Lecture 5. The concept of employment relationship and international regulation of working hours, wages, safety and health at workplace

LECTURE COURSE

The employment relationship is a legal notion widely used in countries around the world to refer to the relationship between a person called an “employee” (frequently referred to as .a worker.) and an “employer” for whom the employee performs work under certain conditions in return for remuneration. It is through the employment relationship, however defined, that reciprocal rights and obligations are created between the employee and the employer. The employment relationship has been, and continues to be, the main mechanism through which workers gain access to the rights and benefits associated with employment in the areas of labour law and social security. It is the key point of reference for determining the nature and extent of employers rights and obligations towards their workers.

The profound changes occurring in the world of work, and particularly in the labour market, have given rise to new forms of relationship which do not always fit within the parameters of the employment relationship. While this has increased flexibility in the labour market, it has also led to a growing number of workers whose employment status is unclear and who are consequently outside the scope of the protection normally associated with an employment relationship.

The question of the employment relationship has, in one form or another, been on the agenda of the International Labour Conference for over a decade. In recent years, the Conference has held discussions on self-employed workers, migrant workers, homeworkers, private employment agency workers, child workers, workers in cooperatives, and workers in the informal economy and in the fishing sector. It has also addressed work relationships in the course of discussions on social security and maternity protection. In 1997 and 1998, the Conference examined an item on .contract labour. Then original intention of the Conference discussion on .contract labour led to recognition of importance of adoption of a Convention and a Recommendation, which would protect certain categories of unprotected workers. But the proposal to adopt a Convention and Recommendation failed. However, at the end of the second discussion in 1998, the Conference adopted a resolution in which it invited the Governing Body of the ILO to place these issues on the agenda of a future session of the Conference with a view to the possible adoption of a Convention supplemented by a Recommendation if such adoption was, according to the normal procedures, considered necessary by that Conference.

At the 91st Session of the Conference in June 2003, a general discussion was held on the scope of the employment relationship. During the discussion, many delegates emphasized that the concept of the employment relationship is common to all legal systems and traditions. There are rights and entitlements which exist under labour laws, regulations and collective agreements and which are specific to or linked to workers who work within the framework of an employment relationship. One of the consequences associated with changes in the structure of the labour market, the organization of work and the deficient application of the law is the growing phenomenon of workers who are in fact employees but find themselves without the protection of labour legislation. There was a shared concern among governments, employers and workers to ensure that labour laws and regulations are applied to those who are in employment relationships and that the wide variety of arrangements under which work is performed by a worker can be put within an appropriate legal framework.

The employment relationshipis a legal concept which underpins the operation of the labour market in many countries. This was confirmed particularly in the discussions on contract labour at the International Labour Conference in 1997 and 1998, the Conference discussion leading to the adoption of the Private Employment Agencies Convention, 1997 (No. 181).

One of the most uncommon types of employment relations is so cold “triangular” employment relationships. The growth of temporary agency work has led to changes in labour. The aim is to establish the respective responsibilities of the work provider and user enterprise for safeguarding workers’ rights. A “three-way relationship” between a user undertaking, an employee and an agency usually arises where a temporary agency worker is hired out by the agency to perform work assignments at the user firm, under a commercial contract. The resulting “dual employer” situation adds to the complexity of the employment relationship. Similar problems can arise where workers are involved in extended subcontracting chains.

A wide variety of contracts can be used to formalize an agreement for the provision of work. But they may present a technical difficulty, as the employees concerned may find themselves interacting with two (or more) interlocutors, each of whom assumes certain functions of a traditional employer. In such circumstances, it is essential that employees know who the employer is, what their rights are and who is responsible for them. It is equally important to determine the position of the user with respect to the employees of the provider enterprise.

The problems faced by workers involved in “triangular” employment relationships pose different legal questions. These are workers employed by an enterprise (the provider) who perform work for a third party (the user) to whom their employer provides labour or services. For these employees, their employment status is not in doubt, but they frequently face difficulties in establishing who their employer is, what their rights are and who is responsible for them.

The employment relationship continues to be the predominant framework for work in many countries. Moreover, in the industrialized countries, in particular, the employment relationship is not just predominant but is proving durable, contrary to persistent reports that major changes in employment relationships have led to less stability and greater numerical flexibility.

Of course, the situation with regard to the employment relationship is not the same in every country. Where the formal economy absorbs only a very small part of the population and where high unemployment swells the ranks of the self-employed, the reality tends to be different. Even in these cases, however, wage earners may represent a significant proportion of the working population in quantitative terms.

People may provide their labour either within the employment relationship under the authority of an employer and for remuneration or within a civil/commercial relationship independently and for a fee. Each of these relationships has certain characteristics which vary from one country to another and determine to what extent the performance of work falls within an employment relationship or a civil/commercial relationship.

In some countries and in some sectors more than others, employment relationships have become more diversified. They have become much more versatile and, alongside traditional full-time employees, employers are increasingly employing workers in other ways which allow them to use their labour as efficiently as possible. Many people accept short-term employment, or agree to work certain days of the week, for want of better opportunities. But in other cases, these options are an appropriate solution, both for the worker and for the enterprise. Recourse to various types of employment is in itself a legitimate response to the challenges faced by enterprises, as well as meeting the needs of some employees for more flexible work arrangements. These various types of work arrangements lie within the framework of the employment relationship.

To define, in what cases employment relations exist, in 2006 ILO adopted Employment Relationship Recommendation No. 198. This document provides criteria for determination of the existence of an employment relationship. Those criteria are:

(a) the fact that the work: is carried out according to the instructions and under the control of another party; involves the integration of the worker in the organization of the enterprise; is performed solely or mainly for the benefit of another person; must be carried out personally by the worker; is carried out within specific working hours or at a workplace specified or agreed by the party requesting the work; is of a particular duration and has a certain continuity; requires the worker's availability; or involves the provision of tools, materials and machinery by the party requesting the work;

(b) periodic payment of remuneration to the worker; the fact that such remuneration constitutes the worker's sole or principal source of income; provision of payment in kind, such as food, lodging or transport; recognition of entitlements such as weekly rest and annual holidays; payment by the party requesting the work for travel undertaken by the worker in order to carry out the work; or absence of financial risk for the worker.

Disputes concerning the legal nature of a relationship for the provision of labour are increasingly frequent. The employment relationship may be objectively ambiguous or disguised.

. In a standard employment relationship, the worker’s status is not normally open to doubt. In some cases, however, a worker may have a wide margin of autonomy and this factor alone may give rise to doubt as to his or her employment status. There are situations where the main factors that characterize the employment relationship are not apparent. It is not a case of a deliberate attempt to disguise it, but rather one of genuine doubt as to the existence of an employment relationship. This may occur as a result of the specific, complex form of the relationship between workers and the persons to whom they provide their labour, or the evolution of that relationship over time. Such situations may occur with persons who are normally self-employed, such as electricians, plumbers and computer programmers, and who gradually enter into a permanent arrangement with a single client.

In other cases, especially in work environments affected by major changes, it is possible and sometimes necessary to resort to a range of flexible and dynamic employment arrangements which can be difficult to fit into the traditional framework of the employment relationship. A person may be recruited and work at a distance without fixed hours or days of work, with special payment arrangements and full autonomy as to how to organize the work. Some workers may never even have set foot in the enterprise if, for example, they have been recruited and work via the Internet and are paid through a bank.

A disguised employment relationship is one which is lent an appearance that is different from the underlying reality, with the intention of nullifying or attenuating the protection afforded by the law or evading tax and social security obligations. It is thus an attempt to conceal or distort the employment relationship, either by cloaking it in another legal guise or by giving it another form. Disguised employment relationships may also involve masking the identity of the employer, when the person designated as an employer is an intermediary, with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers.

The most radical way to disguise the employment relationship consists of giving it the appearance of a relationship of a different legal nature, whether civil, commercial, cooperative, family-related or other. Some of the contractual arrangements most frequently used to disguise the employment relationship include a wide variety of civil and commercial contracts which give it the semblance of self-employment.

Many national labour laws contain provisions on the employment relationship, particularly with regard to scope. Despite certain similarities, however, not all national labour laws provide exhaustive or equal coverage of the subject. Some provisions deal with the regulation of the employment contract as a specific contract, its definition, the parties and their respective obligations. Other provisions are intended to facilitate recognition of the existence of an employment relationship and prescribe administrative and judicial mechanisms for monitoring compliance and enforcing these laws.

Legislation of different states deals differently with the determination of employment relations. Legislation of some states contains substantive definitions, which basically provides that the employment contract is an agreement under which a person undertakes to carry out work for another person in exchange for payment of remuneration, under specified conditions. Certain factors are used to determine whether or not a contract is an employment contract; the description of these factors varies in wording and level of detail from one country to another.

In other, usually common-law countries legislation contains descriptive definitions of employment relations. The employment contract is simply described, without referring to the factors characterizing it as an employment contract.

In some countries legislation defines certain categories of working people who can be recognized as employees. For example, in Spain professional sportspersons are deemed by law to have a special employment relationship. In France, the following categories are presumed to have an employment relationship under certain conditions: performing artists, models, professional journalists, sales representatives or travelling salespersons.

One of the most effective legislative methods for ensuring existence of employment relations is to provide by domestic legislation provisions that easier burden of proof for employee. . In order to ease the burden of proof on workers seeking to prove the existence of an employment contract, the law may provide that such contracts are consensual, i.e. formed merely by the consent of the parties without further formalities. Law may require that the contract be in writing for various reasons relating to compliance or to evidence; or it may proceed from the assumption that the employment relationship exists based on the fact that services are provided.

Date: 2016-03-03; view: 1065