Track 2: Regulation of Labour: Actors, Institutions and Law

Montserrat Sole Truyols, University of Girona

» Full paper: ilera-2019-paper-141-Sole Truyols.pdf

Spanish industrial relations are marked by under organized unions and a high level of state presence through regulation. In this context, the governments in office – regardless of their ideology – engaged since 2010 in continuous urgency legislation reforms to reduce lay-offs costs and decentralize collective bargaining by setting the prevalence of company level agreements. In 2012 a new urgency legislation was passed which allows employers to opt-out of collective agreements, to modify unilaterally individual working conditions and, to proceed with collective dismissals. All of this on the sole justification that the measure serves to improve business’ results. There is no need for the company to be in economic or market difficulties.

The preamble of the 2012 act (Law 3/2012 of 6th. july, on urgent measures for the reform of the labour market) admits that extending the causes for dismissals or modification of working conditions is necessary in order to avoid uncertainty in employers’ decisions. For that reason, so the law goes on, the judges might only take into account whether the causes exist or not and should refrain to adjudicate considering the proportionality, reasonableness or adequacy of the measure adopted by the employer. Such a limitation of the judicial decision based on competitiveness or economic performance of the company collides with national procedural law on labour matters which establishes the reasoned judgement on the appraisal of the evidences as the legal safeguards for a fair trial. Furthermore, this point of the reform falls outside the constitutional legitimate purposes and creates a problematic situation with regards to the right to an effective legal remedy, protected as a fundamental right in the Spanish Constitution (SC).

This limitation of the judiciary to determine whether just cause exists, was brought to the Constitutional Court for its legality assessment. However, the Court found that the right to legal protection was not violated because the worker is not being prevented to access the justice. The dissenting vote of one of the judges, however, points out that the real problem is whether the trial is fair, and fairness can only be assessed through a motivated resolution. The new law removes motivation; therefore, this provision should have been repealed.

Within the foregoing framework, lower courts in Spain play a minor role as far as industrial relations are concerned. Furthermore, the fact that it is legislation what commands and governs such relations, the Constitutional Court has become the most relevant actor in building the context in which industrial relations in Spain develop. This paper explores the legality concerns brought to the upper court on occasion of the labour reform and the reasoning of the rulings.

Two relevant cases for the purposes of this paper were raised about the constitutional flaws of the 2012 labour reform. The first one challenged two elements of the reform: the employers opt-out of the working conditions collective agreed and the decentralization of the collective bargaining through the legal prevalence of the company agreement, in that both impaired the right to collective bargaining and the right to unionization.

The findings of the Court to dismiss the appeal were grounded on the economic situation of the country and the need to allow the necessary flexibility to the companies to redress their organizational and economic concerns “as it is done in several European countries through the attribution to collective agreements of limited personal applicability” . To this purpose the legislature, in the Court’s opinion, has the power to restrict the scope for collective autonomy if the aim is to secure business competitiveness or if the legislative aim is “to impede that the collective autonomy might frustrate the legitimate objective of creating stable employment” . With that in mind, so the Court’s argument continues, the constitutional protection recognized to labour rights in the past has to yield in the current economic context in favour of the right to freedom of enterprise also constitutionally enshrined in Art. 38 SC . Therefore, the Court inverts its previous jurisprudence on the structure of rights under the SC. The Court had in the past systematically ruled that the right to unionization is a fundamental right while the freedom of enterprise was not fundamental.

Similar arguments have been used in the second relevant case the Court had to deal with. In this occasion the appeal focussed on the change of the legal status of the rights to collective bargaining and unionization. Claimants held that the decentralization of collective bargaining and the possibility of the employers to unilaterally change the working conditions devoid of substance such rights . The Court’s reasoning is based in its previous decision but insists in safeguarding the purpose of the reform as expressed in the preamble of the Act. This is, the economic situation of the country and the need to facilitate employers’ chances to labour flexibility . The judges believe that the legal reform is proportionate and reasonable to the aim pursued by the legislature which is to avoid job destruction. In this ruling, published in 2015 three years after the legal reform was enacted, the Court seems to be unaware that in the year of the reform and subsequent the unemployment rate raised 2% each year.

All in all, the Spanish Court’s rulings have reintroduced into the legal system the managerial prerogatives balanced to economic outcomes, resulting in the transformation of the constitutional protection from persons to economic interests. To a certain degree, these decisions bear a high resemblance to the CJEU’s rulings in Viking and Laval cases in that economic freedoms take a relevant role vis-à-vis of fundamental rights. In terms of methodology it can be argued, however, that the interpretation given in Spain goes even further than that of the CJEU’s since there is no a proper balance among the rights at stake . Whether the Spanish Court has been influenced by the CJEU might be debatable, but it should not be overlooked given the EU’s economic framework influence on the Spanish decision-making process and the conditions of the bailout of the Spanish banking system.

The case of Czechia and Slovakia

Marta Kahancová, Central European Labour Studies Institute (CELSI)
Monika Martišková, Central European Labour Studies Institute (CELSI)
Mária Sedláková, Central European Labour Studies Institute (CELSI)

Recent evidence from Czechia and Slovakia, but also other CEE countries, demonstrates that trade unions, with support of, or even joint effort with employers, increasingly prefer legislative solutions to improve working conditions. Through legislation, social partners have managed to introduce significant improvements, i.e. in relation to precarious forms of work including temporary contracts and agency work.

In this paper we examine why legislative solutions are gaining ground in CEE countries that have established traditions of collective bargaining and with fair levels of unionization. In other words, we raise a question why do unions (and employers) increasingly reach out for legislative solutions even if they have other channels of influence at their disposal, including collective bargaining.

In addition, we question the effects of such legislative solutions on (a) the quality of working conditions; (b) on the organizational stability, membership and reputation of trade unions; and (c) on the established industrial relations structures. In particular, we examine to what extent such legislative solutions have weakened or strengthened collective bargaining. The question we aim to answer is whether legislative solutions are crowding out the institution of collective bargaining, or whether they have the opposite effect: does a more detailed regulation generally increase the benchmark for bargaining outcomes and thereby facilitates more ambitious goals for future bargaining rounds?

To examine these questions, we draw on an analytical framework on innovative trade union practices elaborated in the introductory paper. Unions’ legislative efforts are framed as innovative, because only in the last 5-8 years unions openly push for legislative solutions while previously they attempted to concentrate their capacities both on bargaining and political lobbying. At the same time, in the past 5-8 years unions succeeded in significant improvements related to agency work, especially in Slovakia, through legislative efforts.

We address the above questions by examining temporary agency work (TAW) and healthcare – two sectors that witnessed substantial regulatory changes in the past five years both in Czechia and Slovakia. Evidence from other CEE countries is incorporated to underline the main argument.

The TAW sector in Czechia and Slovakia, previously unorganized, saw an important change, first, in trade unions’ willingness to represent agency workers even without direct impact on membership growth; and second, in employers’ willingness to regulate the highly liberal market of temporary agencies and working conditions of agency workers. In result, unions launched cooperation with employers and laid the foundations of sectoral bargaining. However, later these efforts vanished as both parties successfully sought legislative influence. A supporting political environment helped to facilitate this goal, where unions benefitted from sufficient political support. It is questionable whether the same goals would have been reached in more hostile conditions, e.g., with a government less supportive of trade unions.

In contrast, healthcare is a well-organized sector in both Czechia and Slovakia and has benefitted from established bargaining structures at company (both countries) and sector level (Slovakia). The dissatisfaction of some occupational groups, most notably doctors and nurses, with lengthy collective bargaining, often involving dispute settlement bodies, motivated them to push for legislative solutions on wage regulations. This brought a quick success in legislatively anchored wage rises for doctors in Slovakia. In both countries, doctors’ trade unions succeeded with their campaign for better working conditions without relying on the established bargaining channels. The success of doctors’ unions was followed by nurses’ union in Slovakia, but nurses were not as powerful and their legislative effort of wage regulation was successful only until the Constitutional court yielded the legislation unconstitutional. Recently all healthcare unions fought for a legal regulation of wages of all healthcare workers. While the nurses’ unions are not fully satisfied with the outcome, in general all unions favour the legislative solution to lengthy collective bargaining over wages.

The paper will elaborate the argument that legislative solutions are gaining ground because the costs of bargaining are increasing while trust in compliance is decreasing. In other words, unions find bargaining lengthy and increasingly difficult and are afraid of lack of compliance by employers. In addition, unions (and employers, too) are convinced that ‘only legislative stipulations are powerful enough to yield an improvement in working conditions. Law enforcement is higher than enforcement of collective agreements.

What are the implications of these findings for the institution of collective bargaining? While in the case of TAW, we find that legislative solutions are complementary to collective bargaining, evidence from healthcare suggests that legislative solutions are crowding out the long-established bargaining institutions and leave a significant part of healthcare workers without bargaining coverage.

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?

A path of coordination or fragmentation?

Kristin Alsos, Fafo Institute for Labour and Social Research, Oslo
Kristine Nergaard, Fafo Institute for Labour and Social Research, Oslo
Johannes Oldervoll, Fafo Institute for Labour and Social Research, Oslo

In a coordinated market economy as the Norwegian, where an institutionalized system of coordination plays an important role (Hall and Soskice, 2001), strong partners on both sides of industry is an essential element. A comprehensive insight into the importance of employer organizations in the development of Nordic welfare and labour market models through a book edited by Carsten Strøby Jensen in 2000 (Jensen (ed.), 2000). Since then, research in this area has been scarce, especially in a Norwegian setting. While the adaption of new structure and functions in Danish employer organization has been documented by Ibsen (2016) and Ibsen and Navrbjerg (2018), the development of Norwegian employer organizations since 2000 has not been addressed by researchers.

Since the 2000s, Norwegian employer organizations has been characterized by mergers, but also with increased competition. In contrast to the more clarified positions between Danish and Swedish employer organizations (Nergaard et al 2016), Norwegian organizations in the private sector have the last couple of decades increasingly aimed for the same kind of members, leading to fierce competition in some industries. In the same period the share of companies that are members of an employer organization has grown, but many of them are not bound by collective agreements. Strengthening of employer organizations through representativeness does not necessarily equal a strengthening of other collective institutions such as bargaining coverage.

In this paper we aim to look into the development of Norwegian employer organization since year 2000, and whether we find a picture of stability or institutional change. Do we witness a trajectory of coordination or fragmentation? What are the consequences of increased competition between organizations when it comes to collective bargaining and employer policies?

The paper will be based on analyzes of literature and documents as well as qualitative interviews with employer organizations.

Company motives for participating in collective bargaining

Sandra Vogel, German Economic Institute (IW)
Hagen Lesch, German Economic Institute (IW)
Helena Schneider, German Economic Institute (IW)

Autonomous collective bargaining is a central feature of German industrial relations and of the social market economy. As the collective bargaining coverage has been decreasing over decades, the organising capability of German employer organisations and unions is called into question as well as their ability to regulate pay and working conditions for a majority of the workforce. Without a sufficient collective bargaining coverage, social partners cannot hope to regulate working conditions in Germany independently, but have to face stronger governmental interference. Though much research is devoted to union development, less is known on employer organisations and companies.

Against the background of a declining collective bargaining coverage and a lack in micro-level information on companies’ individual motives, the paper analyses companies’ reasons for participating in sector- or firm-level collective bargaining or refraining from such.  The paper uses data derived from a qualitative company survey conducted by the German Economic Institute (IW). The survey was run in autumn 2017 in the metal and electrical industry. With over four million employees, it is one of Germany’s biggest sectors that represents over 10 per cent of Germany’s total workforce and generates around 15 per cent of the national gross value added. Though the final sample only includes metal companies, the survey results nonetheless can be used for further cause analysis concerning the declining bargaining coverage.

In comparison to other available (panel) data sources, such as the IAB-Establishment Panel or the SOEP panel, the IW-survey was devoted to metal companies’ motives in regards to their collective bargaining participation. It also looks into companies’ satisfaction with a given arrangement (sector- or firm-level agreement or no agreement) and needed changes for more companies to join collective bargaining. The authors designed questionnaires fitting each of the three company groups. This approach allowed to ask for the different groups‘ views on the merits and disadvantages of the sectoral metal agreement applicable in autumn 2017. In order to reach as many metal companies as possible, metal employer organisations contacted their own company members (those bound by the sectoral agreement as well as those holding a membership without being bound by the sectoral agreement) and invited them to participate in an online-survey. In addition, a random sample of companies not bound by a metal agreement was selected from the Markus-database and computer assisted telephone interviews were conducted. The final sample consists of 1.533 companies from the sector.

The survey results show that the peace obligation and lower transactions costs are still important reasons for companies to participate in collective bargaining. Nonetheless, the results also point to areas of dissatisfaction. For example, surveyed metal companies bound by the sectoral agreement are dissatisfied with the height of collectively agreed earnings (especially for low-wage work), working time volume and flexibility. Companies not bound by the agreement also resist (sectoral) collective bargaining for these reasons. Whilst dissatisfaction with these arrangements might not immediately lead to exits from collective bargaining, they can nonetheless become virulent when other factors come into play, such as shrinking turnovers or external shocks.

Given these results, state interventions to strengthen the collective bargaining autonomy have to be assessed critically, as social partners have not yet exhausted all possibilities to stabilise the collective bargaining system from within. More appealing pay and working time clauses for companies could prove a fine starting point to redeem higher collective bargaining coverage and ensure the German collective bargaining autonomy.

The double embeddedness of creative work

Lisa Basten, Berlin Social Science Center (WZB)

In the search for fields in which the changing nature of economic work is exemplified, the creative industries are a common candidate. They are paradigmatic when discussing hybrid work (Manske, 2018)), the project society ( (Windeler & Sydow, 2001; Windeler & Wirth, 2004) and deregulation ( (Haak & Schmid, 2001; Schmid, 2000). On top, a “Creative Industries Turn“ (Menger, 2013) has led to internationally comparable data collections pointing to the enormous economic impact of the formerly disregarded sectors (Mercy & Beck-Domzalska, 2016; Söndermann, 2016). This prepared the ground for their status as a thriving, knowledge-based economy well prepared to meet the calls for innovation, digital change and creative entrepreneurship (Fritsch & Sorgner, 2013).

The puzzle driving my research is why, in a prosperous economic environment, has creative labor stayed precarious but attractive all the same? Why have individuals not been turning their back at this deregulated mess – and why have regulative measures been incapable of alignment? Why the stability?

This paper argues that the answer is to be found in the dual nature of creative work as wage providing labor and artistic expression. I will conceptualize creative work as embedded in two systems and their respective institutional arrangements, drawing from the concept of ‘institutional work’, most specifically Battilana’s “paradox of the embedded agency” (Battilana & D'Aunno, 2010).

Economic work, which includes any “activity undertaken for another party in exchange for compensation” (Cappelli & Keller, 2013) is embedded in a system of labor market institutions (North, 1991; Scott, 2014). On a normative level, informal labor market institutions have formed around different status groups, i.e. their highly legitimized ideal types: On the one end the standard employment relation (SER) with its implications for social and planning security, union representation and strong, often lifelong ties to a company (Dörre, 2011; Mückenberger, 1985). On the other end the idea of the standard entrepreneur (SEP), who acts financially independent, creates economic value and (standard) jobs and whose interests are represented by a professional association (Bührmann, 2012).

Labor market institutions are being challenged by a changing world of work, in which hybrid work relations and freelancing gain importance, in which companies fragment due to digitalized and globalized value chains and in which the values attached to economic work change. In Germany, the regulative institutions of the labor market system have proven very „resilient“ (Scott, 2014) despite the growing gap between their coverage and the reality of a growing number of workers. Creative work is economic labor and thus embedded in the system of labor market institutions. However, it is also embedded in a system of institutions pertaining to the significance ascribed to culture and art in post-war Germany, which I will refer to as the system of artistic significance. On a normative level, the institutionalized public interest of art and culture manifests in Germany in the spending of public money on cultural activities (12,4 billion in 2015) and public broadcasting (7,9 billion in 2016) and thus in economic work opportunities for millions. On a regulative level, a shared conviction that art is a significant part of society has led to changes in the institutions of the labor market system, resulting in adaptions within the social security system (the Künstlersozialversicherung KSK), stretching the competencies of wage regulation into intellectual property directives (‘fair remuneration’ in copyright laws) and expanding the realm of collective bargaining to ‘employee-like’ workers.

I will argue that three results can be drawn from the double embeddedness of creative work:

1. It facilitates agency/institutional work because actors (individual workers as well as collective organizations) need to adapt to “institutional incompatibilities” (Battilana & D'Aunno, 2010: 39) of two systems. Thus, institutional change is encouraged by the double embeddedness of creative work.
2. The hierarchical relation of the two systems in terms of resources and legitimacy contains the effects institutional work has in changing the risks of precarity. This is all the more relevant in times when the definition of which creative activity is labelled significant and thus institutionally ‘protected’ is stretched.
3. The double embeddedness enforces, stabilizes and legitimizes high risks of precarity for most and stardom for few as a legitimate distinction inherent in creative work.

The paper closes with a discussion of what could possibly be inferred from these results for collective, individual and political actors.

References

• Battilana, K., & D'Aunno, T. 2010. Institutional work and the paradox of embedded agency. In T. B. Lawrence (Ed.), Institutional work. Actors and agency in institutional studies of organizations: 31–58 (1st ed.). Cambridge: Cambridge Univ. Press.
• Bührmann, A. 2012. Unternehmertum jenseits des Normalunternehmertums: Für eine praxistheoretisch inspirierte Erforschung unternehmerischer Aktivitäten. Berliner Journal für Soziologie, 1(22): 129–156.
• Cappelli, P., & Keller 2013. Classifying Work in the New Economy. Academy of Management Review, 38(4): 575–596.
• Dörre, K. 2011. Funktionswandel der Gewerkschaften: Von der intermediären zur fraktalen Organisation. In T. Haipeter & K. Dörre (Eds.), Gewerkschaftliche Modernisierung: 267–301. Wiesbaden: VS Verlag für Sozialwissenschaften.
• Fritsch, M., & Sorgner, A. 2013. Entrepreneurship and Creative Professions. A Micro-Level Analysis. SOEPpapers on Multidisciplinary Panel Data Research, (538).
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Nana Wesley Hansen, Department of Sociology, University of Copenhagen

Labour conflict is costly for both employers and employees and often entails poor relations in the immediate aftermath (Lehr et al. 2014: 643). However, we know little about how labour conflict at sector level effects relations within political systems nor about how labour-management relations at workplace level are affected after mobilization.

This article uses longitudinal case study evidence from the public school sector in Denmark examining labour-management relations at sector, municipal and school level before and after a major sector level conflict over the issue of working time.

The conflict entailed massive mobilization of shop stewards and teachers within the schools and ended with a complete redistribution of power from labour to management concerning the regulation of teachers’ working time.

The evidence show that the conflict resulted in deteriorating relations among the bargaining parties at national and sector level for the years to come. With real effects on political sector relations. However, in spite of a highly strengthened management prerogative, school managers at local level continued to include the local union and shop stewards in the regulation of teachers’ working time even in cases when labour-management relations had been strained prior to the conflict.

The article discusses the potential of the classic unitarist, pluralist and radical frames of reference in Employment Relations (ER) to understand this outcome of conflict and change in power relations across regulative levels (Fox 1974, Tapia et al. 2015). The study find shortcomings in all approaches for understanding labour-management relations after conflict and suggest engaging with a renewed understanding of conflict in public sector IR and resilience in labour relations.

Literature:

• Biggs, M (2002) Strikes as sequences of interaction: the American strike wave of 1886. Social Science History 26 (3): 583–612.
• Dix, G, Forth, J, Sisson, K (2008) Conflict at Work: The Pattern of Disputes in Britain since 1980, NIESR Discussion Paper 316, National Institute of Economic and Social Research, London, UK.
• Fox A (1974) Beyond Contract: Work, Power and Trust Relations, London: Farber and Farber
• Lehr, A, Vyrastekova, J, Akkerman, A, Torenvlied, R (2015) Spillover and conflict in collective bargaining. evidence from a survey of Dutch union and firm negotiators. Work, Employment and Society 29 (4)
• Osnowitz D & Henson KD (2016) Leveraging Limits for Contract Professionals. Boundary Work and Control of Working Time. Work and Occupations 43 (3)
• Tapia M, Ibsen CL and Kochan T (2015) Mapping the frontier of theory in industrial relations: the contested role of worker representation. Socio-Economic Review 13(1), 157–184

Industrial relations in the videogame industry in Denmark, Italy and the Netherlands The role of private regulation and non-state actors in the enforcement of collective labour agreements. An example from the Netherlands

Lisa Dorigatti, University of Milan
Wike M. Been, University of Amsterdam
Luigi Burroni, University of Florence
Maarten Keune, University of Amsterdam
Trine P. Larsen, FAOS, University of Copenhagen
Mikkel Mailand, FAOS, University of Copenhagen

The literature on creative labour and its characteristics has been booming over the last two decades, starting from pioneering work in the late 1990s and early 2000s. These works widely acknowledged a number of common characteristics shared by creative labour in different creative industries and marked by the trait of ambiguity. The videogame industry was until recently largely overlooked by this literature, but recent contributions have started to explore this sector. Still, while the characteristics of work in videogame production have started being analyzed, much less work has been done concerning the role of industrial relations institutions and actors in shaping employment and representing the interests of the sector's workforce. IR in creative industries, project-based work helps explaining the lack of IR in creative industries.

This paper addresses this research gap by looking at interest representation in the videogame industry in three different national contexts, Denmark, Italy and the Netherlands. Based on more than 50 in-depth interviews with trade unionists, officials of business and employer associations and of professional organizations, and individual workers and managers within different kind of companies active in the industry, it explores the role of traditional industrial relations actors (trade unions and employer associations) and of new forms of interest representation in articulating the collective voice of different workers and companies in the videogame sector. In particular, we will highlight two key elements. First, traditional IR actors and traditional IR practices, such as collective bargaining, play a rather marginal role in representing workers and companies, and in regulating employment in the sector. Second, the dominant interest representation actors in the sector are business or professional organisations, and informal networks, which often cut across the employer-employee divide and represent the interest of the industry as a whole, focusing in particular on services and lobbying activities for its growth and success. Even if some differences are visible, this situation is present in all three analyzed countries, despite the strong variation in their IR models.

We argue that this situation can be largely explained by the characteristics of employment in the vide-ogame sector. In particular, the high mobility which characterize the industry, with people frequently moving across different employment statuses (employee, employer, self-employed), the strong im-portance of intrinsic motivations, and the differentiated degrees of vulnerability of different groups of workers in the industry, all contribute to distance the industry from the collective identities of tradi-tional social partners and to strengthen the appeals to occupational identities which accomunate the whole industries developed by professional and business organizations.

These findings contribute both to the industrial relations literature and the literature on creative labor. First, this paper provides new empirical material on employment relations and collective action in a new segment of the economy, highlighting the tensions and challenges traditional IR institutions face in changing economic environments. Second, our analysis corroborates recent calls for questioning the “methodological nationalism” of traditional comparative industrial relations literature, highlighting the importance of sectoral characteristics and dynamics in shaping employment relations processes. Lastly, this paper provides an important contribution to the literature on creative labour, by exploring the rather unexplored issue of interest representation in creative sectors and how they relate to sector-specific characteristics. In so doing, it takes up recent calls in the literature for more detailed empirical studies which go beyond a homogenizing view of creative labour and places strong attention to sectoral specificities.