Volume 72, Number 3, Summer 2017
Les nouvelles frontières de la relation d’emploi
New Frontiers of the Employment Relationship
Guest-edited by Martine D’Amours, Yanick Noiseux, Christian Papinot and Guylaine Vallée
The article proposes a framework for the interpretation of employment relationship transformations in a context of globalization through the notion of the “Employment Grey Zone”. The notion of the employment grey zone (EGZ), originally coined by the French legal scholar A. Supiot to characterize the convergence between the “states of subordination” of employees and independent contractors, is revisited and analyzed within the broader framework of an “employment relationship with a third party”. This case in point refers to a context of production internationalization where the employer-employee relationship is not just face-to-face, but includes several stakeholders that play a role in structuring and managing this relationship. The proposed definition of the EGZ does not merely point to an institutional flaw in the rule of law, but considers that any “gap with the norm” has become the rule and not the exception. The EGZ is defined here as a “public space”, understood as an area of deliberation where interests and power relations are coordinated and confronted: the result is the formation of a hybrid order of regulation, one which is at once public and private, formal and informal. The notion is a useful tool for perceiving the transformation of employment relationships through a new prism. The example of Uber shows how the issue of employment relating to its drivers cannot be exclusively reduced to the standard juridical paradigm, which would limit the debate to defining them as either employees or independent contractors. The diversity and, also, the fragility of court rulings, their partial and repeatedly provisional character, suggests that the socio-professional situation of the drivers is not only “undecidable” in legal terms. The action of states and other territorial governing bodies, as well as that of civil society, must be taken into account in order to comprehend the system of regulation of the employment relationship.
The nature of work arrangements in the film industry and the professional characteristics of cultural workers involved in film production impact the legal qualification of these workers. They highlight the difficult task of classifying actual work arrangements in one specific legal category: either an “employment relationship” or a “contract for services relationship”. If adequate legal frameworks are not in place to capture the reality of those work arrangements properly, the legal qualification may lead to uncertainty detrimental to workers’ access to collective representation. This uncertainty opens the door to work conflicts and contestations of different types. This paper builds a dialogue between two disciplines, legal analysis and cultural labour analysis, by comparing two locally embedded case studies: the “Hobbit Law” in New Zealand and the “Spiderwick Case” in Quebec (Canada).Firstly, we outline our theoretical and methodological approach, drawing on literature on cultural labour studies as well as legal analysis. Secondly, we compare the legal status of cultural workers and collective representation within each of our cases. Thirdly, we present full accounts of the chronology, conflicts and contestations within our two cases, as well as outlining the legislative outcomes in each. And finally, in comparing these cases, we illustrate the difficulty of legally qualifying these relations, the uncertainty this engenders and the differing impacts these difficulties have had on collective action in each industry. We emphasize that each case, with their vastly differing outcomes, provides evidence of both the inclusion of cultural workers within the boundaries of specific legislation fostering collective representation of artists (in the Spiderwick Case) and the exclusion of cultural workers from the boundaries of labour legislation enabling collective representation of employees (in the Hobbit Case). This is telling because these cases both took place in a location attracting Hollywood’s productions and, for both, this power of attraction remains crucial for the local industry. Understanding the impact of local cultural work regulation in the context of major global productions still lacks sustained attention and in this paper, we build a dialogue between our two cases to begin to remedy this.
The franchise contract allows franchisees to benefit from franchisors’ knowledge in return for their financial investment. However, the franchise contract entails much more than the simple transmission of a recipe. It involves thorough assistance from the franchisor to the franchisee. Hence, could this contractual relationship be compared to the employment relationship ?This article will examine how the franchise relationship is molded by both the legal subordination induced by the franchise contract and the superior economic power of the franchisor. This article will rely on a socio-legal analysis of Quebec jurisprudence (1994-2016), and on economic theory, in order to understand the factors of subordination and of economic power incorporated in the franchise relationship.The analysis exposes how the franchise relationship comprises strong components of subordination and inequality of economic power for the franchisee, both of which are as real as in the employment relationship, even though they are not formally instituted by the franchise contract. Three solutions are considered. One of these solutions would be to allow the characterization of a franchise contract into an employment contract. Although some foreign jurisdictions have followed this path, Quebec’s jurisprudence is not inclined to do so. A second solution would be to enact protective legislation for franchisees in order to decrease the informational asymmetry between franchisor and franchisee, and to specify the qualities of the franchise concept. A last solution would entail the recognition of the economic inequality between the franchisor and the franchisee. Such a solution could mark a departure point for a more general legal framework of «dependent economic relationship law» capable of understanding the numerous relationships of entrepreneurial dependency that exist, of which the franchise relationship is but one example.
Outsourcing, which entails the indirect integration of work into the organization of production and services, poses significant challenges for workers’ collective representation. This is because the relevant labour law is premised on a completely different organizational model. To gain insight into these challenges, three case studies were conducted on collective representation in the context of outsourcing of public homecare services in Quebec during the 2003-2013 period. The workers involved—for the most part women—held precarious jobs in three types of private service providers integrated into local networks of services: social economy domestic help enterprises (EESAD), users of the Service Employment Paycheque plan (SEP) and employment agencies. We examined whether these workers are represented collectively and which social actors are involved. We also investigated whether these practices are confined within the boundaries of the entity identified as the employer in the legal sense or whether they are “reticular”, extending solidarity to the sphere of strategic power (Appay, 1997) exercised by the public authorities in the networks.Our results show that there is no reticular collective representation in these local networks of services where the gendered devaluation of work, partly overcome in the public sector, is back with a vengeance. Employees in 15% of EESADs are unionized but the union representation practices only focus on the legally recognized employer, the EESADs. In the employment agencies integrated into these local networks, no form of collective representation exists, nor does such representation exist in the case of the SEP. However, collective action targeting the public authorities involving working conditions under the SEP has had some one-off success. Driven by a coalition of local associations representing people living with disabilities, it paves the way for the idea of employee-user alliances around service and job quality.
In South Korea, many struggles of non-regular workers, who attempted to organize their unions and engage in militant action to protest against employers’ inhumane discrimination and illegal exclusion, have failed to achieve the desired outcomes, due to their vulnerable employment status and their lack of action resources. In this light, our study examines the conditions that lead to victory in precarious workers’ struggles, by focusing on three attributes: internal solidarity with regular workers, external solidarity from labour and civil society groups outside the workplace, and mobilized protest repertoires. Specifically, this study seeks to identify the configurations of these three conditions that produce successful outcomes in precarious workers’ struggles, in terms of bargaining gains and organizational sustainability. We do this by employing fs/QCA modelling to examine 30 major cases of non-regular worker struggles occurring over a 16-year period from 1998 to 2013.Our analysis presents the finding that the conditional configuration of strong external solidarity, strong internal solidarity, and fewer struggle repertoires constitutes a significant causal path to successful outcomes. This reaffirms the idea that strong solidarity bridging, whether with regular workers that have a different employment status in the segmented workplace, or with labour and civil society groups outside the workplace, is the crucial causal condition for precarious workers to achieve their desired outcomes from struggle. An unexpected finding, however, is that when precarious worker struggles mobilize fewer struggle repertoires, they are likely to achieve the successful outcomes of bargaining and organizational gains. Our study contributes to the theoretical elaboration of labour movement revitalization for the precariat class, by shedding light on the activism of precarious workers, considering that the English-language literature that pays attention to the active role of such atypical workers in staging protests against employers’ inhumane treatments and the neoliberal labour regime is limited.
This article presents a case of mobilization against the systemic discrimination of care workers, the great majority of whom are woman, black and Haitian, and who occupy jobs with degraded standards in employment agencies that supply workers to one sole parapublic organization. At the intersection of the ongoing changes in workforce management and the reorganization of care management, this case is representative of how the boundaries of the employment relationship are presently being redrawn. As the mobilized workers are unionized, the case also allows us to explore a range of union attitudes.A trade union strategy predominates: it consists of defending or managing collective bargaining. It is comforted by a set of institutions that produce contradictory constructs of equality issues and the problem of discrimination. If these institutional arrangements breach employers’ «innovations» and support the adoption of trade union strategies aimed at preserving the bilateral employment relationship, this paper argues that this strategy is also symptomatic of the monistic view with which trade unions approach the erosion of the dominant model of the employment relationship, reducing it to conflicts of interest between employers and workers. However, this erosion is also the result of the mutual and reciprocal reorganization of the different social forms of the division of labour between classes, sexes and races. By not calling into question what constitutes the basis of the compromise of the wage society, namely the reduction or exclusion of groups of the population from the standard of full-time and permanent employment, trade unions give priority to strategies which contribute, as illustrated by the case chosen, if not to the creation of discriminatory standards, at least to the legitimization of borders between those who have access to quality jobs and those who do not.
This paper seeks to capture how unions are perceived by young workers in Portugal
and to identify different types of perceptions. Our analysis considers both structural
factors and subjective experiences and is based on semi-structured interviews with young
people working in sectors with a high concentration of youth employment. The fact that young
workers are increasingly exposed to the pressures of unemployment and precarious work might
suggest that there is homogeneity in their perceptions about trade unions and collective
action. However, our results show that young workers’ perceptions are not homogenous and
that they interconnect with distinct segments, characterized by different socio-economic
conditions, as defined by family status, education level and position in the labour market.
Three types of perceptions were identified by content analysis of the interviews: positive,
negative and critical perceptions. A final segment of younger and less-skilled workers, of
families with low educational and economic resources and having left school prematurely,
have neither information nor any understanding about unions.
Our findings support the thesis that diversity of educational and early labour
market experiences, which characterize transition processes to adulthood, shape the relation
between young workers and unions, in particular the motivation to join unions. Capturing the
diversity of young workers experiences and perceptions is a challenge to industrial
relations research, as well as to trade unionism. It can provide unions with important
insights into how to adapt their strategies to recruit new young members and to mobilize the
latent interests of young workers in collective action.