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Confronting the Norm: Gender and the International Regulation of Precarious Work

PART FOUR: Limiting Precarious Work?  Alternative Approaches

The pattern of deviation from the standard employment relationship in Australia and Canada and the character of its erosion in the United States highlight the complexities surrounding the international regulation of precarious work.  They point, in particular, to the implications – especially the gender implications – of adopting the standard employment relationship as a baseline for regulation.  This section concludes this study by sketching alternative approaches to regulating labour and social protection.  It begins by advancing a typology of approaches defined by two intersecting continua – a continuum of approaches to extending labour and social protection and a continuum of different configurations of the gender contract.  It then uses this typology to classify Australia, Canada, and the United States, to identify two competing prototypes for constructing ‘new' employment norms, and, finally, to locate the ILC model.

I.  A Typology of Approaches

Approaches to regulating labour and social protection may be conceptualized by developing a typology with two axes. 

The first axis aims to capture mechanisms governing labour and social protection as they intersect with social norms.  Depicted horizontally in Figure 33, it distinguishes between approaches based on the employment relationship at one pole and the life-course at the other pole.  The employment relationship approach organizes labour and social protection around the standard employment relationship.  Under this approach, comprehensive social benefits and statutory entitlements are accrued not only on the basis of participation in employment but especially full-time permanent employment, where the worker has one employer, works on the employer's premises under his or her direct supervision, normally in a unionized sector.

At the opposite pole, the life-course approach adopts a vision of publicly provided labour and social protection inclusive of all people, regardless of their labour force status, from birth to death, in periods of training, employment, self-employment, and work outside the labour force, including voluntary work and unpaid care-giving for people (Supiot 2001).  It is concerned with spreading social risks and is thus attentive to transitions in the lifecycle, such as movements from paid employment to retirement and from school-to-work; it also values civic engagement (Gazier 2002; Schmid 2002).  The assumption here is that every worker, over the course of his or her lifecycle, should have access, as needed, to reductions in working hours while retaining access to comprehensive labour and social protections as well as publicly funded and administered income supports and, at the same time, the maintenance of regular hours in key periods (Applebaum 2002b, 142).  The life-course approach conceives of working hour adjustments in a flexible manner, to accommodate shorter working-hours in periods of weak demand, ongoing voluntary community activities, periodic skills-upgrading, and phased-in retirement as well as extended leaves, such as maternity and parental leave. 

The intersecting continuum delineating the gender contract, and depicted vertically in Figure 33, aims to reflect the material as well as the normative bases around which sex/gender divisions of paid and unpaid work operate institutionally as well as socially.  It is defined by an unequal work/ undervalued care gender contract at one pole and a “shared work/valued care” (Applebaum 2002b) gender contract – or the universal caregiver model (Fraser 1997) – at the other pole.  The unequal work/ undervalued care gender contract places a high premium on labour force participation.  The male-breadwinner/ female caregiver model is one version of this gender contract as it assumes a primary male-breadwinner with access to a standard employment relationship and a female caregiver principally performing unpaid work, which is often undervalued, and receiving social protection indirectly via her spouse.  Yet there are other variations of this combination where dual-earning is assumed while care-giving is virtually ignored, perpetuating defacto (and highly marginalized) female caregiver norms.

 The shared work/valued care contract occupying the opposite end of this continuum aims, in contrast, to reshape the behaviours, goals, and values of men and women and the social norms that they engender by limiting employers' ability to make demands on employees and by rewarding care, learning, and civic participation.  As Applebaum (2002a, 95) conceives of it, shared work encompasses a fairer distribution of paid work among people through the type of shorter work weeks, limits to overtime, graduated benefits for part-time workers (others also propose more extensive benefit contributions for full-time workers working overtime as a means of limiting excessive hours; see for e.g.:  Jacobs and Gerson 2004), flexible scheduling, and job sharing associated with “family-friendly” working time reforms (see also: Campbell 2002; Rosenfeld 2001).  One of its central aims is to improve access to the labour force for those (mainly women) who conventionally bear the responsibility for children and other dependent family members.  Another is to foster a more equal distribution of unpaid work between the sexes within and outside households, especially domestic labour and the care of children, and other socially necessary unpaid work between households and communities.  The flipside of this contract is valued care, which is linked, on the one hand, to giving people greater control over their time and, on the other hand, to improving care-giving as well as the terms and conditions of those who provide it (both paid and unpaid).  For some, valued care entails enabling people to “negotiate the flexibility they need to meet their individual responsibilities” (Applebaum 2002a, 95, emphasis added; see also Jacobs and Gerson 1998).  However, it is used here to convey both increased social responsibility for care (Eichler 1997) and an expansion of the public provision of services for those requiring care and the attendant commitment to improving the quality and quantity of employment in the public sector for care-providers similar to the situations common in countries such as Denmark (Esping-Anderson 2002, 120; Jackson forthcoming) and Sweden (Anxo 2002, 102, 104). 

A range of possible approaches to labour and social protection, linked to various configurations of the gender contract, fall within this typology.  One configuration – the most familiar – brings together a male breadwinner/female caregiver contract and an approach to labour and social protection pivoting narrowly on the standard employment relationship.  This configuration dominated in the post-World War II era, especially in liberal industrialized countries – and it is reminiscent of an approach fostered by international labour regulation well into the 1970s.  Alternatively, a country or grouping of countries may remain attached to the employment relationship as the foundation for labour and social protection yet adopt policies directed at recognizing and valuing care, as well as sharing work and distributing income more equitably.  There may also be alternative visions combining a life-course approach to labour and social protection, tying social benefits and statutory entitlements to people and communities rather than the employment relationship, with a shared work/valued care gender contract.  A final variation might involve the application of a life-course approach in a dualistic fashion that leaves a male breadwinner/female care-giver gender contract intact.  This variation would enable young and single men and women and (especially male) labour force participants approaching retirement to make transitions smoothly yet, at the same time, leave intact unequal gendered divisions of paid and unpaid work by neglecting to acknowledge the socially necessary work of care giving in the design of labour and social protection, with severe consequences for women in households where children and others requiring care are present. 

Figure 33:

Regulating Labour and Social Protection - A Typology of Alternative Approaches

A. Locating Australia, Canada, and the United States

Approaches to regulation in Australia, Canada, and the United States occupy distinct locations within this typology.

The scale of time-based deviation from the standard employment relationship and the precarious and gendered character of the most dominant form of part-time employment places Australia in the bottom right-hand quadrant of the typology of approaches.  Part-time work is highly prevalent in this context, much more so than in Canada and the United States, and part-time ongoing casual employment, a grouping populated principally by women, is sizeable.  Consequently, many women, especially women with young children, are unable to accrue entitlements to income security such as sick leave, annual leave, severance pay, maternity leave and, in many cases, protection against unfair dismissal (O'Donnell 2004; Owens 2001).  In Australia, the policy direction gaining most prominence – and offering greatest promise for limiting precarious work – involves fostering the growth of permanent part-time employment through measures ranging from conversion for part-time ongoing casuals to interventions compensating this group of workers more fully for their precarious situation and providing greater access to protections such as parental leave to more people (Buchanan and Thornthwaite 2001; Junor 1998; Pocock et al 2004).  While it sheds protective relics of an older order, this modified approach to labour and social protection still rests on a gendered version of the standard employment relationship, one where conventional definitions of normal hours are adjusted to bring more women into the labour force while retaining a male employment norm.  Strong male breadwinner and female caregiver norms prevail in Australia, more than in Canada and the United States; accompanying adjustments in the gender contract centre on preserving men's socially prescribed roles as primary breadwinners while cultivating a shorter-hours employment norm for women. 

In contrast to Australia, Canada sits somewhat closer to the life-course end of the labour and social protection continuum.  Broadly, Canada's location on this axis relates partly to its somewhat superior maternity and parental leave policies, especially for those eligible for paid leaves under Employment Insurance (still mainly employees with a considerable number of accumulated hours), although its policies compare very poorly to most European countries (Kamerman 2000; Fudge and Vosko 2003).  The recommendation by the Prime Minister's Task Force on Women Entrepreneurs to extend parental and maternity leave entitlements to self-employed workers reflects this orientation.  And it attests to the greater social openness in Canada to displacing the male-breadwinner/female caregiver gender contract in an attempt to move towards shared work and, to a lesser degree, valued care, evidenced by the commitment among statisticians and policy-makers to measure unpaid work and value it in key policy areas (e.g., pensions, care-giving for people with disabilities) (Bakker 1998; Luxton and Vosko 1998; Towson 1997; Zukewich 2003).  Still, as the preceding portrait of self-employment illustrates, Canada's focus on limiting disguised self-employment, rather than extending comprehensive labour and social protections to all self-employed workers, places it at the employment relationship end of labour and social protection axis.  And its placement along the gender contract continuum reflects escalating tensions in public policy: in the absence of sufficient support for care-giving, both greater supports for care via the public sector and state policies and union and employer practices that foster and value shared care-giving, Canada's emphasis on promoting entrepreneurship among women positions it at a mid-point on this axis.

Among the three countries, the United States is situated at the farthest point on the employment relationship end of the labour and social protection continuum – given the size and character of full-time employment and the policy emphasis on employment as the primary route to economic security and social value.  And it is positioned closest to Australia on the gender contract continuum.  However, the practical situations in these two countries are qualitatively distinct: in contrast to the bifurcation evident in men's and women's patterns of labour force participation in Australia, full-time permanent employment is increasingly common among American women as well as men.  At the same time, its dominance has not displaced traditional female care-giving norms since it encourages all workers to behave as though they have no responsibilities outside the labour force.  The consequences of this situation are far-reaching, as Eileen Applebaum (2002a, 94) contends:

Since most US households now have every available adult engaged in paid employment, and most married couples – even those with young children – are dual earners, there are great stresses.  These are borne disproportionately by women, who – in a holdover from the male breadwinner and female homemaker model – still have the main responsibility for domestic homemaking and child and elder care. 

The Family Medical Leave Act signifies a major improvement in the United States but men and women employees have relatively limited access to these leaves, especially those that are part-time and/or temporary and those that work in small firms (Kamerman 2000).  Leaves are also unpaid, unless employers subsidize them, and the career penalties for people who take breaks from employment are often great due to the structure of weekly hours and high levels of wage inequality (Lovell and Hartman 2002).

B. Two Competing Prototypes

To decipher current directions in the international regulation of precarious work as well as predict future trends, it is useful to examine two leading prototypes put forward in the United States and Europe respectively.  One prototype is exemplified by the final proposals of the American Dunlop Commission on the Future of Worker-Management Relations (1994b) as well as developments flowing from it in the United States context.  This prototype focuses on reviving an approach to labour and social protection based exclusively on wage-earning.  It envisions an employment norm characterized by a lower set of statutory entitlements and social benefits, as well as less job security, than that associated with the standard employment relationship, and it is silent on gender.  The other prototype arises from proposals to move ‘beyond employment' in the EU, which have particular resonance in member countries such as Germany, the Netherlands, and Sweden.  This approach is more sensitive to the need for changes in the gender contract, although even greater sensitivity is required to confront the male norm of the standard employment relationship.

The first prototype embraces the idea that all adults should be engaged in employment, preferably full-time and ostensibly permanent, and supports maintaining a system of protection tying eligibility to a single job, such as by way of continuous service requirements.  It emphasizes private decision-making in the workplace as a means to furnish benefits ranging from health insurance to vacation pay (Dunlop 1994b, 16; see also Applebaum 2001; Hyde 2000; Piore 2002; Stone 2001).  This prototype does not call for pro-rated social wage benefits for part-time employees.  Rather, it leaves intact longstanding policies permitting employers to treat “part-time employees/workers differently from those with permanent or indefinite relationships with the employer” (Commission on Labor Cooperation 2003, 5).  And it fails to advocate reducing standard full-time weekly hours in order to extend labour and social protection to underemployed part-time workers.  Place-based exclusions are also permissible under this model.  This prototype authorizes the exclusion of several groups of workers, such as domestic workers, whose location of work differs from conventional worksite norms.  However, one important area where subtle changes are proposed relates to establishing employee status – specifically, modifying legal tests conventionally used to determine the scope of labour protection.  Most American laws still use a “common law agency test” that places greatest emphasis on the right of control; however, a few employ an economic realities test (e.g., the federal Fair Labour Standards Act and the Occupational Health and Safety Act), which allows for fuller examination of other factors suggestive of what is often labelled ‘economic dependence,' an approach growing in popularity in international discussions concerned with disguised employment.[76] Quite controversially, the Dunlop Commission (1994, 12) recommended adopting a single definition of employer and a single definition of employee “for all workplace laws based on the economic realities of the employment relationship.”  It endorsed shifting away from the common law agency test towards an economic reality test where chances for profit and risks of loss and capital investment have greater weight.[77]

Despite some subtle proposals for change, however, the Dunlop Commission ultimately took an ambivalent approach to the growth of ‘contingent work,' a development criticized by the Taskforce on the Future of Worker-Management Relations that preceded it.  On the one hand, the Dunlop Commission opposed the introduction of “contingent arrangements… simply to reduce the amount of compensation paid by the firm for the same amount and value of work” (Dunlop 1994b, 61).  Yet, on the other hand, it “affirmed the valuable role contingent work arrangements can play in diversifying the forms of employment relationship available to meet the needs of American workers and companies” (Dunlop 1994b, 62).  Attesting to the gender contract implied by this conception of new employment norms, it also claimed that the “flexibility” that “contingent arrangements” provide “helps some workers, more of whom must balance the demands of family and work as the number of dual-earner and single parent households rise” (Dunlop 1994b, 61).  Under this prototype, the worker whose situation approximates the norm most closely is still assumed to be male.  As Applebaum says: 

Anyone – male or female – can work.  The only requirement is that, as employees, they should conform to the norm of the ideal worker.  An ideal worker is a worker who behaves in the workplace as if he or she has a wife at home full-time, performing all of the unpaid care work that families require.  Personal problems do not belong in the workplace.  Conflicting demands are expected to be resolved in favour of requirements of the job (Applebaum 2001, 29).

The “personal problems” referred to here include care for children and other dependants as well as unpaid training, voluntary work, and work in the public interest.  This philosophy encourages women to be “flexible,” to bear the costs associated with accepting part-time work to accommodate care-giving.  However, even in the post-Dunlop era, leave entitlements in the United States, while they rest on a version of equal treatment, are meagre.  The outcome is a gender contract that embraces dual wage-earning while marginalizing care-giving.

The second prototype – the ‘beyond employment' approach to labour and social protection – differs sharply from the first prototype and its associated gender contract.  And it is considerably more promising as a policy model in confronting the norm.  Originating from Transformation of labour and future of labour law in Europe (European Commission 1998), this prototype embraces a broad concept of work that covers all people “in both periods of inactivity proper and periods of training, employment, self-employment and work outside the labour market,” where “work outside the labour market” includes training at one's own initiative, voluntary work, and care for others (Supiot 2001, 55).  It calls for replacing the paradigm of employment with a paradigm of labour market membership based on the notion of “statut professionel” or the idea that “an individual is a member of the labour force even if he or she does not currently have a job” (Supiot 2001, x).  More consistent with a life-course approach, the idea is to allow for breaks between jobs as well as lifecycle changes, to reject a linear and homogeneous conception of working life tied to the employment contract and, specifically, the relationship of subordination it establishes between the worker and the party to whom services are rendered (Supiot 2001, C.1). 

Rather than treating “regular” part-time employment as a valid variation on the norm and calling for an extension of benefits, the “beyond employment” prototype advocates reducing working time for all people over the course of the lifecycle and for reorganizing production for the market to reflect its different phases.  It embraces “worker-time” to reconcile occupational and personal life, to encourage genuinely work-centred flexibility, and to promote the redistribution of employment (Supiot 2001, 84; see also Fudge and Vosko 2001b).  At the outset of discussions towards what later became the Convention on Part-Time Work, several member countries and worker representatives proposed the type of working time adjustment posed under the ‘beyond employment' prototype but it was rejected almost immediately (ILO 1993a).  However, this type of adjustment resembles more recent developments in Germany and the Netherlands under the influence of the EC Directive on Part-Time Work (1997) that have met with some success. 

The German Act on Part-Time Work and Fixed-Term Contracts (2001) confers a right to all employees (full-time and part-time) with six months continuous service whose employer regularly employs more than fifteen people to reduce work time (Section 8).[78]  The dual objective of this measure is to lessen unemployment and to allow employees (men and women) to fulfil family responsibilities and/or to engage in unpaid voluntary work, training, apprenticeship or educational programs (Berg 2002; Burri, Opitz and Veldman 2003; Jacobs and Schmidt 2001).  The Act also grants part-time employees fulfilling these criteria to extend their working time (Section 9), and compels the employer to “give preference to an interest [in] an extension of working time unless this would conflict with urgent operational reasons or request of other part-time employees” (Berg 2002, 208).  The aim of this measure is to cultivate greater equality between men and women by fostering a better gender balance not only among who works part-time but who works full-time.  Analysts predicted that, together, these two measures may contribute to an increase of the proportion of men working part-time, and thereby prompting more men to take on a greater share of unpaid care giving.  One of the central strengths of this Act is that it covers so-called marginal part-time workers, defined in Germany as those whose monthly income does not exceed certain specified limits (325 Euros in 2002) and/or whose weekly working time is 15 hours or fewer (Berg 2002, 209).  The inclusion of this group under the Act parallels the extension of statutory social security measures to workers in these types of employment relationships, a decision motivated initially by Germany's desire to preserve its ability to continue to fund statutory social security schemes in the face of changing employment relationships that is having the paradoxical effect of safeguarding equal treatment (Berg 2002, 210).

The Working Time Adjustment Act (2000) in the Netherlands is even stronger than its German counterpart.  It grants employees a statutory right to both reduce and extend working time unless an employer can demonstrate that serious business reasons preclude the granting of such a request.[79]  Consequently, since the onus is on the employer to make a case for rejecting a worker's desire to adjust his or her hours, the take-up of these measures has been much more widespread in the Netherlands than in Germany despite the otherwise similar features of legislation in the two countries.  Furthermore, the formal objective of the Dutch Act is to “enhance the possibilities for workers to change their working time according to their needs during different periods in their careers” (Burri, Optiz and Veldman 2003, 322).  In this way, Dutch legislation challenges squarely dominant assumptions of what constitutes regular weekly hours among employees and seeks to transcend them, while German legislation focuses on ensuring that part-time employees are not treated less favourably than comparable full-time workers unless different treatment is justified on objective grounds, language reminiscent of the ILO Convention on Discrimination (Berg 2002, 209). 

Under the ‘beyond employment' prototype, social drawing rights are the proposed solution to the problem of minimum standards that approaches to labour and social protection premised on equal treatment are ill-equipped to address.  These rights are essentially “a new type of social right related to work in general (work in the family sphere, training work, voluntary work, self-employment, working the public interest, etc.)” based on a prior contribution to the labour force, but “brought into effect by the free decision of the individual and not as a result of risk” (Supiot 2001, 56, italics added).  On the question of status, this prototype also casts as central the need for freedom to work under different statuses – from employee to independent contractor status – without forfeiting social rights and entitlements (Supiot 2001, 10).  Adding an important layer to the evolving rationale for collapsing the distinction between employees and self-employed workers, it is concerned less with quantitative changes, such as those documented in discussions on the scope of the employment relationship, than with qualitative changes across the employment relationship.

The vision for the gender contract in ‘beyond employment' requires greater elaboration as well as some expansion.  Early architects of this prototype devoted scant attention to exploring avenues for fostering greater sharing of unpaid care-giving among men and women.  Granted, the effort to move ‘beyond employment' in organizing labour and social protection is attentive to the danger that the emerging social and legal system of production “will be built along strongly biased gender lines, discriminating against women from the standpoint of economic independence and professional careers; and against men with respect to the developments of bonds of affection and family relations” (Supiot 2001, 180).  The ‘beyond employment' prototype rejects a policy direction compelling workers to trade-off precarious conditions for the type of flexibility necessary to engage in unpaid care-giving, volunteer work, training, or other activities in the public interest.  Together, the explicit call for high-quality opportunities for training and employment for men and women and the implied support for placing greater value on care-giving amount to a tacit endorsement of a new gender contract characterized by universal and integrated earning, learning, and care-giving.  However, central design elements of the model are not fully in sync with this philosophical recognition of the importance of gender equity and thereby the endorsement of a shared work/ valued care gender contract.  For example, as they are envisioned, social drawing rights are to be attained on the basis of a prior contribution to the labour force.  This conception highlights an operational limit of this prototype.  The need for respite for unpaid caregivers in households and communities and supports to ease these workers through various lifecycle transitions, including shifts from contributing largely to unpaid work to contributing to the labour force, is well documented.  Although it is challenging to envisage, a model of social drawing rights taking greater account of changes necessary in the gender contract might also allow workers to qualify for social drawing rights on the basis of prior contribution to socially necessary forms of unpaid work or some combination of prior contribution to the labour force and unpaid work. This type of subtle change would better secure the bi-directional pathways that the ‘beyond employment' prototype aims to cultivate.

C. The ILC Model: Between Containing Erosion and ‘Beyond Employment'

The ILC represents an interlocking system of supranational and national labour regulation whose central role is to construct normative principles and frameworks that assist national governments in crafting substantive labour standards.  Thus, the approach to regulating precarious work in the ILC is, perhaps predictably, shaped by tensions between an approach to labour and social protection seeking to move ‘beyond employment,' imagining fluidity in the design of public systems delivering supports to accommodate different phases in the lifecycle, the sharing of work, and the improved valuation of care, and an approach that retains the employment relationship as the fulcrum of labour and social protection, where wage-earning is prescribed for all adults and care-giving is devalued.  In its emphasis on stretching the standard employment relationship, the ILC model responds somewhat to the shape of precarious work in liberal industrialized countries, such as Canada and the United States, although its response is unsatisfactory.  Within the typology, the new constellation of international labour standards aimed at limiting precarious work situate this model further towards a life-course approach along the labour and social protection axis than the Dunlop prototype and marginally closer to the alternative visions of shared work and valued care advanced under the beyond employment prototype.   Still, the norm-driven orientation to equal treatment in the ILC, augmented by the Social Declaration, limits the capacity of this model to respond to the growth of precarious work beginning dating to the mid-1970s as well as deal with gender inequality – whether precarious work takes expression mainly in the form of deviation or predominantly in the form of erosion. 

76. Historically, U.S. courts have used three tests in distinguishing between employees and independent contractors:  the common law agency test and the economic realities test – both noted here – and the hybrid test.  However, the common law agency test operates as the default position.  Unless a statute specifies otherwise, this is the test to be used.  The Commission on Labor Cooperation (2003, 31) offers a concise summary of the list of factors normally, although not exclusively, considered under this test (also called the 13 factor test) which include: “(1) the hiring party’s right to control the manner and means by which the work is accomplished; (2) the skill required; (3) the source of the instrumentalities or tools; (4) the location of work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party’s discretion over when and how long to work; (8) the method of payment; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and, (13) the tax treatment of the hired party (as an employee or a self-employed worker).”

77. This recommendation, however, has not been taken up in the United States, although it resembles the direction of change in Canada.

78. Employers, however, may deny employees this right by invoking ‘business reasons’ and there are few checks to police this provision.  The outcome will ultimately be left to the courts (Burri, Opitz and Veldman 2003, 322).

79. For an in-depth discussion of this Act, see Burri 2001 and Burri forthcoming.