Notes on Chapter 5
5.1 . Forms of Informal and Precarious Work
- Forms of employment that differ from the “Standard employment relationship”: informal work, atypical work, vulnerable work, marginalised work, etc.
- Standard Employment or “typical wage job”: a. Permanent b. Fulltime c. Clearly defined Employer d. Work performed at workplace owned by the employer
- The definition of ‘informal economy ‘ has been expanded to include all workers in unprotected employment relationships, which could include both unregistered and formal enterprises and self-employed workers.
- Huge diversity of workers procuring jobs outside the standard jobs
- Focus of Unions/scholars has been, until the last decade, on the employers who push workers into non-standard employment through sub-contracting or redefining workers as ‘independent contractors’.
- “Precarisation from above”: Vulnerable work created by employers who want to avoid their legal obligations.
- “Precarisation from below”: The informal sector
Larger workforce in ‘vulnerable’ jobs where vulnerability is not directly created by employers- street vendors, hawkers, domestic workers, taxi drivers, etc. All of these employments are extremely vulnerable but either there is no employer, i.e. self-employment, or the employer-employee relationship differs greatly, ex. Home-based workers.
This is caused by a combination of employers who try avoiding the law as well as the large number of workers unable to find employment within the standard employment and are forced to carve out their livelihood outside the formal labour market.
- Informal workers are often paid very low wages and have to pool other resources to gain a livelihood: a. Remittances from employed relatives b. Government grants and subsidies c. Access to land
- Informal workers face issues different from other precarious workers, in organising, making collective demands and accessing rights, primarily due to a lack of clear employment relationship. Demands are thus often directed at the state. They are also more politicised and extend beyond traditional labour concerns and includes broader livelihood concerns. Thus, scholars debate: a. Whether and how they can be integrated into existing labour unions and movements b. If they can be accommodated under the existing legal framework that governs standard employment
5.2 Access to Rights for Workers in the Informal Economy
[Additional Interview with Jayanti Ghosh, JNU]
1. Access to rights for workers in the informal economy is much more complex than for the workers in the formal economy due to the differences in the ‘work relations’.
2. Several workers are self-employed, ex. Street vendors whose rights include
3. Other workers have employers but not a single clear one: ex. Casual workers and agricultural workers whose rights include:
a. A decent daily wage
b. Regular Employment
c. Social Security
4. Many workers are not visible
a. Home based workers: mostly women, in stitching/food processing, etc. for contractors or direct sale
b. Domestic workers: not even recognised
5. Tools to access rights are the same:
c. Policy Advocacy
6. Methods are different:
a. Bargaining partners:
i. Street vendors: city authority, which is generally more difficult.
i. Home-based workers, etc.
7. Rights cannot be separated narrowly
a. Depends on each worker and their individual priorities:
Ex.: Migrant worker needs right to decent living conditions and rights as a ciizen just as much as a minimum wage
b. SEWA: Self-Employed Working Women’s Association
i. 2 million members in India
ii. Organised by looking at the whole lifecycle needs: the women express their needs in the forum of the union and this has led to the establishment of a bank, an insurance company and several cooperatives in order to allow the women to access the rights.
5.3 Examples and Definition of Precarious Work
-Peter Rossman: International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association [IUF]
[One pdf: Moving from precarious employment to decent work[…] not able to view/download]
Memphis, Tenessee, USA: Kelloggs
1. Lock out since October 22, 2015
2. Resistance to all new employment being
a. on ‘0 hour contracts’, i.e. No guaranteed hours
b. Inferior wages and benefits
Mondelez: Cadbury factory in Pakistan [successor to former Kraft Foods, bought cadbury, third largest food company]
3. Two years
4. ~700 employees but only 49 have permanent contracts
5. Rest are daily/monthly workers with no job security
6. Not enrolled in state mandated social security and pension funds.
7. Union of permanent workers have been agitating for two years to give ~200 workers permanent contracts so they can join the union
8. Company says it is not just impossible but ‘illegal’ to do so.
What is precarious work
9. Term rejected by employers
10. Argument: precarious is better than no jobs at all.
11. ILO’s standard employment relationship Negated by precarious work:
a. Full time work No guaranteed/specified/regular hours
b. Under a contract of employment
c. For unlimited duration/open contract Fixed/limited duration
d. Single employer Multiple/disguised employers
e. Protection against unjustified dismissal No protection from dismissal
12. Transformation of the employment relationship inside the formal economy is a real problem.
5.4 Tools against Precarious Work in the International Rights Framework
1. Three major tools
a. Conventions of the ILO
b. OECD Guidelines for multinational enterprises: soft law with limited geographical operation but significant
c. International Human Rights Law
2. Don’t give a lot of guidance on precarious work specifically, except convention 181 and other non-discrimination conventions that are not very specific on whether contractual status can be a ground.
3. Jurisprudence on C87 and C98
a. Case No. 2556 (2008): A chemical union in Columbia denied registration by the government on the grounds that the membership list included a number of agency [as in employed through an agency, i.e. contract workers] workers. Agency workers provide a service and are inherently different in nature from chemical workers who are involved in manufacturing.
b. ILO CoFA: “The status under which workers are engaged with the employer should not have any effect on their right to join workers’ organisation and participate in their activities... all workers without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organisations of their own choosing.”
c. In Pakistan and other countries workers are still denied organisation rights on the basis that they are agency/contract workers
d. What is important is that these workers should become permanent
e. Use of ‘agency workers’, contract labour, apprentices, temporary workers are essentially ways to fragment the bargaining power
4. Recommendation 198 on the Employment Relationship which recognises that “contractual relationships can have the effect of depriving workers of the protection they are due”.
a. “Protection due”: equality of treatment, bargaining, etc.
b. Recommendation expands on the ‘contractual relationship’ which disguises/conceals the true employment relationship: read additional material
5. OECD Guidelines
a. Has complaint mechanism which, unlike the ILO, allows for a complaint to be brought against a company
b. Revised recently to include a human rights chapter
Relevant when companies have to be confronted with abuses arising, inter alia, from precarious work:
“Respect for human rights is the global standard of expected conduct for enterprises independently of States’ ability and/or willingness to fulfill their human rights obligations, and does not diminish those obligations.
c. Requires human rights due diligence
i. The company is responsible for actual or potential adverse human rights impacts on their employers or the community in which they operate
ii. Companies must take both preventive and remedial action
d. Apply to the entire web of business relationships which includes:
ii. Agency Labour: if there is any ambiguity on employment relationship, look at recommendation 198
e. Since working relations change over time, “[...] enterprises are expected to structure their relationships with workers so as to avoid supporting, encouraging or participating in disguised employment practices: can argue that use of agency work is a violation of the Guidelines
f. The human rights include those guaranteed by:
i. Universal Declaration of Human Rights
ii. The International Covenant: ICCPR and ICESCR [?]
iii. ILO Core Conventions
g. The instruments enumerated are extremely important, ex.: Article 7, ICESCR recognises “the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular [...] fair wages and equal remuneration for work of equal value without distinction of any kind [...]”
6. Unequal treatment between permanent and nonpermanent employees may be said to violate international human rights commitments
7. Article 7, ICESCR also goes on to recognise “equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence.”: employing agency workers means that they are outside the regular company hierarchy and will not get promoted. It can be argued it is a violation of international human rights standards to maintain temporary and agency workers along permanent workers in a situation of permanent precariousness.
8. OECD Guidelines human rights due diligence means minimising actual and potential violations through
a. Reducing the extent of precarious work employed
b. Demonstrate that they are moving away from precarious employment to more stable jobs through negotiations with trade unions
c. Companies have to engage in continuous monitoring, with the unions, both in their operations as well as their suppliers and manufacturers.
5.5 Practical Experiences: Organising in the Informal Economy
[Three additional interviews not noted]
Luisa Nxumalo, Organiser, Congress of South African Trade Unions
1. Strategies for organising workers in the informal sector in South Africa?
a. Organise them, encourage them to form cooperatives, use skills from their time in the organised sector
b. Social Security- small groups/societies-: ~ small group funds
c. Work with other organised federations
d. Provide them with facilities and resources of the Congress offices
e. Work directly with the municipalities
f. Workshops and seminars on challenges faced and possible solutions.