Periodic Reporting for period 2 - WorkOD (Work on Demand: Contracting for Work in a Changing Economy)
Reporting period: 2019-07-01 to 2020-12-31
The Work on Demand project is motivated by an interest, empirical and normative, in the continued viability of systems of labour law that are broadly speaking protective of workers’ interests. Such systems typically aim to ensure a set of at least minimum terms and conditions – minimum wages, maximum working hours, holidays and sick pay, job security etc – and, at a societal level, some measure of wage and income equality. For several decades now, the continued existence of protective labour laws – together with institutions designed to allow for the collective interest representation of workers and collective regulation of working relationships – has been widely understood to be threatened as a result of myriad pressures associated with globalization and deindustrialization. Since the economic crisis of 2008, and consequent ushering in of an age of austerity, the threat has intensified. Across the globe, and especially in parts of Europe, a body of received knowledge regarding labour law and labour markets is being used by national governments and supranational institutions alike to legitimise the lowering of labour standards and the dismantling of collective institutions for the regulation of employment terms and conditions and the resolution of disputes. The purported ‘truth’ about labour markets is that legal rights and labour market institutions constitute undesirable ‘rigidities’ and, as such, barriers to increased employment levels and economic growth. But this truth is not always supported by empirical evidence – countries which weaken their labour laws in a bid to encourage growth do not routinely achieve that aim. A second motivation for the project, then, is the observation that a lack of empirical knowledge and evidence regarding the effects of legislation and other regulatory institutions on working relationships can allow for the emergence of erroneous and potentially harmful understandings of the capacity of law and government to address social and economic problems.
Concern regarding the weakening of labour standards and the dismantling of collective representative and regulatory institutions is widely shared by scholars in the field of labour law. To date, they have reacted with lamentations and protestations aplenty, but have found themselves unable, for the most part, to influence policy debates so as to alter the direction or even the pace of change. Across Europe, and beyond its borders, the discourse has been one of crisis in the discipline: old ways of thinking about the subject, of describing and analysing it, have seemed increasingly inadequate, but new ways have yet to be found.
- Why is it important for society?
At this point in time, the prospects for systems of labour law that are broadly protective of workers’ interests seem particularly bleak. The consequences for individuals and societies as a whole are strongly contested, and remain to be observed and assessed in the medium to long term, but there is already some evidence to suggest that the weakening of labour rights and protections has contributed to a widening of the gap between the wealthiest and the poorest in our societies. Wealth inequalities and economic insecurity have been linked, meanwhile, to resurgent nationalism and the growing popularity of extremist political parties in several European states and elsewhere. The stakes could barely be higher.
- What are the overall objectives?
Seeking to address these concerns, the WorkOD project aims:
i. To develop a new research methodology appropriate to the study of contracting for work understood as an example of private ordering that is shaped directly and indirectly by the complex of applicable legal rules and institutions and by other aspects of the social and economic context.
ii. Through the development of this new research methodology, to identify also a new paradigm for labour law as a field of scholarship.
iii. Using the new research methodology, to explain trends in the field including, in particular, the increased use of forms of contract which are designed to shift the burden of risk from the employer to the worker, including those typical of task- or ‘gig’-based work in the on-demand economy.
iv. In light of the changing nature of contracting for work so explained, to assess the significance of particular laws and labour market institutions as mechanisms for the protection of workers’ interests and the achievement of a variety of public policy goals.
In aiming to develop a new methodology and new paradigm for the field of labour law, the WorkOD project aspires to nothing less than a fundamental transformation of the discipline of labour law across the whole of Europe and beyond. By developing a method for the study of contracting for work – understood as an instance of economic, social and legal behaviour which is influenced in a variety of ways by the institutional context within which it proceeds – the project will develop a new methodology that is relevant, too, to the study of other legal disciplines and fields of social science. It will explain trends in the field of work organisation and working relationships and assess the significance of particular laws and labour market institutions to the achievement of policy goals in a way that is useful to policy-makers as well as scholars. And it will pave the way for future contributions by scholars to policy debates, so that they may influence in positive ways the identification of new and lasting solutions to the problem of the division of responsibilities and risks between workers and those for whom they work.
In the calendar year 2019, the PI published two papers. 'Critical Labour Law: Then and Now' reviews the critical socio-legal tradition in labour law scholarship and identifies the ways in which that tradition is challenged by recent developments in the field of working relations, arguing that a new approach is needed. ‘The Economic Sociology of Labour Law’ sets out the interdisciplinary approach to the study of labour law that the Work on Demand team seek to adopt and develop over the course of the project. In addition, the PI wrote a third paper and had this accepted for publication in one of the leading generalist law journals, the Modern Law Review. ‘Regulating Gigs’ considers the gig economy and particularly its treatment by Jeremias Prassl in a 2018 volume, Humans as a Service (Oxford). Using the lens of the economic sociology of labour law, it argues that gig work requires to be analysed in its particular political-institutional context. Like any kind of working relation, gig work is shaped by social policy widely understood (employment law and policy, workplace regulation and enforcement mechanisms, taxation), and by the social integration and organization of sectoral and occupational workforces. Together with Wolfgang Streeck, the PI wrote a further paper on 'Labour Constitutions and Occupational Communities' which they presented together in December at the Max Planck Institute for Anthropology. The PI also presented her research in Lancaster, Frankfurt, Leicester, Birkbeck, New York and Madrid, and in Amsterdam as part of the lecture series of the Centre for the Study of European Contract Law.
In 2019, the postdoctoral researchers undertook literature reviews and began fieldwork. Gregoris Ioannou, whose project focuses on young, precariously employed hospitality workers, spent several months conducting fieldwork in Greece and the UK. He presented aspects of his research at conferences in Vancouver, Manchester and Dusseldorf, and wrote a paper, since accepted for publication, on the communicative power of trade unionism examining labour law, political opportunity structure and social movement strategy. Additionally Gregoris carried out work on the liberalisation of professions, examining the experience of pharmacies in Greece and Cyprus, and was invited by ETUI to join a new publication project in 2020 on the condition of trade unionism in all EU member states. Alessio Bertolini’s project investigates the ideas and strategies used by different policy actors and stakeholders in the regulation of gig work in the UK and Italy. He completed his fieldwork in the UK in early summer and is currently carrying out equivalent work in Rome. In London, he was a visiting scholar at University College London and in Rome, at Università La Sapienza. In 2019, Alessio participated in international conferences in Valparaiso, Chile, and Dusseldorf. He wrote a paper on union strategies in regulating gig work in the UK. Eleanor Kirk’s project concerns the legal consciousness and ideological practices of the HR profession. In 2019 she conducted interviews, data analysis and desk research, presented her work at international conferences in Berlin and Vienna, and gave invited talks in Leeds, Newcastle, London and Manchester. Eleanor was nominated for the Sage Prize for Innovation and Excellence in Sociology. She joined the executive board of the British Universities Industrial Relations Association, and the editorial board of Work, Employment and Society. She wrote a review article of Hertogh’s (2018) Nobody’s Law, and a draft article on juridification and laypeople’s interactions with labour law.
Throughout 2019, the group held weekly or fortnightly meetings, sometimes inviting other academics from the University of Glasgow or elsewhere to join them. For different but unavoidable reasons, the studies of the two phd students had to be discontinued in February and April 2019.
In the first half of the calendar year 2020, a new phd student joined the group, Ou Lin from China who plans to study instances of resistance among gig economy delivery couriers in Beijing and Shanghai. The PI worked on two new papers: 'From Industrial Citizenship to Private Ordering? Contract, Status and the Question of Consent' with Wolfgang Streeck and 'Law, Economy, and Legal Consciousness at Work' with Eleanor Kirk. She presented the research at a meeting of the London Labour Law Discussion Group in January and at the University of Kent in February. The postdoctoral researchers completed their fieldwork and began to analyse their data and write up the findings. Alessio Bertolini submitted a paper on the unions' role in representing gig workers to the Industrial Relations Journal and began work on a second paper on the comparative political economy of gig work regulation. Eleanor Kirk submitted her review article to the Industrial Law Journal and, with the PI, wrote a book chapter on labour law and industrial relations and an article, mentioned above. Gregoris Ioannou received all the transcripts of the selected interviews he conducted in 2019 and began to process the data, taking notes and identifying the themes with a view to writing two papers for publication. He wrote two draft reports concerning the fieldwork in Greece and the fieldwork in the UK. Together, the group organised two research events: a workshop to take place in July 2020 and a conference, originally scheduled to take place in September 2020, but postponed until June 2020.
Main Results Achieved:
(i) Considerable progress has been made to date in fulfillment of the primary research objective of WorkOD, namely: the development of a new research methodology appropriate to the study of contracting for work understood as an example of private ordering that is shaped directly and indirectly by the complex of applicable legal rules and institutions and by other aspects of the social and economic context. See:
- R Dukes, 'Critical Labour Law: Then and Now' in E Christodoulidis, R Dukes and M Goldoni (eds), Research Handbook on Critical Legal Theory (Edward Elgar 2019)
- R Dukes, 'The Economic Sociology of Labour Law' (2019) 46(3) Journal of Law and Society 396-422
- R Dukes and W Streeck, 'Labour Constitutions and Occupational Communities: Social Norms and Legal Norms at Work' (2020) Journal of Law and Society, forthcoming
- R Dukes and E Kirk, 'Law, Economy and Legal Consciousness at Work' working paper
- R Dukes and E Kirk, 'Industrial Relations and Labour Law: Recovery of a Shared Tradition' working paper
- E Kirk, 'Review Article: Legal Consciousness and the Sociology of Labour Law', under review
- E Kirk, 'Laypeople and legal consciousness at work: ‘juridification’ revisited', working paper
(ii) Progress has also been made in fulfillment of the second research objective, the identification of a new paradigm for labour law as a field of scholarship. See:
- R Dukes and W Streeck, 'From Industrial Citizenship to Private Ordering? Contract, Status and the Question of Consent' working paper
(ii) First steps were made towards explaining trends in the field including, in particular, the increased use of forms of contract which are designed to shift the burden of risk from the employer to the worker, including those typical of task- or ‘gig’-based work in the on-demand economy. See:
- R Dukes 'Regulating Gigs' (2020) 83(1) Modern Law Review 217-228
- A Bertolini, 'No More Going Solo? Trade Union Representation of Gig Workers in the UK', under review
(iv) First steps were made towards fulfillment of the final objective, employing an economic sociology of law approach to assess the significance of particular laws and labour market institutions as mechanisms for the protection of workers’ interests and the achievement of a variety of public policy goals. See:
- G Ioannou, 'The Communicative Power of Trade Unionism: Labour Law, Political Opportunity Structure and Social Movement Strategy' (2020) Industrielle Beiehungen, forthcoming
- G Ioannou, 'The Changing Context of Employment Relations since the Economic Crisis: Spain in a Comparative South European Perspective', working paper
- A Bertolini, 'The Political Economy of the Platform Economy in Italy and the UK', working paper
- E Kirk and G Gall, 'The displacement and dissipation of conflict at work: a three-dimensional view', working paper
Several of the papers written by members of the WorkOD group build on this 2019 publication. 'Labour Constitutions and Occupational Communities: Social Norms and Legal Norms at Work', co-authored by the PI together with Wolfgang Streeck, develops the comparison drawn between Hugo Sinzheimer's and Max Weber's respective notions of the labour constitution and relates this concept to the Seymour Martin Lipset's seminal studies of occupational communities. The central argument is that the regulation of work should return to its procedural core through a process that transforms social behaviour into collective interests to create legal norms which are capable of taking account of all aspects of life (“work and non-work”) to produce a fair and reflective system of labour law. In developing the idea of the occupational community in this context, the paper draws on 16 existing ethnographies supplemented by a further group of studies. The findings are used to inform an original alternative regulatory approach. The authors translate their findings into practical steps which could be used to reinvigorate labour law’s public function by adapting existing provisions for contemporary work arrangements and engendering an appropriate normative regulatory system based on collective action.
The two working papers co-authored by Dukes and Kirk and the review article by Kirk each further develop the proposed 'economic sociology of law' by considering the usefulness to such an approach of the study of actors' legal consciousness.
The 2020 working paper authored by the PI and Wolfgang Streeck, 'From Industrial Citizenship to Private Ordering? Contract Status and the Question of Consent' advances beyond the state of the art by developing historical understandings of key concepts in the fields of sociology, industrial relations and labour law, namely 'contract' and 'status'. This paper addresses the second objective of the WorkOD project and is concerned with the question of justice in today's 'post-industrial' world. The co-authors plan to develop this line of research further during the course of 2020 and 2021.