Collective bargaining and precarious workers

1. Collective bargaining and precarious workers Karen Curtis, Deputy Director, International Labour Standards Department

2. Collective Bargaining • Between employers or their organizations, and workers’ organizations • State obligation to promote CB • Undermining of collective representation • Concept of voluntary must be accompanied by that of good faith

3. Sub-contracting and the disguised employment relationship • CFA receives increasing proportion of complaints related to FOA violation at the workplace • The methods used for non-recognition of representative workers’ organizations – creating a veritable class of precarious workers - vary but the results are the same

4. Precarious employment 101 • Illegal dispatch workers = precarious workers in disguised employment relationships • Purported coverage of labour legislation but rights impossible to exercise • Recurring acts of anti-union discrimination and dismissal • Employer refusal to bargain • Further threat of imprisonment and exorbitant compensation suits for obstruction of business

5. Disguised employment . . . • Used across sectors (Korean cases -metal workers, the construction industry) • Can involve a complex bargaining context with several layers of subcontractors • Legislation developed to protect against abuse often insufficient – the Act on the Protection of Dispatched workers

6. Inadequate protection • Workers are not fired, their contracts are simply not renewed • Non-extension of contract with sub-contractor, but privileged renewal of non-unionized workers

7. A case in point • Union established to put forward claims for equal treatment and FOA protection for subcontracted workers • Employer locks out workers • Violence allegedly escalates as workers try to enter the factory and then turn to the regional labour office • Conviction for obstruction of business

8. Employers’ response • Allegations of unfair dismissal are false since a subcontracting agreement can be concluded, renewed or terminated by the subcontractor under the principle of private autonomy

9. The Catch 22 of CB • Union activities directed at the principal employer are labelled as illegal • The issue of whether a subcontracting company/main employer is under an obligation to negotiate is for the courts • Subcontractors claim to have no control over the terms and conditions of employment in the plant • Industrial action is either seen as premature or as directed against an unrelated party and deemed illegal

10. State duty • It pertains to the Govt to ensure that subcontracting is not used as a way to evade the application of the freedom of association guarantees and to ensure that trade unions representing subcontracted workers may effectively seek to improve the living and working conditions of those whom they represent

11. Employment Relationship Recommendation No. 198, 2006 • Labour law seeks to address what can be an unequal bargaining position between the parties to an employment relationship • National policy on the basis of consultation with the social partners should provide guidance to the parties in the workplace to combat disguised employment relationships and establish responsibility • Need to address uncertainty around the employment relationship to guarantee fair competition and effective worker protection

12. Other types of contractual arrangements • Numerous cases of the use of cooperatives • Workers dismissed and rehired in the form of cooperatives • No right to organize, CB or strike

13. Promotion of Cooperatives Recommendation No.193, 2002 • FPRW for all workers in cooperatives • Ensure that cooperatives are not set up for, or used to establish disguised employment relationships • Combat pseudo cooperatives violating workers’ rights

14. Definition of “employee”A case study • Workers in social services, health and home child care overcome geographical and social isolation to form trade unions under relevant labour laws and give notice to begin CB • Are re-designated “independent workers”; employment relationship redefined as contract for services • Union certification revoked • Consultation mechanisms replace CB

15. Conclusions – ways forward • Fear of CB and avoidance techniques • Meaningful promotion of CB and protection of organizational rights needs to directly address these gaps in full consultation with the social partners • Special protective measures may be necessary - R 143 • Industrial/sectoral level bargaining with extension to all relevant workers – R 91