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

Catherine Vincent, IRES
Kevin Guillas-Cavan, IRES

Multi-employer bargaining has been under pressure in recent years from the dual impact of the economic crisis and government interventions in areas traditionally within the remit of social partners’ autonomy (Marginson, 2014). Such pressure has impacted the structure of collective bargaining system and its outcome. The space for decentralised bargaining has increased and the degree of coordination of different levels of collective bargaining has weakened (Pedersini, Leonardi, 2018).

In France, until the last years, industry-level bargaining remained the main pillar of the industrial relations system, even if the strength and spread of collective bargaining have never relied on the existence of strong and encompassing bargaining parties, but on support from the state, particularly in the form of extension procedures and through the statutory minimum wage. In the past two decades, however, employers have chosen to privilege company-level bargaining to weaken the constraints imposed by legislation or by sectoral bargaining, but industry has remained an important level for determining employment and working conditions.

Since the 2008 crisis, France had to face similar economic challenges as many others European countries: sharp falls in employment and wage cuts or freezes. Its industrial relations regime has also come under growing pressure from European institutions to decentralize collective bargaining. This has opened the way to reforms based on government unilateralism which aim at increasing and relaxing the possibility for a company-level agreement to derogate to the industry-level ones. Most notably, the 2016 and 2017 reforms of labour market regulation and industrial relations conferred more autonomy on company bargaining and introduced a reversal of the norm hierarchy, by extending the issues for which priority is given to company-level agreements.

This overhaul of collective bargaining will certainly hasten the decline of the regulatory heft of industry agreements but not necessarily in the same way depending on the sectors. The existence of divergent practices between bargaining sectors is not new: many researches had highlighted that regulatory capacity differs according to industry (Bareau & Brochard, 2003; Castel et al., 2014; Rehfeldt & Vincent, 2018). In some industries, sectoral agreements are still central and create convergence of employment conditions in all companies whereas in most areas, particularly in the metal industry, employers’ federations sought to negotiate standards that preserve some leeway in large companies.

Our communication questions the room left for sector-level collective bargaining under the strain of the new forms of employment relations regulation: is the trodden path of sector-level bargaining now replaced by enterprise level? More particularly, we focus on the coordination between sector and enterprise as bargaining levels and its evolution . Is there disorganized and decentralized collective bargaining in all the sectors of activity? Do old sectoral differences persist or do new typologies emerge?

Regarding the decentralization and the ‘reversal of the norm hierarchy’, a part of the literature assumes the idea of a substitution of the company-level agreements to the ones occurring at the industry-level (Freyssinet, 2017). Recent works hint that, in a number of cases, there could still be complementarity between both levels (Gantois & France, 2016; Lemière & Denimal, 2016). Based on the first results of a study using the workplace survey REPONSE, this communication aims at presenting a typology of the different forms of articulation between industry and company-level agreement: does the company-level bargaining refer to the industry-level agreements, and if so, do company agreements precise, reinforce or derogate from the sectoral ones? In other words, this communication will present some insights in the often-used notion of articulation and try to enlighten the determining factors of the different modes of articulation (sector, company size, economic result, structure and density of the industrial relation in the company, etc.).

Our communication is based on research on the evolution of the French collective bargaining system carried out as part of two European projects on the coordination and decentralisation of collective bargaining, financed by the European Commission, and the first preliminary results of a research financed by the French Ministry of Labour on the articulation between industry and company-level bargaining.

• Barreau J., Brochard D. (2003), « les politiques de rémunérations des entreprises : écarts entre pratiques et discours », Travail et Emploi, n°93.
• Castel N., Delahaie N. and Petit H. (2014) “Diversity of compensation policies and wage collective bargaining in France”, in Rodriguez Fernandez M. L. and Vincent C. (eds), Dinámicas de la negociación collectiva en Europa, Cuadernos de Relaciones Laborales, 32 (2), 311-336.
• Delahaie N., Husson M., Vincent C. (2013), « Collectively agreed wages in France », in Shulten, Van Gyes, Collectively agreed wages in Europe, Bruxelles, European Commission.
• Freyssinet J. (2017), « Accords de branche et accords d’entreprise : dérogation, supplétivité ou autonomie ? », mimeo IRES, novembre.
• Gantois M., France P. (2016) Les négociations de branche et d’entreprise à la CFDT : Acteurs, ressources et pratiques, Noisy-le-Grand, IRES.
• Leonardo S., Pedersini R. (eds) (2018), Multi-employer Bargaining under Pressure. Decentralization Trends in Five European Countries, Bruxelles, ETUI.
• Lemière S., Denimal P. (2016), Quelle application des accords de classification de branche en entreprise ? Retours d’expérience dans trois branches, Noisy-le-Grand, IRES.
• Marginson P. (2014), “Coordinated bargaining in Europe: from incremental corrosion to frontal assault?”, European Journal of Industrial Relations, 21 (2), 97-114.
• Rehfeldt U., Vincent C. (2018) “The decentralization of collective bargaining in France: an escalating process”, in Leonardo S. and Pedersini R. (eds) Multi-employer Bargaining under Pressure. Decentralization Trends in Five European Countries, Bruxelles, ETUI, 151-184.

Elin Svarstad, Fafo Institute for Labour and Social Research, Oslo
Bård Jordfald, Fafo Institute for Labour and Social Research, Oslo

We will study wage growth and wage dispersion in the Norwegian construction industry. In the paper we focus on descriptive findings concerning wage development. We are interested in how legal extension of collective agreements (LECA) has affected the wage distribution in the industry, and how the LECA affects different crafts.

In relation to the size of the workforce, the Norwegian labor market was among those who absorbed most workers from the new EU countries . Workers from Polen, Lativa, Lithuana and other countries has entered the Norwegian labor market the last two decades.

In comparison to most other European Countries, there is no statutory minimum wage in Norway. The shift in the supply side in the labor market following the 2004 enlargement of EU put a pressure on the wage levels in several industries. As an instrument to avoid downward pressure on the wages, Norwegian Unions implemented legal extensions of the collective agreements (LECA). The purpose of the LECA is to ensure that foreign workers receive wage conditions that are equivalent to the conditions Norwegian workers have, and to prevent competition distortion to the disadvantage of the Norwegian labor market.

We will use the wage statistics collected by the Statistics Norway to analyze the developments in wages in the construction industry. First we will look into the aggregated increase in wages for the period, and how this increase is distributed. Secondly, we will analyze different crafts in the industry. We want to examine how the wages of workers with different qualifications is  affected by work immigration.

Katarzyna Skorupinska-Cieslak, University of Lodz

European Union enlargement to the countries of Central and Eastern Europe (CEE) significantly increased the heterogeneity of industrial relations in the EU. Weakness of social dialogue and industrial relations in CEE countries in comparison with the old EU-15 was visible in the lack of statutory forms of workers representation at company level, lower coverage of collective bargaining, lower trade union density and the absence of sectoral collective agreements. The initial “catching-up” process in these countries slowed down during the economic crisis. Reforms and austerity measures implemented during the crisis resulted in the fact that particular components of industrial relations in CEE countries have become similar. Based on the analysis of statistic data from the Eurostat, AMECO, ILO, OECD and ICTWSS databases, I examine the scope of convergence of CEE countries in the area of industrial relations in relation to the EU average. The construction of Employee Participation Index adapted to the specifics of industrial relations in eleven CEE countries, made it possible to determine the differences in the strength of workers’ voice in these countries. The highest value of this index for Slovenia results mainly from the highest coverage of collective bargaining among CEE countries, the level of ‘unionization” as well as the best indicators regarding the functioning of works councils (i.e. rights, potential range).

Stefania Marassi, The Hague University of Applied Sciences

Multinational enterprises (MNEs) have become global players in the current globalized labour market and their economic activities are no longer territorially limited. However, the regulation of these corporations is still predominantly governed by national law, which consider parent companies, subsidiaries and business partners as different legal entities.

The lack of international regulations governing the direct legal accountability of parent companies for the violation of labour standards by their subsidiaries and/or business partners has had severe social consequences. (H. F. Cantú Rivera, ‘Business & Human Rights: From a “Responsibility to Respect” to Legal Obligations and Enforcement’, 2015). To that end, MNEs and global/European trade unions have started concluding transnational company agreements (TCAs), amongst other CSR initiatives. The emergence of forms of transnational private labour regulation has then been the answer to tackle the discrepancy between economic and legal realities.

By looking at the texts of TCAs one can notice that the signatory parties extend the scope of application of some agreements not only to subsidiaries but also to suppliers and (sub-) contractors. An illustrative example is the recent international framework agreement (IFA) concluded by IndustriALL and H&M, a Swedish MNE in the garment sector, on the respect of fundamental rights (e.g. child labor, freedom of association) in H&M’s global supply chain (2015). The link between TCAs and the regulation of labour rights in MNEs’ global supply chains has been also reaffirmed by the International Labour Organization (ILO) in its recent report “Decent Work in Global Supply Chains” (2016).

The paper contributes to furthering the academic debate on the development of TCAs as well as on the regulation and enforcement of labour rights in MNEs’ global supply chains. To that end, it conducts qualitative empirical research via a textual analysis of the texts of TCAs. The aim is to map out the different provisions on the application of TCAs in the global supply chain, identify the state of play on the topic and update it. Building on this analysis, the paper intends to explore and propose potential strategies and mechanisms to ensure the enforcement of the labour standards laid down in TCAs throughout MNEs’ global supply chains. In doing so, it also examines the potential role the ILO could play in the regulation of TCAs and their implementation in the global supply chain.

Place in the system of labour law sources

Kirill Tomashevski, International University “MITSO”, Minsk

In connection with the processes of globalization and internationalization of the economies of States in different regions of the world, the increasing pressure of competition, there are new forms of social partnership agreements at the regional levels (so called transnational collective agreements) and global collective agreements. Regional associations of employers and trade unions, transnational corporations and trade unions participate and play an important role in this process. The paper examines collision issues related to the solution of the problem of correlation of transnational collective agreements and global collective agreements with other international and national sources of labour law.

In his monograph (“System of Labour Law Sources of Belarus (history, theory and practice)”, Minsk, 2013) the author justified the concept of transition from the dual system of sources of labour law to the triune system. This system includes in addition to the traditionally subsystems of national sources of labour law, international labour law and a third, a new subsystem – supranational sources of labour law. In the development of this conceptual idea, it can be extended to the system of sources of labour law of both EU and the EAEU member States. In favor of the substantiation of the concept of a triune subsystem in the systems of modern sources of labour law of the Eurasian Economic Union (EAEU) and the EU member States, the report will provide additional arguments. The author will seek the place of transnational collective agreements and global collective agreements in the triune system of sources of labour law: do they belong to national, international or supranational sources of labour law? The speaker will also try to answer the question: what rules of labour law prevail there (mandatory, dispositive or soft law)?

This paper is almost not settled both in the national labour legislation of the member states of the EU and the EAEU , and at the international level. The author examines specific examples of transnational collective agreements and global collective agreements from the legal system of the European Union, as well as the member states of the Eurasian Economic Union, in particular the Russian Federation. The conceptual solutions to the above-mentioned problem of resolving legal conflicts between transnational collective agreements and global collective agreements and national social partnership agreements in the member states of the EU and the EAEU will be proposed.

Thomas Haipeter, Institute for Work, Skills and Training, University of Duisburg-Essen

Transnational information and consultation has become an integral part of labour regulation in a number of multinational companies (MNC), driven by the EU directive on European Works Councils (EWC). Empirical studies have offered valuable and manifold insights into structures and practices of EWCs. However, many of these studies focused to a large extent on EWCs as a singular institution or as an independent (collective) actor or organization, while the complex interplay of different actors and institutional levels within MNCs – the way interests are articulated – was not systematically taken into account. The perspective on EWC as single actors, however, does not seem to be sufficient to understand the way interests and identities are constructed and shaped – if at all – on the transnational level. Especially it does not explain how information, definitions and resources flow between the different levels and institutions of interest representation, for instance works councils, comités d’établissement, délégués du personnel or shop stewards at the local level, comités central d’entreprise/comités de groupe, central or group works councils and board-level employee representation at the national company level. The picture is even getting more complex if the trade unions, local unions, national unions as well as European and Global Union Federations are taken into account as well.

Against this backdrop, we will try to widen the perspective and to analyse the processes of articulation that are developing between these different institutions and levels of interest representation in processes of restructuring and whipsawing within MNC. Our analysis is based on case studies in ten MNC we made in the context of a research project funded by the German Research Foundation. The case studies are based on semi-structured interviews with EWC members, employee and union representatives at the national and local level in at least three countries within each of the MNC. We will develop a typology of patterns of articulation of interest representation and show why and in what respect the cases differ, what the conditions for higher levels of articulation are, why actors from local and national levels get involved in transnational collective action and if and in how far they benefit from transnational interest representation on the local and national levels.      

Nothing new under the sun!

Calogero Massimo Cammalleri, University of Palermo

The paper jointly studies the impact of work through digital platforms and of the vast AI robotics implementation on issues of employment law and social security. The point of view and the remedy that is suggested are both quite unorthodox. The point of view is one of law and literature; the remedy is taken from law and economics. Even if the essay agrees that the proposal of introducing both a social contribution on robots and a new regulation via apps poses the right question, it holds that such solutions are not necessarily the right way. In fact, since these would ‘anthropomorphise’ robots and algorithms, it would inevitably be useless, similar to an increase in social contributions. Conversely, the article proposes a radical change in perspective, deeming that social protection in the digital era requires new relationships between ‘every’ market and ‘the’ social justice. For the latter purpose, the article proposes to break the two alternative dichotomies of Bismarckian/Beveridgean systems of social provisions and that of employee/independent-contractor (at the level of regulation through the law). In this regard, such change is reached without extending the regulation of employees. Consequently, the essay suggests introducing a new ‘uniform’ and indirect financial system for protections for those who are not in a Standard Employment Relationship. Such a ‘uniform’ financing device for social contributions is based on the ‘added value’ of work rather than (the opposite of how it actually is) based either on the wage of an employee or on the earnings of the self-employed. This way, the shifting boundaries of contracts between companies or firms and employees or workers, or even the self-employed and so on, can be overcome because no particular contract is needed for protection. The same applies to the use of robots.

Obedient anticipation, implementation ‘one-to-one’ or testing the waters?

Karen Jaehrling, Institute for Work, Skills and Training, University of Duisburg-Essen
Christin Stiehm, Institute for Work, Skills and Training, University of Duisburg-Essen

The paper analyses if and to what extent it is possible to speak of a ‘paradigm shift’ in German procurement policies as a result of the new EU procurement directives. Preliminary evidence suggests that the adoption of rules and routines that aim to effectively boost job quality in contracted out services is dependent on a number of other factors and trends that are largely disconnected to current EU level rulings and regulations. Next to the willingness of public authorities to actively ‘test the waters’ of EU case law, it is also the trend towards a stronger professionalization of public procurement and a stronger judicialisation of procurement procedures which has (ambiguous) effects here.

Identifying, interpreting and implementing ‘social value’

Mat Johnson, The University of Manchester
Aristea Koukiadaki, The University of Manchester
Stephen Mustchin, The University of Manchester
Laura Watt, The University of Manchester

This paper explores the emergent role of labour clauses in public procurement in the UK following the implementation of two key pieces of legislation: the 2012 UK Social Value Act and the revised 2014 EU Procurement Directive. Drawing on an analytical framework which distinguishes between contestation within and between different social sub-systems involved in procurement (ie economic, legal and political), we assess the evolution of ‘social value’ procurement in UK local government. Preliminary evidence suggests that while the recent regulatory developments have mitigated the extent of jurisprudential contestation, there is continuing divergence in the scope and depth of labour clauses at local level.

The state and industrial relations: From supportive to intrusive?

Niklas Bruun, University of Helsinki

The new EU Procurement Directives adopted in 2014 imposes new obligations on Member States to take effective measures in order to ensure that public contractors comply with social and labour law provisions including those established by collective agreements. The paper discusses the new Swedish legislation implementing the directive and discusses the problems which occur when linking the Swedish collective bargaining system with public procurement.