Abstract
This article explores the transnational regulation of temporary work. Analyzing the terms of the EU Directive on Fixed-Term Work (1999), the ILO Convention on Private Employment Agencies (1997), the ILO Recommendation on the Employment Relationship (2006), and a draft EU Directive on Temporary Agency Work under negotiation, it demonstrates that these regulations hinge on the gendered norm of the standard employment relationship (SER) or the full-time permanent job complete with a social wage. They pursue labor protections designed to stretch the employment norm. To the extent that this “SER-centric” approach alleviates precariousness, it is most likely to help workers in forms of employment closely resembling the SER (i.e., fixed-term workers) and least likely to improve the situations of those that are most precarious (i.e., temporary agency workers).
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Notes
The term casual work has different meanings in different contexts. Colloquial understandings of casual work suggest intermittancy, often associated with work arrangements that involve being on-call and, hence, labor statistics in most EU countries, as well as Canada and the United States, treat casual work as a subset of temporary work. Yet elsewhere casual work denotes the absence of the full range of labor and social protections attached to the SER. In Australia, for example, it is defined by the absence of leave entitlements, as well as lesser protections against unfair dismissal and access to unpaid parental leave than permanent employment, and the presence of loadings (see Burgess et al, this issue). Yet, whatever the context, casual work implies economic insecurity.
For an extensive discussion of dimensions of labor market insecurity, see Rodgers (1989), who coined this concept.
In the US, ‘contingent work’ is a measure equivalent to ‘temporary work.’ It is broadly defined as all jobs held by wage and salary workers who do not expect their job to last (Polivka 1996).
Between 1985 and 1998, Spain, Finland, Sweden, and the Netherlands experienced particularly sharp growth rates (Booth et al. 2002). In 2002, Spain reported the highest share of temporary work (31.2%) among the EU 12 followed by Portugal (21.8%), Finland (17.3%), Sweden (15.7%), and the Netherlands (14.3%) (OECD, 2002, p. 33)
In 2000, women represented 59.2, 58.5, 55.6, 53.4, and 53.7% of all temporary employees in these EU countries respectively (EUROSTAT 2002).
More broadly, the rise of these forms reflect “gendering of jobs” (Vosko 2000), a notion that attempts to capture the simultaneous deterioration in the wages and conditions of employment of certain groups of men and enduring economic pressures confronting many women inspired by feminist scholarship on economic restructuring in which the “intensification” of gender (Bakker 1996) and gendered “harmonizing down” (Armstrong 1996) are key themes.
Among EU countries, Spain has the highest rate of fixed-term work (30.6% of total employment and roughly 90% of temporary work in 2004) followed by Portugal, Finland, France, Sweden, and the Netherlands (EuroFoundation 2003, Fig. 1).
In Canada, fixed-term workers earned, on average, 84.3% of their permanent counterparts on an hourly basis in 2005. A gender earnings gap also characterizes fixed-term work in Canada: average hourly wages for men and women respectively were $16.66 and $15.04 in 2005 (LFS 2005, Custom Tabulation). Similarly, the basic hourly or monthly wages of fixed-term workers are lower than workers on open-ended contracts in several EU countries (e.g., Spain and Ireland) while in many other countries fixed-term workers earn less than permanent workers because wage payments are tightly linked to length of service (e.g., Belgium, Finland, France, Greece, and Norway) (Romans and Hardason 2005, p. 9).
In the EU, temporary agency work is most widespread in France, the Netherlands, Germany, and Sweden; for example, it represented 25.7% of total temporary work in France in 2001 and 36.8% of total temporary work in the Netherlands in 1999 (OECD 2002, p. 134).
In Canada, in 2005, women represented 56% of temporary agency workers, while men represented 44% (Labour Force Survey 2005, Custom Tabulation). The same year, 53% of temporary agency workers in US were women (US Bureau of Labor Statistics 2005). In the EU, men dominate in temporary agency work in France, Germany, and Spain, where it is concentrated in industrial sectors, while more women than men engage in it in Finland and Denmark, where it is quite prevalent in services.
In Canada, for example, the user firm is typically held responsible for occupational health and safety but decisions vary as does the effectiveness of laws on the books.
Temporary agency workers technically have the right to organize and bargain collectively in North America and the EU, yet their capacity to exercise control over the labor process tends to be theoretical rather than practical, especially in Canada and the United States where decentralized bargaining is at odds with temporary workers’ movement from worksite to worksite and where, as a consequence, disputes over the appropriate entity with which to bargain and/or the bargaining unit are common (Vosko 2000, Chap. 8).
According to the U.S. Bureau of Labor Statistics (2005, p. 20) “median usual weekly earnings varied widely among full-time wage and salary workers in the four alternative employment arrangements. Contract company workers ($756) and independent contractors ($716) earned significantly more than on-call workers ($519) and temporary help agency workers ($414).”
Their relative wages are particularly low in Germany, where a national report cites cases in which average hourly earnings are 30% below the comparable user-firm rates, in Portugal, where the state inspection body documents salaries below those defined by law, collective agreements or practice in the user company, and in the UK where the average weekly income of full-time agency workers in 1999 was just 68% of all employees (The comparable figure for fixed-term workers in the UK was 89% that year) (Storrie 2002, pp. 54–55).
According to European Trade Union Institute (ETUI) (Schömann et al. 2003, p. 9): “a feature common to all the EU Member States and the accession countries is the listing of objective reasons under which fixed-term contracts may be concluded... [including] economic and/or social grounds such as temporary and exceptional peak workload, or seasonal activities, or the replacement of an employee temporarily absent or the specific nature of the activity (art and media sectors for example), or factors connected to the employee such as a time- limited work permit.”
Some countries limit the number of possible renewals within a given period (ranging from one in Italy to two in the Netherlands and three in Portugal) while others specify a maximum total duration of a relationship with a given employer (e.g., 1 year in Spain, 18 months in France, 2 years in Luxembourg, Latvia and Slovenia, 3 years in the Netherlands and Sweden, and 4 years in the United Kingdom, unless there are objective reasons justifying a contract for a longer period) (Schömann et al. 2003, p. 10).
Virtually no federal or provincial/ state legislation in Canada or the United States focuses explicitly on temporary agency work. In instances of abuse in Canada, complainants typically resort to general provisions in labour standards legislation; for example, in where the agency owes wages to the worker, they often use provisions on related-employers. Complainants use American jurisprudence on joint employers with similar effects (Davidov 2004).
France, for example, limits the use of agency workers to 18 months (Clauwaert 2000).
As a general rule, EU countries prohibit the use of temporary agency workers as replacement workers.
Spanish legislation, for example, stipulates that pay for agency workers should be the same as that of comparable workers in the user enterprise form. However, its definition of pay excludes other pecuniary benefits (e.g., profit sharing, etc.) (Storrie 2002, p. 22).
In the case of ILO conventions, they become formal legally entrenched commitments only once they are ratified by a member state. ILO recommendations, which have traditionally supplemented conventions, are even softer laws. EU directives, in contrast, have a more binding effect, although the extent of such effects varies since they tend to operate as frameworks permitting national differences. For example, while the EU Directive on Fixed-Term Work led to the introduction of new regulations in the United Kingdom and Sweden, the nature of the national-level regulations adopted varied markedly such that restrictions on fixed-term work remained rigid in Sweden and relatively lax in the United Kingdom (for a discussion of the UK case, see Green, in this issue).
EU-level negotiations date to 1982 with a failed proposal for a “Council directive concerning temporary work” designed to cover “the triangular relationship involving a temporary employment business and the direct relationship between an employer and an employee engaged on the basis of a fixed-duration contract” and setting out circumstances in which these forms of temporary work could be used (Council of the EU 1982a, p. 1). This proposal specified that firms could only use temporary agency workers in instances of a temporary reduction in the workforce or a rare and temporary increase in production and could use fixed-term workers for these purposes as well as to carry out a clearly specified “occasional task of a transient nature, where work is of a ‘special nature,’ or in connection with a ‘new activity of uncertain duration’” (Council of the EU 1982b, Art. 15.1). The proposal set out a three-month maximum for all assignments through temporary agencies and permitted one renewal only, except under special circumstances (Council of the EU 1982b, Art. 3.2). Under the proposal, the contract of employment was “deemed to be of indefinite duration” in instances of abuse (Council of the EU 1982b, para 15.3).
In 1990, a new proposal emerged for three separate directives on so-called atypical work. Two such directives were to address various forms of part-time and temporary work (i.e., proposed directives on “certain employment relationships with regard to working conditions” and “certain employment relationships with regard to distortions of competition”) but neither came to fruition. A third, on the safety and health of temporary workers, including fixed-term and temporary agency workers, passed, after reformulation, in 1991, under a procedure permitting a qualified majority vote in Council introduced under the Single Europe Act, which involved crafting the directive to reflect legislative bases (e.g., health and safety) rather than focus on form of employment (Jeffery 1995, 296). After its passage, negotiations on part-time and temporary work proceeded separately. Once a Directive on Part-Time Work was adopted, negotiations on fixed-term and temporary agency work were also separated.
Framework agreements are negotiated by the social partners—ETUC, the confederation of private sector employers (UNICE), and the confederation of public sector employers (CEEP)—before becoming EU law on the basis of a legislative framework set out in the Agreement on Social Policy annexed to the Maastrict Treaty.
To be clear, this article analyzes the terms of the draft Directive on Temporary Agency Work of 2002 placed in abeyance in 2003. The draft text analyzed (and described using the present tense herein) passed in a second reading of the European Parliament in 2002 but was blocked in Council in 2003. This text was the latest draft available for analysis at the time of writing, although informal discussions amongst the social partners directed at restarting formal negotiations took place in late December 2006.
For example, persons defined as ‘workers’ under UK law.
That is, “having an employment contract or relationship entered into directly between an employer and a worker” (Council of the EU, 1999, Annex, Clause 3.1).
Where there is no such worker in the same establishment, comparison is to be made by reference to the applicable collective agreement or, in the absence of such agreement, in accordance with national law, collective agreements or practice.
The directive also requires that due regard be given to “other considerations which may include seniority and qualification/skills,” a qualifier making seniority and skill or qualification level bases for rejecting a comparison between certain fixed-term and permanent workers engaged in the same work (Council of the EU, 1999, Annex, Clause 3.2) (for a parallel assessment the EU Directive on Part-Time Work from which I draw influence in making this point, see Murray 2001, p. 165).
The precise definition of non-discrimination is left with Member States.
This last qualifier makes possible the exclusion of fixed-term workers from undefined employment conditions. It reflects the same conception of equivalency used in the EU Directive on Part-Time Work, which emerged out of employers’ contention that “similar or comparable treatment should be a sufficient interpretation of non-discrimination” (Bleijenbergh et al. 2004, p. 318).
The directive also includes a provision “relating to particular conditions of employment” providing for the same period-of-service qualifications for fixed-term and permanent workers, which aims to prevent employers from using fixed-term workers to avoid employment protections; however, it fails to specify the conditions covered and permits “different length-of service qualifications on objective grounds” (Council of the EU, 1999, Annex, Clause 4.4).
Another mechanism to curb abuse is the requirement that employers inform fixed-term workers about “vacancies” for permanent positions (Council of the EU, 1999, Annex, Clause 6).
To this end, it defines private employment agencies as “employing workers with a view to making them available to a third party...which assigns their tasks and supervises the execution of these tasks” (ILO 1997b, Art. 1.1b).
This provision was the outcome of a joint declaration by the employer’s association and the union confederation involved centrally with temporary agency work in the EU (i.e., CIETT and UNIEUROPA). However, it was subsequently rejected by UNICE as well as several EU governments, slowing down negotiations in late 2002.
UNIEUROPA secured this provision in exchange for granting CIETT provisions extending legitimacy to temporary agencies, noted under Article 4 of the draft, which addresses the “review of restrictions or prohibitions.” This Article permits states to maintain “requirements with regard to registration, licensing, certification, financial guarantees and monitoring of temporary agencies” but instructs them to “review” and “discontinue” restrictions or prohibitions on temporary agency work except on limited grounds: namely, “the protection of temporary [agency] workers, the requirements of health and safety at work, and the need to ensure that the labor market functions properly and abuses are prevented.”
Temporary workers are also to be given access to “amenities or collective services of the user enterprise,” such as childcare, cafeteria and transport services, “under the same conditions as workers employed directly unless there are objective reasons against this” (EU 2002, Art. 6.4).
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Acknowledgments
The research for this article was made possible by a standard research grant from the Social Sciences and Humanities Research Council of Canada (grant no. 410-2006-2361) and the Canada Research Chairs Program. I am grateful to the two anonymous reviewers for their comments as well as to Gerald Kernerman, Stephen McBride, Paul Bowles and Fiona McPhail for their feedback on earlier versions of the article, and to Jeff Butler for his able research assistance. I completed this article as a Visiting Fellow at the International Gender Studies Institute, Queen Elizabeth House, the University of Oxford.
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Vosko, L.F. Temporary Work in Transnational Labor Regulation: SER-Centrism and the Risk of Exacerbating Gendered Precariousness. Soc Indic Res 88, 131–145 (2008). https://doi.org/10.1007/s11205-007-9206-3
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DOI: https://doi.org/10.1007/s11205-007-9206-3