote both time autonomy and meet market requirements and should take into account operational issues. In this respect, the agreements do not clearly favor certain objectives, but provide a relatively large scope for action, which must be completed according to the operational conditions.

Notwithstanding these general similarities, the French agreements differ from the German ones in central points. They offer very different scope for time autonomy in both countries. In Germany, the WTA are mostly short-term accounts, which as a rule apply automatically to all employees or defined groups of employees and do not have to be applied for individually. With time credits, debts and compensation periods, they contain temporal core elements that are usually precisely defined. WTA can be considered as regulated flexibility. On the one hand, they serve business flexibility interests by making it easier to adapt the workforce to a volatile workload with WTA. On the other hand, they are embedded in a well-defined rules system with the (collectively agreed) weekly working time as its non-flexible core, which ensures the functioning of WTA. In addition, they provide the employees with scope for a relatively autonomous and thus also based on their own interests variation of working hours.

In France, WTA are basically individual accounts that require the employees' consent (opening, closing, portability). Similarly, the "French WTA" are most likely to be associated with "German long-term accounts". WTA are also used explicitly in France to extend working hours. The conversion of time into money is also widespread, so that it can be asked whether time autonomy is subordinate to a desired or required increase in income or is even identical with it. Overall, the WTA in France is more of a medium and long-term savings contract, which does not allow any time debts.

In a second step we try to explain the differences in the regulatory structures of WTA found in the comparative document analysis. It can be shown that the differences have to do with the genesis of WTA and ist specific industrial relations.

With regard to France, WTA were created by a legislative initiative. In fact, the 1994 Law described the possibility for an employee to take at least six months leave after a period of saving working time. The aim of the law was to guarantee employees a long vacation, but to replace the same employee with an additional one. The objective of "employment through holidays" in the mid-1990s was part of a context in which the issue of employment was already a serious problem and the reduction of working time had disappeared from the agenda. Unlike France, the WTA was created in Germany in companies, including its formalization. Negotiations on the reduction of working hours in the metal industry in the mid-eighties had actually led to accounts, with the aim of coping with the time difference resulting from the reduction of working time. Combined with flextime, which became widespread in the 1970s, and also led to a calculation of the hours to be transferred to another period, the WTA became an instrument for controlling the individual variability of working time. The main objective was to consider the productive organization of the effects of reducing working time and shifting working time from one period to another.

In France, the legislator also plays a more active role in the negotiations on working time: he has created the WTA law, he has begun to shorten the working time to 35 hours. On the other hand, the legislative initiative for decades has been primarily concerned with promoting business negotiations. It is therefore not surprising that the legislature made the introduction of WTA in 1994 subject to the existence of a corresponding works agreement.

In Germany, works councils are conducting intensive negotiations on the introduc-tion of WTA on the basis of industry collective agreements. Industry-specific agree-ments limit compensation periods and volumes for WTA. However, these particular regulatory frameworks in both countries point to a social logic and generic contra-dictions that we can find in the quantitative analysis of our agreements: the contrast between law, collective agreement and BV, the contrast between long-term and short-term, the separation / unification of time and money, the representation of indi-vidual and collective interests, the question of debts and the limits of saving, the issue of unemployment and employment, the reduction and extension of working time. According to the provisions of the WTA, the structuring of companies and, sub-sequently, of companies is based on opposites that respond to different situations in the two countries. Collective action remains the driving force behind negotiations and agreements.