Temporary Work, Agencies, and Unfree Labor. 9781136278488, 1136278486

Table of contents :
Cover
Title
Copyright
Dedication
Contents
List of Figures and Tables
Acknowledgments
1 Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work
2 Selling Flexibility: Temporary Staffing in a Volatile Economy
3 Power Politics and Precariousness: The Regulation of Temporary Agency Work in the European Union
4 Placing Filipino Caregivers in Canadian Homes: Regulating Transnational Employment Agencies in British Columbia
5 The Creation of Distinctive National Temporary Staffing Markets. 6 The Persistence of Unfree Labour: The Rise of Temporary Employment Agencies in South Africa and Namibia7 Temporary Work in China: Precarity in an Emerging Labour Market
8 Unfree Labour and the Regulation of Temporary Agency Work in the UK
9 Leased Labour and the Erosion of Workers' Protection: The Boundaries of the Regulation of Temporary Employment Agencies in Québec
Contributors
Index.

Citation preview

Social Regionalism in the Global Economy Adelle Blackett and Christian Lévesque Unions and Globalization Governments, Management, and the State at Work Peter Fairbrother, John O’Brien, Anne Junor, Michael O’Donnell and Glynne Williams Privatization of Public Services Impacts for Employment, Working Conditions, and Service Quality in Europe Edited by Christoph Hermann and Jörg Flecker

Temporary Work, Agencies and Unfree Labour

Industrial Relations in Education Transforming the School Workforce Bob Carter, Howard Stevenson and Rowena Passy

Edited by Judy Fudge and Kendra Strauss

ROUTLEDGE STUDIES IN EMPLOYMENT AND WORK RELATIONS IN CONTEXT

ROUTLEDGE STUDIES IN EMPLOYMENT AND WORK RELATIONS IN CONTEXT

Rediscovering Collective Bargaining Australia’s Fair Work Act in International Perspective Edited by Breen Creighton and Anthony Forsyth Transnational Trade Unionism Building Union Power Peter Fairbrother, Marc-Antonin Hennebert, and Christian Lévesque Temporary Work, Agencies and Unfree Labour Insecurity in the New World of Work Edited by Judy Fudge and Kendra Strauss

Temporary Work, Agencies and Unfree Labour Insecurity in the New World of Work Edited by Judy Fudge and Kendra Strauss

www.routledge.com

Temporary Work, Agencies and Unfree Labour

Unfree labour has not disappeared from advanced capitalist economies. In this sense the debates among and between Marxist and orthodox economic historians about the incompatibility of capitalism and unfree labour are moot: the International Labour Organisation has identified forced, coerced and unfree labour as a contemporary issue of global concern. Previously hidden forms of unfree labour have emerged in parallel with several other well-documented trends affecting labour conditions, rights and modes of regulation. These evolving types of unfree labour include the increasing normalization of contingent work (and, by extension, the undermining of the standard contract of employment) and an increase in labour intermediation. The normative, political and numerical rise of temporary employment agencies in many countries in the last three decades is indicative of these trends. It is in the context of this rapidly changing landscape that this book consolidates and expands on research designed to understand new institutions for work in the global era. This edited collection provides a theoretical and empirical exploration of the links between unfree labour, intermediation and modes of regulation, with particular focus on the evolving institutional forms and political-economic contexts that have been implicated in, and shaped by, the ascendency of temp agencies. What is distinctive about this collection is this bifocal lens: it makes a substantial theoretical contribution by linking disparate literatures on, and debates about, the coevolution of contingent work and unfree labour, new forms of labour intermediation and different regulatory approaches, but it further lays the foundation for this theory in a series of empirically rich and geographically diverse case studies. This integrative approach is grounded in a cross-national comparative framework, using this approach as the basis for assessing how, and to what extent, temporary agency work can be considered unfree wage labour Kendra Strauss is Lecturer in Human Geography and Fellow of Robinson College, University of Cambridge. She is a feminist economic geographer with interests in labour market change, feminist political economy and geographies of risk and welfare. Judy Fudge is the Lansdowne Chair in Law at the University of Victoria, Canada.

Routledge Studies in Employment and Work Relations in Context Edited by Tony Elger and Peter Fairbrother The aim of the Employment and Work Relations in Context Series is to address questions relating to the evolving patterns and politics of work, employment, management and industrial relations. There is a concern to trace out the ways in which wider policy-making, especially by national governments and transnational corporations, impinges upon specific workplaces, occupations, labour markets, localities and regions. This invites attention to developments at an international level, marking out patterns of globalization, state policy and practices in the context of globalization and the impact of these processes on labour. A particular feature of the series is the consideration of forms of worker and citizen organization and mobilization. The studies address major analytical and policy issues through case study and comparative research.

1 Employment Relations in the Health Service The Management of Reforms Stephen Bach

6 Social Regionalism in the Global Economy Adelle Blackett and Christian Lévesque

2 Globalisation,State and Labour Edited by Peter Fairbrother and Al Rainnie

7 Unions and Globalization Governments, Management, and the State at Work Peter Fairbrother, John O’Brien, Anne Junor, Michael O’Donnell and Glynne Williams

3 Sexualities, Work and Organizations Stories by Gay Men and Women in the Workplace at the Beginning of the 21st Century James Ward 4 Vocational Training International Perspectives Edited by Gerhard Bosch and Jean Charest 5 Industrial Relations in Education Transforming the School Workforce Bob Carter, Howard Stevenson and Rowena Passy

8 Privatization of Public Services Impacts for Employment, Working Conditions, and Service Quality in Europe Edited by Christoph Hermann and Jörg Flecker 9 Rediscovering Collective Bargaining Australia’s Fair Work Act in International Perspective Edited by Breen Creighton and Anthony Forsyth

10 Transnational Trade Unionism Building Union Power Peter Fairbrother, Marc-Antonin Hennebert, and Christian Lévesque

11 Temporary Work, Agencies and Unfree Labour Insecurity in the New World of Work Edited by Judy Fudge and Kendra Strauss

Previous titles to appear in Routledge Studies in Employment and Work Relations in Context include:

Work, Locality and the Rhythms of Capital The Labour Process Reconsidered Jamie Gough Trade Unions in Renewal A Comparative Study Edited by Peter Fairbrother and Charlotte Yates Reshaping the North American Automobile Industry Restructuring, Corporatism and Union Democracy in Mexico John P. Tuman Work and Employment in the High Performance Workplace Edited by Gregor Murray, Jacques Belanger, Anthony Giles and PaulAndre Lapointe Trade Unions and Global Governance The Debate on a Social Clause Gerda van Roozendaal Changing Prospects for Trade Unionism Edited by Peter Fairbrother and Gerard Griffin

Trade Unions at the Crossroads Peter Fairbrother Between Market, State and Kibbutz The Management and Transformation of Socialist Industry Christopher Warhurst Globalization and Patterns of Labour Resistance Edited by Jeremy Waddington The State and “Globalization” Comparative Studies of Labour and Capital in National Economies Edited by Martin Upchurch State Regulation and the Politics of Public Service The Case of the Water Industry Graham Taylor Global Humanization Studies in the Manufacture of Labour Edited by Michael Neary Women, Work and Trade Unions Anne Munro

Unionization and Union Leadership The Road Haulage Industry’ Paul Smith

The Global Economy, National States and the Regulation of Labour Edited by Paul Edwards and Tony Elgar

Restructuring the Service Industries Management Reform and Workplace Relations in the UK Service Sector Gavin Poynter

History of Work and Labour Relations in the Royal Dockyards Edited by Ann Day and Kenneth Lunn

Japanese Management Techniques and British Workers Andy Danford Young People in the Workplace Job, Union and Mobility Patterns Christina Cregan Globalization, Social Movements and the New Internationalisms Peter Waterman

Young Adult Women, Work and Family Living a Contradiction Ian Procter and Maureen Padfield The Sociology of Industrial Injury Theo Nichols Global Tourism and Informal Labour Relations The Small Scale Syndrome at Work Godfrey Baldacchino

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Temporary Work, Agencies and Unfree Labour Insecurity in the New World of Work Edited by Judy Fudge and Kendra Strauss

First published 2014 by Routledge 711 Third Avenue, New York, NY 10017 Simultaneously published in the UK by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Taylor & Francis The right of the editors to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Temporary work, agencies and unfree labour : insecurity in the new world of work / edited by Judy Fudge and Kendra Strauss. pages cm. — (Routledge studies in employment and work relations in context ; 11) Includes bibliographical references and index. 1. Temporary employment. 2. Employment agencies. 3. Labor market. 4. Job security. I. Fudge, Judy editor of compilation. II. Strauss, Kendra, 1975– editor of compilation. HD5854.T46 2013 331.25'729—dc23 2013004537 ISBN: 978-0-415-53650-9 (hbk) ISBN: 978-0-203-11139-0 (ebk) Typeset in Sabon by Apex CoVantage, LLC

To workers everywhere who challenge the constraints on their freedom.

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Contents

List of Figures and Tables Acknowledgments 1

Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work

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1

KENDRA STRAUSS AND JUDY FUDGE

2

Selling Flexibility: Temporary Staffing in a Volatile Economy

26

NIK THEODORE AND JAMIE PECK

3

Power Politics and Precariousness: The Regulation of Temporary Agency Work in the European Union

48

MICHAEL WYNN

4

Placing Filipino Caregivers in Canadian Homes: Regulating Transnational Employment Agencies in British Columbia

70

JUDY FUDGE AND DANIEL PARROTT

5

The Creation of Distinctive National Temporary Staffing Markets

94

NEIL M. COE AND KEVIN WARD

6

The Persistence of Unfree Labour: The Rise of Temporary Employment Agencies in South Africa and Namibia

118

PAUL BENJAMIN

7

Temporary Work in China: Precarity in an Emerging Labour Market FENG XU

143

xii 8

Contents Unfree Labour and the Regulation of Temporary Agency Work in the UK

164

KENDRA STRAUSS

9

Leased Labour and the Erosion of Workers’ Protection: The Boundaries of the Regulation of Temporary Employment Agencies in Québec

184

STÉPHANIE BERNSTEIN AND GUYLAINE VALLÉE

Contributors Index

207 209

Figures and Tables

Figures 1.1 The Labour Market Continuum 2.2 TSI Monthly Employment Across the Business Cycle, 1990–2012 4.3 Percentage of Filipino Citizens Recruited “Offshore” 5.4 Number of Overseas Affiliates of Top 20 Firms Present, 1998–2008 5.5 The Constitution of National Temporary Staffing Markets Tables 2.1 Average Hourly Wages of the Top 20 Occupations in the Temporary Staffing Industry, May 2004 2.2 Changes in Temporary and Total Employment Over Six Recessions and Recoveries 4.3 Total Number of LCP Caregivers Entering BC (total and by gender) 4.4 Female LCP Caregivers Entering BC by Citizenship 4.5 Female LCP Caregivers Entering BC by Country of Last Permanent Residence 5.6 Top Twenty Transnational Staffing Firms, 2011 5.7 Types of Regulatory Interfaces 5.8 Case Study National Temporary Staffing “Markets” in Comparative Context 5.9 Components of National Temporary Staffing “Markets” 8.10 Attributes of Standard and Nonstandard (Atypical) Employment 8.11 Typology of Free and Unfree Labour

15 32 75 96 105

37 39 74 74 76 95 103 107 108 167 175

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Acknowledgments

We would like to thank the Social Sciences and Research Council of Canada and the Inter-University Research Centre on Globalization and Work (CRIMT or le Centre de recherche interuniversitaire sur la mondialisation et le travail) for financial and logistical support for the workshop that enabled us to bring the contributors together to discuss the collection. We would also like to thank the graduate students—Heather Jenson, Kaitlyn Matulewicz, Supriya Routh and Ania Zbyszewska—who participated in the workshop and provided excellent comments on the draft papers. Gregor Murray deserves a special thanks for his encouragement of the project, as does Kaitlyn Matulewicz for her excellent logistical skills and careful attention in helping us put the manuscript together.

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Temporary Work, Agencies and Unfree Labour Insecurity in the New World of Work Kendra Strauss and Judy Fudge

1.

INTRODUCTION

In the last decade, studies of labour market change, especially in the industrialised global North, have theorised and provided evidence of a number of interlinked processes related in different ways to the breakdown of the postwar normative model of paid employment. This model of employment, although differentially articulated, embedded and enforced, nevertheless provided key threads of continuity that bound nations to a common understanding of the employment relationship. These threads of continuity included the standard contract of employment, the male breadwinner gender contract (encompassing the family wage), and the “classical” labour law regulatory regime grounded in a triangular relationship between companies, trade unions and the state (Supiot 2001) through which the benefits afforded by the standard employment model were institutionalised and enforced (Fudge and Owens 2006). The standard contract of employment itself conveyed a model of risk sharing in which fidelity to an employer over the life course was rewarded with continuous, full-time employment, on the employer’s premises or under the employer’s supervision, with adequate occupational welfare benefits (e.g. a pension, health insurance, sickness and holiday pay entitlements), a standardised working day and week and often (although not universal) union representation (Vosko 2000). Moreover, as the work of economic and labour geographers has highlighted, this normative model constructed, and was influenced by, geographical, spatial and scalar configurations of the space-economy that have been disrupted and reconfigured along with the standard employment relationship (Herod 2001). The processes related to (both driven by and driving) the breakdown of the standard employment relationship include the generalised but uneven deregulation (or, more accurately, reregulation) and flexibilisation of labour markets (Peck, Theodore and Ward 2005), discourses and policies of neoliberal globalisation (Herod 2000), increased—although vastly unequal— mobility of capital and labour and deindustrialisation and the rise of the service economy, with concomitant declining union power and density (cf.

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Cumbers, Nativel and Routledge 2008). Macro-level outcomes of these processes have included a shift in the power of global capital relative to the power of (national and international) labour and more localised policies attacking the power of national working class and labour movements (see e.g. Wills et al. 2009). In this sense these processes are illustrative of new formations of state-capital relations because as Fudge and Owens (2006: 5, emphasis added) point out in relation to globalisation and the “new economy”: “the market has assumed a central place in the global order, dominating and driving it, but forged by interdependency of capital and the state.” But the new economy has been remade socially as well as economically: women’s increased labour market participation is (although again uneven) one of the most significant transformations of the postwar period, entailing shifting (and often blurring) patterns and norms across public and private spheres. Women’s widespread entry into paid work is, contentiously, associated with the expansion of nonstandard work within core labour markets. Standing (1989) has called this the “feminisation” of employment because what was nonstandard work for men was in many liberal capitalist countries standard paid work for women; in theories of labour market segmentation, these were the jobs in the secondary sector. The concept of feminisation also overlaps with trends identified in, for example, Fudge’s (1997) and Vosko’s (2000) explorations of the rise of “precarious work”: part-time work and self-employment, temporary work, contract work, on-call work and homebased work, all of which tend to be poorly paid, lacking in security, with few occupational benefits and an absence of collective representation. In the industrialised economies of the global North these jobs were traditionally on the margins of the labour market, at the core of which was the normative model of the standard employment relationship, and were performed by women, people of colour and ethnic minorities and others who did not conform to the (white) male breadwinner/worker identity. Now, however, nonstandard forms of work are becoming the “new normal” for workers and sectors previously associated with the primary sector (see e.g. Peck and Theodore 2007 on US employment trends). A less explored dimension of the rise of nonstandard work is the increasing importance of labour intermediaries, especially temporary employment agencies (TEAs; also called temporary staffing agencies, or TSAs). A key milestone was the International Labour Organisation’s (ILO) passage in 1997 of Convention 181, which reversed its traditional opposition to labour intermediaries and recognised the “constructive” role of private employment agencies in “well-functioning” labour markets. In the fifteen years since the ILO’s about-face, temporary agency employment has increased dramatically, albeit from a low base, especially in those countries with tightly regulated but liberalising labour markets (Coe, Johns and Ward 2007). While some of that expansion reflects the hypermobility of highly skilled, highly paid professionals and “knowledge economy” workers (Carnoy, Castells and Benner 1997)—Beck and Beck-Gersheim’s (2001) “individualized”

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employees—it also reflects the incursion of “feminised” forms of employment into blue- and white-collar sectors traditionally defined by the standard employment relationship. As Wills and colleagues (2009: 26) point out, in what has become known as neoliberal economic management, subcontracting is used to push down the wages and conditions of work in jobs like cleaning, care and construction; large parts of the low-wage economy are “sweated” through subcontracting, a mode of the organisation of work that has its roots in pre-Fordist production practices. Moreover, evidence suggests that “sweating” at the bottom end of the labour market (increasingly populated by migrant workers, both documented and undocumented, in many countries) often involves labour intermediaries who exploit the ways in which processes of racialisation and the construction of new categories of social difference, instigated by immigration regimes, render some workers extremely vulnerable—including to forced and unfree labour (Theodore 2003; Brass 2011; Strauss 2012a; 2012b). 2.

AIMS AND OBJECTIVES

While these processes—the numerical and normative rise of nonstandard work, the de- and reregulation of labour markets to achieve “flexibility,” the increasing importance of temporary employment agencies and the (re)emergence of conditions of extreme exploitation and unfreedom—have been explored individually, there has been relatively little work to date that has attempted to explore the linkages between them. This volume utilises a bifocal lens to focus, on the one hand, on linking up disparate literatures on, and debates about, different regulatory approaches, new and expanding institutions of labour intermediation and the coevolution of precarious temporary work and unfree labour; on the other, it grounds this contribution in a series of empirically rich and geographically diverse case studies. We thus aim to make a distinctive contribution to the body of research on temporary employment agencies in the following three ways: 1. By bringing together new empirical and theoretical contributions that integrate agency, worker and regulatory perspectives. 2. By grounding this integrative approach in a cross-national comparative framework, which highlights how the processes implicated in the rise of temporary work are both global and multi-scalar.1 3. By using this approach as the basis for assessing how, and to what extent, temporary agency work represents a particular kind of reconfiguration of the standard employment relationship. In particular, we are interested in its interrelationship with new and evolving patterns of migration and the ways in which it challenges the normative and ideological model of “free” wage labour (and can thus, conversely, be understood as unfree labour).

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Our overarching theoretical framework is grounded in a feminist political economy approach that shares with labour geography and feminist legal studies a relational understanding of wage labour that “connect[s] work and the reproductive sphere, class and non-class identities, local affairs and global forces, and so on” (Castree 2007: 859). These domains, however, are mediated by institutional and social arrangements that shape labour markets and regulate employment relationships: the legal regime is a significant configuration of these arrangements, and it tends to operate to naturalise power relations, but in highly uneven ways. In this sense our approach has affinities with the “continuum” approach to understanding the context of forced and unfree labour (see e.g. Skrivankova 2010). What we seek to explore is how the particular constellation of economic, social and legal norms, institutions and practices differentially positions workers within particular labour markets in relation to this continuum of labour exploitation and how this constellation either reinforces or challenges what could be called, to paraphrase Melissa Wright (2006), the myth of the disposable temporary worker. In what follows we first explore the rise of new institutions of labour intermediation and their regulation. We then explore how these phenomena relate to the expansion of precarious labour and the overlap between precarious temporary labour and unfree labour. We conclude with an exploration of the links between precarious work and precarious lives, making the argument for an analytical framework and theoretical lens that facilitates an understanding of temporary agency work from a standpoint grounded in the interrelationship of production, the labour process and social reproduction (see also Strauss 2012b). 3.

NEW INSTITUTIONS OF LABOUR INTERMEDIATION: TEMPORARY EMPLOYMENT AGENCIES AND THEIR REGULATION

Like Peck and Theodore (2010: 87), we have a heterodox understanding of what labour markets are and how they function: “site[s] of conflicting power relations, enduring regulatory dilemmas, necessary but problematic forms of institutionalisation, embedded path dependencies and systematic uneven development . . . institutionally cluttered zone[s] marked by successive waves of restructuring and re-regulation.” This heterodox understanding also highlights the role and agency of multiple actors rather than focusing solely or predominantly on one (e.g. capital, and especially firms, in “traditional” economic geography; workers and unions in labour studies and labour geography) or framing all as the autonomous, rational, profit-seeking agents of mainstream economics. This volume thus conceptualises temporary employment agencies, the socioeconomic and regulatory contexts in which they operate and the workers they employ as active

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but differently positioned constituents of the larger process of the ongoing social construction of labour markets (see also Ward 2004; Coe, Johns and Ward 2007). Two of the key trends in contemporary labour markets are the rise of nonstandard—contingent or precarious—work and new and increasing forms of labour intermediation.2 What this means in practice is that more and more workers are no longer employed directly by a single employer, but rather are in intermediated employment relationships that in some context strain the bounds of what is understood by “employment.” Employment has traditionally been understood as a bilateral contract between an employer and an employee who is under the control and direction of the employer. Intermediated employment is a subcategory of nonstandard employment, and temporary agency workers are a subset of temporary or contract workers. Not all intermediated work is temporary; for example, subcontractors in production chains may employ workers on an ongoing and indeterminate basis. Nor are all temporary workers employed through intermediaries. However, there is a close relationship between intermediated and temporary employment. For example, in countries like the UK, temporary agency workers, in particular those at the bottom end of the labour market, have little power over their terms and conditions and typically no access to collective representation, making them some of the least secure and most exploited nonstandard workers (McDowell et al. 2008). The precarious nature of the employment of these agency workers is related to the ways in which labour intermediation is entangled with new regimes of labour market governance: as Rittich (2006: 32) states, the marginal status of those engaged in precarious work is not something “that can be attributed to the nature of investment, production and exchange in the new economy alone. Rather they are intimately linked to the institutional structure in which work takes place and the choices states make about the structure of legal entitlements; the distribution of resources through taxation and income transfers and expenditures on public goods; and the sharing of risk through legal and social institutions.”

3.1

Labour Intermediation

Labour intermediaries are “economic agents who co-ordinate and arbitrate transactions in between a group of suppliers and customers” (Wu 2004, quoted in Harrington and Velluzzi 2008: 171), whereas brokers are a kind of intermediary who provide coordination services without themselves buying and selling goods. Thus labour market intermediaries (LMIs) are institutions, mechanisms or actors that intervene between job seekers and employers. In orthodox economic thinking, LMIs reduce labour market inefficiencies by redressing gaps and inefficiencies in information: thus their relatively benign “value added” is in increasing the efficiency of employers’ and employees’ searches, creating economies of scale in searches, providing

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specialised skills and reducing uncertainty (for example, on the part of the employer, the risk of a mismatch between demand for a product or service and the labour needed to fulfil that demand). This understanding of labour intermediation of course ignores power differentials between labour and capital and downplays the fact that intermediaries generate a profit from the services they provide. For TEAs this profit often derives from the difference between the fee charged to the employer for supplying labour and the wage paid to the worker who supplies that labour. Thus, as Harrington and Velluzzi’s (2008: 174) typology of LMIs illustrates, internal labour markets are the only type of labour market intermediary to transfer risk from the worker to the producer whereas TEAs transfer risk from the firm to the employee. As Ciscel and Smith (2005) point out, LMIs shift responsibility for working conditions from the primary producer, and even from the contract producer, in production and commodity chains to a labour supplier or individualised contract worker. LMIs, including TSAs, have historically done the bulk of their business in industrial and clerical occupations, although in many countries they are increasingly present in almost all sectors of the economy (especially hospitality and, as Wills and colleagues 2009 point out, where the contracting out of formerly public services such as cleaning and social care has occurred). LMIs provide quantitative (or numerical) flexibility and the ability to avoid regulatory constraints (especially related to occupational welfare and social benefits), as well as economies of scope for specialised workers. Organisational forms interact with the structure of markets to influence work arrangements. Some organisations and markets are structured in ways that increase the vulnerability of workers to poor outcomes and labour market risk. Thus, the actual use of LMIs often reflects their regulatory capability to shift risk and lower wages, rather than the heralded role of matching skilled and mobile workers with flexible and highly paid contract work. Harrington and Velluzzi (2008: 176), for example, note that in the US all industrial and clerical occupations had lower hourly average wages in TEAs than in the economy overall: the five occupational titles with higher wages included computer programmers and specialised nursing staff. In the UK, research by Forde, Slater and Green (2008) has shown that while agency workers have broadly similar qualification levels to the permanently employed workforce they are clearly overrepresented in professional jobs (but underrepresented in managerial and associate professional jobs), as well as secretarial, semiskilled process jobs and unskilled elementary occupations. Moreover being a black and minority ethnic (BME), older worker or married woman increases the likelihood of agency work, as does being a recent arrival to the UK. Temporary agency workers also earn less than both permanent employees and other types of temporary employees; the average hourly wage gap between permanent and agency workers in the UK is £3.67 and is higher for men than for women (Forde, Slater and Green 2008: 20).

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However, the lower wages that agency workers receive do not necessarily translate into lower costs for the firm contracting with the agency for workers (McKay and Markova 2008: 20). TEAs charge the client (or user) firm a fee for supplying workers, which may eat up some of the client firm’s wage savings. What agency workers provide client firms is a great deal of flexibility in the allocation of payroll costs. In many instances, the TEAs also provide the day-to-day payroll and administration, and they also enable client firms to reduce recruitment and training expenses. Research on new and emerging forms of intermediation, and on the importance of migration and migrant workers in increasingly globalised labour markets, has highlighted the increasing role of international labour intermediaries (Krissman 2005; Pijpers 2010) and the overlap between labour providers and smugglers in the context of “illegal” economic migration. Some recruiters work for employers in supervisory roles, as well as being labour brokers, whereas others are independent agents or representatives of agencies. As work by Neil Coe, Jennifer Johns and Kevin Ward (see e.g. Coe, Johns and Ward; 2008; 2009a; 2011; Ward 2003) has shown, labour intermediaries, and the different types of TSAs, have coevolved with different regulatory, economic and social conditions of labour markets in different places in ways that are often quite sector specific (see also Vosko 2000; Theodore and Peck 2002). Moreover, TSAs of different size and type may coexist within sector-specific labour markets, inhabiting different niches. As Pijpers (2010) pointed out, for example, in her exploration of the Dutch context, the recruitment of temporary labour (especially from Poland) was initially the purview of (mostly small) cross-border intermediaries operating in part through kinship and occupational networks; by 2006 large multinationals like Adecco, Manpower, Vedior and the Dutch TSA Randstad were also seeking to recruit Polish temporary labour into the Dutch market, while smaller Polish-Dutch agencies were scaling up to operate in new sectors of the Dutch economy, including providing placement services for long-term Dutch unemployed. Likewise the operation of gangmasters in the agricultural sector in the UK incorporates both individual labour suppliers (often agricultural workers themselves, who simultaneously work as on-site supervisors) and large multisector agencies. Local and national labour market institutions determine types of labour market intermediaries and the roles available to them, as well as the legal and normative status of temporary agency workers (Harrington and Velluzzi 2008). But while there is a diversity of types of labour intermediaries, what is distinctive about intermediated forms of employment is that they are triangular and, as such, depart from the traditional bilateral employment model defined by the “direct” employment relationship between a standard worker and her employer. The labour contract is of particular importance because of its role in establishing the parameters of workers’ employment rights; it thus embodies power relationships in the workplace and broader society (Terry 2009: 466). The triangular nature of

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intermediated employment creates difficulties when identifying and attributing employment-related legal rights and duties, and it can have very different consequences for temporary agency workers depending on the regulatory regime under which they labour. Much depends on whether the temporary agency workers are treated as employees or self-employed workers3 and whether the firm that supplies or the firm that uses their labour is identified as the employer for purposes of attributing responsibility for legal obligations pertaining to employment. Where the identification of the employer is unclear, wages, working conditions and occupational welfare benefits are easily compromised. The labour law regulation of contracts and assignments is only one aspect of the regulation of TSAs; the other is the regulation of the agency business itself (Storrie 2002). Many countries impose licensing requirements on TSAs, including financial guarantees, reporting requirements and limitations on scope and activities (McKay and Markova 2008: 35). Where licensing and regulatory regimes for TSAs are abolished or watered down many are likely to emerge that operate “under the radar”: Pijpers (2010) cites five thousand as the estimated number of IEAs operating in the Netherlands that are involved in recruiting or posting activities that are not entirely, or at all, legal—involving up to eighty-thousand workers, mostly from non-EU countries. Significantly, the extent to which the bilateral (or direct) employment relationship is regulated is closely related to the use of TSAs. The greater the degree of regulation of direct or standard employment, especially when it comes to dismissals, the more likely it is that, if permitted, firms will resort to TSAs for labour. Peck and Theodore (2002) note temporary employment arrangements make up a smaller proportion of total employment in the US, where the direct employment relationship is not normatively embedded within the regulatory regime, than in other Organisation for Economic Co-operation and Development (OECD) countries, where the standard employment relationship has greater statutory protection.

3.2 Temporary Employment Agencies and the (Re)making of Labour Markets As McDowell, Batnitzky and Dyer (2008) point out, the rise of TEAs is a highly significant, yet relatively unexplored, phenomena in the assemblage of workers—including economic migrants—in national and regional labour markets. TEAs are theoretically and empirically important because they are themselves active institutional agents in the remodelling of labour market norms and conventions (Peck and Theodore 2001). Temporary employment agencies have long existed in several countries, in particular the US and UK, but were prohibited in a number of others (such as Italy, Spain and Sweden) until relatively recently, as well as being opposed in international regulatory conventions such as those of the ILO (Peck, Theodore and Ward 2005).

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This legal status of TSAs changed “along with concerted moves—beginning in the 1970s, gathering pace in the 1980s and dramatically accelerating in the 1990s—to liberalize labor market regulation and foster ‘flexible’ employment practices,” often through the de- and re-regulation of national labour markets in both “developed” and “developing” countries that produced conditions favourable to TEAs (Peck, Theodore and Ward 2005: 3). These conditions have in part resulted, in the EU, from the Lisbon Action programme, which has aimed to foster “dynamic” and “competitive” European labour markets (Pijpers 2010). They have also been affected by a wider set of debates over labour market reform in international financial and economic institutions, such as the IMF and World Bank, which have tended to promote deregulated, flexible labour markets governed only by property and contract law (Rittich 2006). The regulation of precarious or contingent work serves to either reinforce or reduce differences—for example in access to collective representation and to occupational welfare benefits—between “standard” and “nonstandard” workers, which makes it both useful and interesting to compare regimes among different nation-states in the context of both remarkable durability in regulatory frameworks and concomitant (albeit uneven) shifts towards legal pluralism (Fudge and Owens 2006; Rubery and Grimshaw 2003). Changes in regulatory regimes to enhance labour market flexibility have contributed to what McDowell, Batnitzky and Dyer (2008) characterise as a labour market, which TSAs both construct and operate within, polarised between “bottom-end” agencies supplying “warm bodies” and top-end agencies supplying highly skilled professional workers—a trend that seems to parallel wider labour market polarisation between those in secure permanent jobs and those in insecure, poorly paid work. These polarizing trends operate at, and simultaneously construct, the interrelated geographical scales of local, regional, national and international labour markets. In this sense they are related to new and evolving mobilities of both capital and labour, especially patterns of economic migration and financial globalisation. The remaking of labour markets through migration and new forms of intermediation involves both state and nonstate actors and practices, interlinked geographies of sending and receiving places and issues of demand (from employers, usually for low-paid flexible labour) as well as supply (Krissman 2005). Wills and colleagues (2009) discuss issues of supply and demand in relation to the reconfigured geography of the “reserve army of labour,” which has been transformed by the globalisation of transport and communications, on the one hand, and by national welfare regimes on the other (see also Silver and Arrighi 2003). Geographers have been at the forefront of exploring and documenting the new geographies of labour intermediation, especially the globalisation of TSAs, the role of agencies in shaping conditions at the bottom end of the labour market, how agencies “assemble” workforces in global cities such

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as London and the regulatory contexts which TSAs simultaneously construct and inhabit (Peck and Theodore 2002; Theodore and Peck 2002; Ward 2004; Datta et al. 2007; Coe, Johns and Ward 2008; 2009a; 2009b; McDowell, Batnitsky and Dyer 2008). Research on the latter has drawn attention to the ways in which TSAs and other actors, including workers and trade unions, seek to actively shape the regulatory and institutional landscapes that are part of the social construction of labour markets. An important insight of this work is how TSAs themselves have intervened in processes of de- and reregulation in order to create the necessary conditions for their flourishing. As Peck, Theodore and Ward (2005: 22) highlight, “for the staffing industry to get real traction . . . host economies must be both comparatively prosperous and relatively well regulated, since the industry finds its markets in the underside of these conditions . . . most developed economies in the world have become prime targets for the staffing industry, which is now capitalizing on the scope for commodifying employment relations in an unusual set of ‘emerging markets’ within the global North.” And whereas the significance of these processes in the industrialised economies has been well documented in this literature, work by labour law scholars has shown that norms of flexibility are equally salient in industrialising and emerging economies (see e.g. Benjamin on South Africa, chapter 6, this volume). Thus, the temporary staffing industry has enormous importance in relation to understanding new kinds and practices of precarious work across a range of contexts. 4.

PRECARIOUS LABOUR

Although precarious employment relationships have long been features of labour markets even in high-income countries of the global North, what is new is the pervasiveness of labour market insecurity today. The rise in precarious employment and the contraction of the standard employment relationship has come to be recognised as “the dominant feature of the social relations between employers and workers in the contemporary world” (Kallenberg 2009: 17). Precariousness is a complex notion, and its use has differed from country to country (Vosko, MacDonald and Campbell 2009: 5–6). It is also closely related to the concept of precarity, which was used by Pierre Bourdieu in the late 1960s to refer to nonstandard forms and relations of employment. The term “precarity” tends to capture “a different, more theoretically oriented debate that has been associated with Marxist intellectuals and activists in Italy and France” (McDowell and Christopherson 2009: 338). By contrast, what the concept “precarious work” or “precarious labour” attempts to encapsulate is the insecurity and instability associated with contemporary employment relationships. It is often, but not always, associated with nonstandard types of employment arrangements such as part-time, fixed-term

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and intermediated agency work that deviates from the normative model of employment. Although employment security is a crucial aspect in all definitions of precarious employment, a multidimensional approach reveals the broader institutional, social and political factors that make employment precarious. Rodgers (1989) identified four dimensions of labour market insecurity that make a particular employment arrangement precarious: (1) the degree of certainty of continuing employment; (2) control over the labour process, which is linked to the presence or absence of trade unions and professional associations and relates to control over working conditions, wages and the pace of work; (3) the degree of regulatory protection; and (4) income level. When combined with the type of employment arrangement, these dimensions of labour market insecurity reveal a great deal about precarious employment. While this multidimensional approach to precarious work highlights the broad range of labour market insecurities associated with these forms of work arrangements, it fails to account for the social processes and relationships that determine who becomes a precarious worker and the nature of their work. In order to illuminate these broader social processes, Vosko (2006) has integrated social context and social location into her conception of precarious employment. She defines precarious employment “as work for remuneration characterized by uncertainty, low income, and limited social benefits and statutory entitlements. Precarious employment is shaped by the relationship between employment status (i.e. self-employed or paid employment), form of employment (e.g. temporary or permanent, part-time or fulltime) and dimensions of labour market insecurity, as well as social context (e.g. occupation, industry, and geography) and social location (or the interaction of social relations, such as gender, and legal and political categories, such as citizenship)” (Vosko 2010a: 2). The benefit of this conception is that it not only emphasizes the relationship between the normative model of employment and the dimensions of insecurity, it also brings the social relations of demand and supply into the equation. Social location combines both social relations and legal and political status, and it provides an important dimension that helps in the conceptualisation of precarious employment. This expansive conception of social location includes both the categories of race and gender, but also nationality and migrant status (McDowell, Batnitzky and Dyer 2009: 8), which, in turn, provides an important empirical and conceptual bridge to understanding how migration status contributes to precarious employment. Anderson (2010: 306) emphasizes how “immigration controls” produce different types of legal migrant statuses that “impact . . . on migrants’ positions in labour markets.” Under international law, states can, through their immigration laws and rules, require particular categories of entrants to have certain skills and experience and place restrictions on the freedoms, privileges, rights and entitlements of migrants who enter their territory. In this way the state produces different migrant statuses through immigration

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law, policies and practices that “work with and against migratory processes to produce workers with particular types of relations to employers and to labour markets” (Anderson 2010). Moreover, migrant status has long-term effects on where migrants work in the labour market, effects that linger even if the migrant’s status has improved (Anderson 2010: 308; Goldring and Landolt 2011). Another benefit of this capacious and theoretically complex conception of precarious work is that it appreciates that there is a spectrum or continuum of work arrangements in terms of the security of the work and the adequacy of the income generated. In understanding the spectrum of precariousness, it is important to be attentive to how the social location of the worker—the way in which regional and local political economies interact with social relations of subordination that are linked to workers’ attributes, such as sex, ethnicity, caste, race, immigration status, linguistic group and skill and ability levels (Lamphere, Zavella and Gonzales 1993)—is connected to different forms of work and the working conditions and employment security of the worker. In this sense, migrant status is one of the signifiers of social difference that facilitates and enables new and evolving forms labour market segmentation. Migrant status is in turn premised on social categories of difference including nationality, race and ethnicity that intersect with gender and occupation to construct “desirable” migrant workers. Theoretically, the process of labour market segmentation by sector in which ethnicity and race and migrant status are the key categories of differentiation is associated, especially in relation to agricultural labour, with both racialisation and unfreedom by Miles (1987) and Satzewich (1991). Racialisation and unfreedom are of course also experienced in sectors unrelated to agriculture, like care, construction and manufacturing. In countries like the UK, race, ethnicity and nationality are coproduced through racialisation and “hierarchies of whiteness” because of the nature of immigration flows within and beyond the EU (McDowell 2008). It is therefore important to recognise that precarity and unfreedom, produced in and through processes of segmentation and instituted by employment and immigration regimes, are complex, contingent and variegated. Thus, neither the spectrum of precarious work arrangements nor the hierarchy of social locations are stable, but rather change over time and vary in different places. For example, the huge growth in temporary labour is a consequence of global capitalism and has been accompanied by a growth in employment agencies and labour brokers (Standing 2011). When combined with workers who are in subordinated social locations, these forms of intermediated labour are very precarious indeed. Moreover, TSAs often place restrictions on the mobility of the workers they recruit, prohibiting them from accepting a more permanent position with the client firm in which they are placed. The relationship between the TSA and the client firm combines to limit the legal freedoms of agency workers. As Vosko (2010b: 633–34)

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notes, when workers register with a TSA, they “generally forfeit their ability to select their preferred type of work; agencies not only assign workers to specific worksites but to particular locations within the occupational division of labour, often with limited regard to the skill set claimed by the workers.” These contractually imposed restrictions on the freedom of agency workers to take up more secure forms of employment function as a form of “voluntary” unfreedom. Moreover, TSAs often operate as crucial agents facilitating transnational temporary migration. Despite a worldwide dip in numbers during the depth of the worldwide economic recession, temporary migration from one state to another has been accelerating since the late 1990s. A distinctive feature of many temporary migration programmes is that the workers who are recruited across borders must maintain their employment with the employer who initially sponsored them or they will lose their legal status to reside and to work in the host country. The concept of unfree labour is used to describe migrant workers who are not free to circulate in the labour markets of the host countries in which they are working (Miles 1987; Satzewich 1991; Basok 2002). Some, like Sharma (2006), consider these unfree migrant workers who cross national boundaries in order to work as the exemplary post-Fordist workforce. The ILO (2010: 213) notes that “evidence suggests that, in some situations, there may be a deliberate link between policies and practices of excluding migrants from legal and social protection while apparently tolerating their presence in precarious situations that ensure they remain low-paid, docile and flexible.” Significantly, these workers also “facilitate the reduction of overall wage levels, help to lower labour standards, and assist in introducing more flexible employment practices” (Bauder 2006: 4). 5.

LINKING PRECARITY AND UNFREEDOM

As the temporary staffing industry has become of a subject of interest, so have the rise and/or intensification (numerical, or in type) of precarious work, new and evolving forms of unfreedom in labour markets and incidences of forced labour and slavery in both the industrialised economies of the global North and the “developing” nations of the global South. This is mirrored by an increased interest among national and supranational institutions such as the ILO and national governments in countries including inter alia the US, UK, Germany, Brazil and the UN in “modern slavery,” trafficking and forced labour. While it is clear that unfree labour and precarious labour are epistemologically distinct, the conditions that have contributed to more widespread conditions of precarity and insecurity, especially for workers at the bottom end of the labour market, have also contributed (although not in a teleological manner) to greater labour market unfreedom, including forced labour.

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The free/unfree distinction originates in the political economy literature, which has sought since the eighteenth century to understand (and define) linkages between political and social power and economic systems of production and reproduction. Marx, influenced by Hegel’s association of the freedom of the subject with the ability to engage in the exchange of property (which included, for Hegel, her own productive capacity), defined labour power as a commodity (Brass 2011). Marx (2008: 113, emphasis added) characterised the buying and selling of labour power in capitalist societies as a process wherein “both buyer and seller of a commodity, say of labourpower, are constrained only by their free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will.” This equality of exchange was subsequently reified in orthodox political economy and economic theory, which understands buyers and sellers of labour power as utility-maximizing agents operating in a frictionless world, and in contract law. But Marx, while using the stylized facts of political economy to represent both the buying and selling of labour power and the labour process (especially the creation of surplus value), nevertheless highlighted in his dialectical understanding of labour the fundamental tension at the heart of capitalist social relations: that workers are free insofar as they have the capacity to sell their labour as a commodity, and unfree insofar as they are compelled to do so in order to reproduce themselves. This tension is also at the heart of attempts to define and regulate unfreedom in contemporary labour markets (Strauss 2009; Phillips 2011). Our goal in this volume is to apply a heterodox understanding of labour markets and labour market change to the concept of a “continuum” of unfreedom in order to understand how de- and reregulation and new institutions of intermediation have served to differently position groups of workers in relation to conditions of exploitation and unfreedom. Chapters on changing regulatory regimes related to labour markets and migration, the internationalisation of TSAs and the rise of precarious forms of work including temporary agency work and precarious labour describe the diverse geographies of new forms of unfreedom. This project is grounded in critical engagements with debates about the ontology of (un)freedom, epistemologies of unfree labour and a reworking of the continuum approach (set out by Strauss, chapter 8, this volume). As Skrivankova (2010: 18) suggests: “The concept of a continuum comes in to help us understand how the denial of rights to certain categories of workers (allowing for their exploitation) fills the space between the desirable (decent work) and the unacceptable (forced labour) . . . The continuum of exploitation aids understanding of the persistent problem of the changing reality of work, captures various forms of exploitation and assists in identifying ways of addressing it.” We use this continuum approach to query the extent to which temporary agency work, especially at the “bottom end” of the labour market, equates with recognised (although contested) understandings of unfreedom, how this relationship is institutionally mediated

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(e.g. through TSAs, as well as labour law and immigration regimes) and what the implications are in the context of current labour market trends. A continuum approach does not, however, represent an attempt to map, in a linear way, precise delineations of freedom and unfreedom in relation to paid work, but rather suggests a framework for understanding how norms, institutions, regimes of governance and forms of agency and resistance interact to produce the dynamic social construction of labour markets. As Figure 1.1 suggests, two key axes on this continuum are those of labour market polarisation (as described earlier) and labour (un) freedom; the lines between these axes indicate relationships between them. The heavy dotted lines represent strong relationships between freedom and autonomy and high-end jobs, and low-end jobs and unfreedom, whereas the lighter dotted lines represent weaker relationships. In the upper box, the bullet points set out in ascending order the attributes associated with free labour on the right and high-end jobs and the top. In the lower box, the attributes of unfree labour (left) are listed in ascending order in relation to bottom-end jobs (bottom). What neither this approach nor most “mainstream” (Marxian and nonMarxian) understandings of labour market change and unfreedom question, however, is the focus on the commodification of labour power and the sphere of production. Feminist analyses have highlighted the interrelationship of the domains of production and reproduction through the

Labour market‘top end’ (primary sector)

Unfree labour

• Wages withheld/debt bondage • Immigration status tied to employment relationship • Immobility/documents withheld/tied housing • Threats, intimidation and violence • Low pay • Insecurity • Lack of control over the labour process • Few or no social benefits

Figure 1.1

• Pay • Security • Occupational welfare benefits • Control over the labour process • Recourse to employment protection • Mobility

Free labour

‘Bottom end’ (secondary sector)

The Labour Market Continuum

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development of the concept of social reproduction, yet there has been remarkably little exploration of relations of freedom and unfreedom in and through this concept. As Federici (2010) points out: “Starting in the early 1970s, a feminist theory took shape that radicalized the theoretical shift which the Third World critiques of Marx had inaugurated, confirming that capitalism is not identifiable with waged, contractual work, that, in essence, it is un-free labour, and revealing the umbilical connection between the devaluation of reproductive work and the devaluation of women’s social position.” 6.

PRECARIOUS LABOUR TO PRECARIOUS LIFE: TOWARDS A FEMINIST POLITICAL ECONOMY OF TEMPORARY AGENCY WORK AND UNFREE LABOUR

The concept of social reproduction, which is drawn from political economy literature, has been used by feminists to illuminate the significance of women’s unpaid labour for the functioning of labour markets and the constitution of social relations. “Social reproduction” refers to the social processes and labour that go into the daily and generational maintenance of the population. It also involves the reproduction of bodies and minds located in historical times and geographic spaces. It “includes the provision of material resources (food, clothing, housing, transport) and the training of individual capabilities necessary for interaction in the social context of a particular time and place” (Picchio 2003: 2). Social reproduction is typically organised by families in households and by the state through health, education, welfare and immigration policies (Fudge 2011). It can also be organised through the market and through voluntary organisations such as churches. Production and reproduction are highly gendered. However, as Rittich (2002: 129) notes, “there is nothing natural or inevitable about the boundaries between productive and reproductive activity or the ability of different parties to pass on or absorb greater or lesser parts of the costs of production.” Traditional accounts of work and labour have tended to ignore all the unpaid domestic work, overwhelmingly performed by women, that is involved in maintaining living spaces, buying and transforming the commodities used in the family, supplementing the services provided to family members by the public and private sectors, caring for people and managing social and personal relationships. Neoclassical, as well as many institutional, economists fail to recognise the socially valuable labour that goes into the processes of social reproduction. Not only do orthodox accounts of the labour market deny the huge productive contribution that women make through their socially necessary, although unpaid, labour, they ignore the link between production and social reproduction. By contrast, for feminist political economists like Picchio (1981, quoted in Vosko 2010a: 7–8), social

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reproduction is crucial for understanding the operation and outcomes of labour markets because it “determines the position of individuals within the labour market, provides the basis for standards of living (and is thus the reference point for wage bargaining), [and] structures inter-and intra-class relations and the distribution of the product.” Women’s precarious position in the labour market is inextricably bound up with the gendered division of labour in the family and women’s disproportionate responsibility for unpaid caring labour. Focusing on Canada, Vosko (2000) describes employment through TSAs as a paradigmatic form of feminised or precarious work, providing women with access to a wage to supplement that of the primary breadwinner while accommodating their primary role, which is to provide unpaid reproductive labour. However, the erosion of the standard employment relationship and the proliferation of feminised forms of precarious employment, which are poorly paid, insecure and fall outside legal and other forms of social protection, have eaten away at the basis of the traditional male-breadwinner and female-housewife gender contract (Fudge and Vosko 2001). Increasingly men are in feminised or precarious forms of employment. But, although the material basis for the traditional gender contract has been eroded in the global North, especially since the 1980s, with the decline in male wage and the increase in women’s labour force participation, the continued gender division of labour within the family has undermined women’s employment equality. Although the majority of women, including those who live in a household with another adult and have young children, work for wages, paid and unpaid work remain deeply gendered activities. Women work at jobs that are different from those of men. Labour markets are hierarchically segmented according to gender (Rittich 2006). Thus, feminists have argued that labour markets, the family and welfare policy are witnessing the simultaneous intensification and erosion of gender (Fudge and Cossman 2002: 25). Walby (1997: 2), for example, identified a convergence and polarisation in the contemporary restructuring of gender relations across Europe. In some ways, the visibility and relevance of gender difference is disappearing as the employment experiences of men and women converge. Yet, in other ways, the relevance of gender in the labour market is increasingly marked. Although the employment history of many women increasingly resembles that of men as women continue to work after childbirth and while they are raising children, women remain overrepresented in precarious employment (jobs that are temporary, part-time, insecure, lacking in benefits and poorly paid) in order to accommodate their disproportionate share of unpaid caring and domestic labour. These processes of intensification and erosion, of convergence and divergence, are occurring both within labour market and family institutions and discourses. In the global North, a single wage is no longer sufficient to sustain a dependent spouse and children, and the privatisation of hitherto public responsibilities for shared risks—such as illness and old age—has increased

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insecurity. Moreover, new types of risk have to be met, including care deficits and the failure of training and skills to provide secure employment. In the global South, most workers are in informal forms of employment that fail to provide them with access to legal and social protection (Fudge 2012). Around the globe, precarious work condemns growing numbers of people to precarious lives. Feminist scholars have also argued that gender inequalities are constitutive of contemporary patterns of intensified globalisation and that gender differences in migration flows often reflect the way in which gender divisions of labour are incorporated into uneven economic development processes (Herrera 2008). On the demand side, the feminisation of migration is fuelled by the increase in women’s labour force participation, falling fertility rates, increasing life expectancy, changes in family structure, shortage of public care and the increasing marketisation of care in the North. On the supply side, economic trends such as growing inequalities between high- and low-income countries, and insecurity, vulnerability and instability due to economic crises, combine with gender-related factors such as abuse, family conflict and discrimination to increase the numbers of women who migrate in order to obtain paid work (Benería 2008). Remittances are key for the survival of household, community and country in a number of developing countries as exporting workers is one means by which governments cope with unemployment and foreign debt. Migrant women have become crucial agents in “global survival circuits” (Sassen 2002). Historically across a diverse range of countries, both developed and developing, women from disadvantaged racial and ethnic groups have provided care and household services to meet the needs of more powerful social groups, while their own care needs have been downplayed and neglected (Razavi 2007). Nowhere is this process of racialisation and subordination more evident than when it comes to the globalisation of care and social reproduction (Parreñas 2005). Many of the women who leave the South to work in the North are temporary migrant workers who do not enjoy either the right to become permanent residents in their host country or the right to circulate freely in the labour market. Given the basic gender division of labour in destination countries, women migrants are often restricted to traditionally “female” occupations—such as domestic work, care work, nursing, work in the domestic services and sex work—that are frequently unstable jobs marked by low wages, the absence of social services and poor working conditions (Antonpoulos 2008: 28). Racialised and gendered transnational migration is often facilitated by TSAs, increasingly important labour market actors themselves, who place workers in specific labour market niches. These temporary migrants constitute the ultimate disposable workforce, freeing host countries of the burden of social reproduction of both the migrant workers and their families. Moreover, temporary migrant worker programmes function as a device to regulate labour markets, creating a differentiated labour supply and segmenting

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local labour markets in terms of the type of contract offered and wages and benefits provided. Migrant workers who are recruited into the bottom of the labour market exemplify the growing contradiction between social and economic reproduction under conditions of global capitalism. Crises, tensions and contradictions in social and economic reproduction are thus manifested in, and coproduce, labour market precarity, increasing polarisation between workers with social and legal protections and those without, and precarious households and lives. Class formation occurs at different scales and enrols workers through a variety of processes operating in and through a range of institutions, including local and transnational labour markets, systems of immigration control, trade regimes and households and their consumption decisions. Emerging networks of migration and the insertion of new groups of workers into labour market niches are part of the evolving articulation between the various capitalist modes of production (which include both material and cultural reproduction) within an economic system and relations of production within a single social formation such as a nation-state (Miles 1987). Different relations of production include unfree relations. Processes and patterns of uneven development, state-sanctioned capital-labour imbalances in mobility and the intersection of axes of inequality such as gender, race and class curtail the ability of workers to commodify their labour at home and subject them to conditions of coercion and exploitation when they migrate, whether “illegally” or through state-sanctioned channels, to seek work. These restrictions produce, and institutionalise, new forms and relations of unfree labour (Strauss 2012a). What a feminist political economic approach highlights is the constellation of processes, norms and institutions through which such relations of re/production emerge. The challenge is to theorise the new forms of unfree labour that are emerging and to situate them in the context of evolving relations of re/production and accumulation. The complexity of the processes at work, which highlight the equal importance of understanding individual and household experiences, local and regional specificities and macro processes over time—all mediated by national institutions and regimes of regulation—make this a challenge that extends beyond the boundaries of a single discipline. In order to do justice to this multidisciplinary approach, and the diverse perspectives offered by the chapters that follow, we employ a heterodox framework for conceptualising not only labour markets, but also processes of regulation. Political economists conceive of labour markets as instituted processes because labour power has an essentially social character (Peck 1996). Related to this is the understanding that regulation is necessary to constitute the labour market and not simply to adjust it as many orthodox and institutional economists claim. However, the precise form that regulation takes at a specific place in time depends on the social, political and cultural context as well as the balance of power between men,

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women, workers, employers and different segments in the labour market. Moreover, different epistemologies of regulation understand even these diverse processes differently due to their focus on particular actors and institutions. So political economists and labour geographers may describe macroeconomic processes relating to the global political economy (Coe and Ward, chapter 5, this volume), as well as the role of heterogeneous institutions in regulating local labour market dynamics within a national economy (Peck and Theodore 2010), whereas scholars of labour and immigration law are more likely to understand regulation as national and supranational legal regimes. A key contribution of this volume is to bring these approaches into dialogue. The chapter by Theodore and Peck sets the context for understanding the role of the TSI in creating flexible labour markets; they examine the role of temporary staffing agencies in creating a volatile US labour market. Wynn explores the political process of adopting a Directive on Temporary Agency Work in the EU, and shows how the UK was able to mould the European regulatory framework to protect its own highly developed TSI. Fudge and Parrott trouble the neat separation of global and local labour markets by examining the role that employment agencies play in constructing and facilitating a global market in migrant domestic workers, and the attempts by the Philippine government and different Canadian provinces to regulate the agencies that place Filipina domestic workers in Canadian homes. Conceptualising the TSI as having an institutional and norm-setting presence in labour markets, Coe and Ward investigate the construction of variegated temporary staffing markets across the globe. Benjamin contrasts the different regulatory choices and dilemmas related to agency work in South Africa and Namibia despite the common history of contract labour as system of labour control with a long and ugly past in southern Africa. Situating the globalisation of the TSI within China’s specific national context, Xu elaborates the hugely significant changes taking place in Chinese labour markets and their implications for living standards. Exploring the linkages between regulation and conditions of social reproduction and unfreedom, Strauss focuses on the establishment of the Gangmaster Licensing Authority in the UK. Vallée and Bernstein illustrates how regulatory actors – the legislature, the courts, and enforcement agencies – together shape and define the precariousness and unfreedom of agency work in the Canadian province of Quebec. The chapters emphasise approaches to regulation, situating law within a broad conception of regulation, and the linkages between regulation and conditions of social reproduction and unfreedom. Taken together, these chapters both challenge hierarchical notions of scales of regulation, and illustrate how regulation constructs scale through processes of institutionalisation in ways that are significantly related to new and evolving processes of segmentation, unfreedom and the intensification of social reproduction.

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Fudge, J. (1997). Precarious work and families. Toronto: Centre for Research on Work and Society. Fudge, J. (2011) Gender, equality and capabilities, in: Novitz, T. and Mangan, D. (eds.) The role of labour standards in sustainable development: theory and practice. Oxford: Oxford University Press, pp. 41–57. Fudge, J. (2012) Blurring legal boundaries: regulating work, in: Fudge, J., Sankaran, S. and McCrystal, S. (eds.) Challenging legal boundaries of work regulation. Oxford: Hart, pp. 1–26. Fudge, J. and Cossman, B. (2002) Privatization, law and the challenge to feminism, in: Fudge J. and Cossman, B. (eds.) Privatization, law and the challenge to feminism. Toronto: University of Toronto Press, pp. 3–37. Fudge, J. and Owens, R. (2006) Precarious work, women and the new economy: the challenge to legal norms, in: Fudge J. and Owens, R. (eds.) Precarious work, women and the new economy: the challenge to legal norms. Oxford: Onati International Institute for the Sociology of Law, pp. 3–30. Fudge, J. and Vosko, L. (2001) Gender, segmentation and the standard employment relationship in Canadian labour law and policy, Economic and Industrial Democracy, 22 (2), pp. 271–310. Gidwani, V. K. and Chari, S. (2004) Geographies of work, Environment and Planning D—Society and Space, 22 (4), pp. 475–484. Goldring, L. and Landolt, P. (2011) Transnational migration and the reformulation of analytical categories: unpacking Latin American refugee dynamics in Toronto, in: Amelina, A., et al. (eds.) Beyond methodological nationalism: Research methodologies for transnational studies. London: Routledge, pp. 41–64. Harrington, J. and Velluzzi, N. (2008) Labour market intermediation, in: Tamásy, C. and Taylor, M. (eds.) Globalising worlds and new economic configurations. London: Ashgate, pp. 171–184. Herod, A. (2000) Workers and workplaces in a neoliberal global economy, Environment and Planning A, 32 (10), pp. 1781–1790. Herod, A. (2001) Labor geographies: workers and the landscapes of capitalism. New York: Guilford Press. Herrera, G. (2008) States, work and social reproduction through the lens of migrant experience: Ecuadorian domestic workers in Madrid, in: Bakker, I. and Silvey, R. (eds.) Beyond states and markets: the challenges of social reproduction. London: Routledge, pp. 93–107. ILO (2010) International labour migration: a rights-based approach. Geneva: International Labour Office. Kallenberg, A.L. (2009) Precarious work, insecure workers: employment relations in transition, American Sociological Review, 74 (1), pp. 1–22. Krissman, F. (2005) Sin coyote ni patrón: why the “migrant network” fails to explain international migration, International Migration Review, 39 (1), pp. 4–44. Lamphere, L., Zavella, P. and Gonzales, F. (1993) Sunbelt working mothers: reconciling family and factory. Ithaca, NY: Cornell University Press. Marx, K. (2008) Capital: a new abridgement. Oxford: Oxford University Press. McDowell, L. (2008) On the significance of being white: European migrant workers in the British economy in the 1940s and 2000s, in: Dwyer, C. and Bressey, C. (eds.) New geographies of race and racism. Aldershot, Hampshire: Ashgate, pp. 51–64. McDowell, L., Batnitzky, A. and Dyer, S. (2008) Internationalization and the spaces of temporary labour: the global assembly of a local workforce, British Journal of Industrial Relations, 46 (4), pp. 750–770. McDowell, L., Batnitzky, A. and Dyer, S. (2009) Precarious work and economic migration: emerging immigrant divisions of labour in greater London’s service sector, International Journal of Urban and Regional Research, 33 (1), pp. 3–25.

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McDowell, L. and Christopherson, S. (2009) Transforming work: new forms of employment and their regulation, Cambridge Journal of Regions Economy and Society, 2 (3), pp. 335–342. McKay, S. and Markova, E. (2008) Understanding the operation and management of employment agencies in the UK labour market. London: Working Lives Research Institute, London Metropolitan University. Miles, R. (1987) Capitalism and unfree labour: anomaly or necessity? London: Tavistock. Parreñas, R. S. (2005) Gender inequalities in the new global economy, in: FauveChamous, A. (ed.) Domestic service and the formation of European identity: understanding the globalization of domestic work, 16th–21st centuries. Bern: Peter Lang, pp. 369–378. Peck, J. (1996) Work-place: the social regulation of labor markets. New York: Guilford Press. Peck, J. and Theodore, N. (2001) Contingent Chicago: restructuring the spaces of temporary labour, International Journal of Urban and Regional Research, 25 (3), pp. 471–496. Peck, J. and Theodore, N. (2002) Temped out? Industry rhetoric, labor regulation and economic restructuring in the temporary staffing business, Economic and Industrial Democracy, 23 (2): 143–175. Peck, J. and Theodore, N. (2007) Flexible recession: the temporary staffing industry and mediated work in the United States, Cambridge Journal of Economics 31 (2), pp. 171–192. Peck, J. and Theodore, N. (2010) Labor markets from the bottom up, in: McGrathChamp, S., Herod, A. and Rainnie, A. (eds.) Handbook of employment and society: working space. Cheltenham: Edward Elgar Publishing, pp. 87–105. Peck, J., Theodore, N. and Ward, K. (2005) Constructing markets for temporary labour: employment liberalization and the internationalization of the staffing industry, Global Networks—A Journal of Transnational Affairs, 5 (1), pp. 3–26. Phillips, N. (2011) Unfree labour and adverse incorporation in global production networks: comparative perspectives from Brazil and India. Chronic Poverty Research Centre, Working Paper no. 176. Picchio, A. (2003) Macroeconomic approach to an extended standard of living, in: Picchio, A. (ed.) Unpaid work and the economy: a gender analysis of the standard of living. New York: Routledge, pp. 11–28. Pijpers, R. (2010) International employment agencies and migrant flexiwork in an enlarged European Union, Journal of Ethnic and Migration Studies, 36 (7), pp. 1079–1097. Razavi, S. (2007) The political and social economy of care in a development context: conceptual issues, research questions and policy options. Gender and Development Program Paper no. 3. Geneva: United Nations Research Institute for Social Development. Rittich, K. (2002) Feminization and contingency: regulating the stakes of work for women, in: Conaghan, J., Fischl, R. M. and Klare, K. (eds.) Labour law in an era of globalization: transformative practices and possibilities. Oxford: Oxford University Press, pp. 117–136. Rittich, K. (2006) Rights, risk and reward: governance norms in the international order and the problem of precarious work, in: Fudge, J. and Owens, R. (eds.) Precarious work, women and the new economy. Oxford: Hart, pp. 31–52. Rodgers, G. (1989) Precarious work in Western Europe: the state of the debate, in: Rodgers, G. and Rodgers, J. (eds.) Precarious jobs in labour market regulation: the growth of atypical employment in Western Europe. Belgium: International Institute for Labour Studies, pp. 1–16.

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Rubery, J. and Grimshaw, D. (2003) The organisation of employment: an international perspective. London: Palgrave. Sassen, S. (2002) Global cities and survival circuits, in: Ehrenreich, B. and Hochschild, A. R. (eds.) Global woman: nannies, maids and sex workers in the new economy. New York: Henry Holt, pp. 254–274. Satzewich, V. (1991) Racism and the incorporation of foreign labour: farm labour migration to Canada since 1945. London: Routledge. Sharma, N. (2006) Home economics: nationalism and the making of “migrant workers” in Canada. Toronto: University of Toronto Press. Silver, B. J. and Arrighi, G. (2003) Polanyi’s “double movement”: the Belle Époques of British and U.S. hegemony compared, Politics & Society, 31 (2), pp. 325–355. Skrivankova, K. (2010) Between decent work and forced labour: examining the continuum of exploitation. Joseph Rowntree Foundation Programme Paper: Forced Labour. Standing, G. (1989) Global feminisation through flexible labour, World Development, 17 (7), pp. 583–602. Standing, G. (2011) The precariat: the new dangerous class. London: Bloomsbury. Storrie, D. (2002) Temporary agency work in the European Union. Dublin; Brussels: European Foundation for the Improvement of Living and Working Conditions. Strauss, K. (2009) Challenging hegemonic deregulation? The UK Gangmaster Licensing Authority as a model for the regulation of casual work. Working Papers in Employment, Work and Finance. Oxford: School of Geography and the Environment, University of Oxford. Strauss, K. (2012a) Migrant workers, unfree labour, and the role of labour intermediaries in the creation of flexible labour markets, Geography Compass 6 (3), pp. 137–148. Strauss, K. (2012b) Unfree again: social reproduction, flexible labour markets and the resurgence of gang labour in the UK, Antipode, 45 (1), pp. 180–197, doi: 10.1111/j.1467–8330.2012.00997.x. Supiot, A. (eds.) (2001) Beyond employment: changes in work and the future of labour law in Europe. Oxford: Oxford University Press. Terry, W. C. (2009) Working on the water: on legal space and seafarer protection in the cruise industry, Economic Geography, 85 (4), pp. 463–482. Theodore, N. (2003) Political economies of day labour: regulation and restructuring of Chicago’s contingent labour markets, Urban Studies, 40 (9), pp. 1811–1828. Theodore, N. and Peck, J. (2002) The temporary staffing industry: growth imperatives and limits to contingency, Economic Geography, 78 (4), pp. 463–493. Vosko, L. F. (2000) Temporary work: the gendered rise of a precarious employment relationship. Toronto: University of Toronto Press. Vosko, L. F. (2006) Precarious employment: towards an improved understanding of labour market insecurity, in: Vosko, L. F. (ed.) Precarious employment: understanding labour market insecurity in Canada. Montreal: McGill-Queen’s University Press, pp. 3–39. Vosko, L. F. (2010a) Managing the margins: gender, citizenship and the international regulation of precarious employment. Oxford: Oxford University Press. Vosko, L. F. (2010b) A new approach to regulating temporary agency work in Ontario or back to the future? Relations Industrielles—Industrial Relations 65 (4), pp. 632–653. Vosko, L. F., MacDonald, M. and Campbell, I. (2009) Introduction: gender and the concept of precarious employment, in: Vosko, L. F., MacDonald, M. and Campbell, I. (eds.) Gender and the contours of precarious employment. London: Routeldge, pp. 1–25. Walby, S. (1997) Gender transformations. London: Routledge

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Ward, K. (2003) UK temporary staffing: industry structure and evolutionary dynamics, Environment and Planning A, 35 (5), pp. 889–907. Ward, K. (2004) Going global? Internationalization and diversification in the temporary staffing industry, Journal of Economic Geography, 4 (3), pp. 251–273. Wills, J., Datta, K., Evans, Y., Herbert, J., May, J. and McIlwaine, C. (2009) Global cities and work: new migrant divisions of labour. London: Pluto Press. Wright, M. (2006) Disposable women and other myths of global capitalism. New York: Routledge.

NOTES 1. While this framework focuses on cross-national comparisons, it does not privilege the nation-state as the sole locus of reregulatory activity or “the global” as the absolute scale at which, for example, the powers of transnational capital and supranational regulation are exerted. Following Peck (1996), we understand labour markets as inherently local, and following Featherstone, Ince, MacKinnon, Strauss and Cumbers (2012), we understand the global and local as coconstitutive of the multi-scalar processes that “come to ground” in different ways in different places. 2. We recognise the labour markets and regimes of labour regulation are highly diverse, and to the extent that the standard employment relationship was and is normative and aspirational as much as descriptive, it only represented the horizons and experiences of a minority of the world’s labouring population (see e.g. Gidwani and Chari 2004: 477 on geographies of work versus labour, in the context of diverse “sites where ‘work’ is enrolled as ‘value’ through various modalities of power”). Nevertheless, as contributions to this volume illustrate, in locales where the wage relation structures production there are trends related to temporary work and labour intermediaries that can be analysed in relation to each other despite the diversity of those locales. 3. In some jurisdictions, like the UK, there is an intermediate legal category of “worker” with entitlement to some, but not all, employment-related statutory benefit.

2

Selling Flexibility Temporary Staffing in a Volatile Economy1 Nik Theodore and Jamie Peck

1.

INTRODUCTION: FLEXIBILITY, IN GOOD TIMES AND BAD

The drive for flexibility, Guy Standing (2011: 31) has observed, is capital’s “unfinished business.” As the social contract of the Fordist-Keynesian era has been progressively dismantled, since the 1980s, employers have increasingly turned to temporary employment arrangements. These allow employment contracts to be rewritten more or less unilaterally, as temp workers are engaged on an as-needed or contingent basis. For businesses, this creates “flexibility.” Fixed (or sticky) labour costs can be rendered variable; workplace discipline and control can be exercised individually (and indeed daily); some of the risks and costs associated with demand fluctuations can be externalised to the workforce; employment relationships can be initiated and terminated at will. For workers, these conditions create “precarity.” Job security is eroded in both formal and practical terms; asymmetrical power relations shift risks, cost pressures and vulnerabilities onto the workforce; access to job benefits and workplace rights is curtailed; exposure to arbitrary and capricious workplace discipline is increased, amplified by the constant threat of termination. But there is a third party in many of these new work arrangements: temporary staffing agencies have acquired a significant “intermediary” presence—constantly rebuilding the bridges between job seekers and temporary-work assignments, facilitating and growing the market for temp work and “triangulating” temp employment relationships, in practice largely on employers’ terms. Indeed, it is now appropriate to talk about a temporary staffing “industry” (TSI), which has experienced explosive rates of growth since the 1980s—on some counts faster than any other sector of the US economy. By the end of the long boom of the 1990s, annual hiring by temp agencies in the US had risen to an historic high of more than 17 million workers (Berchem 2011). Consistent with the now-institutionalised logic of the temp economy, this figure has since continued to fluctuate markedly—dipping to 13.9 million in the 2001 recession, recovering during the years of “anaemic growth” that followed, before slumping to 9.4 million at the depths of the Great Recession of 2007–2009, and then bouncing back once more

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in the even-slower recovery since. Very often the first fired but also the first hired, temp workers bear the brunt of economic fluctuations, but in the aggregate at least they have become, paradoxically, a permanent presence in an endlessly restructuring economy in which a premium is placed on no-strings-attached, “flexible” employment relationships. For many workers, especially those in poorly paid or weakly organised sectors, contingent working has become the “new normal.” Employment through temporary staffing agencies has been an option for businesses for many decades. Yet as recently as the 1970s the national temp headcount in the US was as low as 250,000. As the search for flexibility has driven the demand for temps upward, so the business of supplying temp workers has evolved from a boutique service to a sector in its own right. And as worksite employers have learned how to deploy temps more systematically and strategically—blending contingent work arrangements into their employment policies and practices—so the range and sophistication of TSI service offerings have, in a reciprocal manner, also been extended. In the process, the TSI has become a structural actor in the US labour market. Tens of thousands of agencies, in every town and city in the country, now compete daily to sell their services to employers—still for the most part on price, and therefore on the basis of tightly managed costs and restrained wages. Collectively, they have now achieved what might be called an “infrastructural” scale, a scale of operations that institutionalises this form of mediated contingent work as a permanent characteristic of the job market, one that ensures the ready availability of temp workers both in good economic times and in bad, and one that has been associated with measurable macroeconomic impacts (Peck and Theodore 2007). Conventional wisdom among industry observers is that worksite employers turn to temps in markedly increased numbers when it looks like the economy is beginning to climb out of recession (see Berchem 2011; Silber 2012). Recent economic history has bolstered this view. Temp hiring remains a “leading indicator,” but with each turn of the business cycle the market penetration of the TSI has been ratcheted up, a trajectory that mirrors the sector’s evolution from a stopgap or specialist service to an integral component in mainstream human-resources strategy. The growth of the TSI was one of the defining features of the 1990s economic expansion, and the sector has played increasingly prominent roles in the recessions and (mostly jobless) recoveries that have followed. The TSI’s largest markets are for clerical and light industrial placements, particularly to fill relatively poorly remunerated positions utilising generic (and widely available) skills (Silber 2012). As a result, the industry’s practices have important implications for the employment prospects of workers in low-paid and less-skilled jobs, including disadvantaged workers, and new labour market entrants and re-entrants. In this context, the TSI has become one of the principal setters of labour market norms at the bottom of the US economy. Temp workers carry a double burden in this respect: first, their terms and conditions

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of employment are typically such as to deny access to effective workplace representation; second, they are formally and practically detached from the established system of employment rights and protections (Standing 2011; Fudge and Strauss, chapter 1, this volume; Peck and Theodore 2012). In such an atomised and low-wage contingent job market, the scope of workers to redress asymmetrical employment relations is sharply circumscribed, leading to heightened levels of precarity and eroding terms of employment. Taking the three recessions of the 1990s and 2000s as a point of departure, this chapter examines the role of the TSI in an increasingly volatile US economy. We argue that in order to fully grasp the TSI’s role in evolving patterns of labour market adjustment, it is necessary to understand the changing inner dynamics of the TSI, as well as the reciprocal shaping of employer strategies in the principal sectors in which temp workers are employed. From this point of departure, we develop two arguments. First, the TSI has become an active agent in labour market restructuring and segmentation. The explosive growth of the TSI has been more than a mere by-product of the search for flexibility; over time, the temp industry has facilitated the making and extension of the conditions of its own existence, accelerating velocity of and managing the volatility of employment change across the business cycle. Second, the industry’s internal logic has become “hypercyclical”— prone to exaggerated fluctuations across the cycles of boom and bust, but in cumulative terms contributing to the reconstruction of the employment cycle itself. We will show that the velocity of change and the extreme nature of fluctuations within the TSI compound the wage penalty suffered by temporary agency workers, yielding intensified conditions of uncertainty and insecurity. The way in which the TSI has acquired these shock-absorbing and risk-absorbing functions has significant implications for temp workers and for the economy as a whole. 2.

CYCLES OF CONTINGENCY: THE TSI AND LABOUR MARKET RESTRUCTURING, 1970–2012

Echoing the temporary staffing industry’s own description of its role in the US economy, conventional accounts of the rise of contingent work in the United States emphasize the ways in which the TSI responds to latent demand among both workers and employers for “more flexible” employment arrangements. But this depiction underplays the extent to which the TSI has been an active agent in the restructuring of internal labour markets and the shift towards contingent work (Peck and Theodore 1998) and in the regulation of temporary employment more generally (Gonos 1998; Vosko 2000; Peck, Theodore and Ward 2005; Coe, Johns and Ward 2008). The TSI’s growth, diversification, restructuring and interpenetration with employers’ evolving employment strategies warrants attention, as this sheds light on the TSI’s newly found role as an “infrastructural-scale” labour

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market intermediary. This is not merely a matter of increases in the number of workers placed daily, although the industry’s growth rates have been nothing if not impressive. Rather, the critical questions concern the changing social relations of labour market intermediation, the economic and regulatory “reach” of these work arrangements and the implications of these changes for employment norms and conditions. Over the course of the past four decades, the TSI has evolved from a small-scale service provider to a ubiquitous and diversified business sector, offering a range of services in highly competitive markets. The TSI can now be regarded as a key component of the “regulatory infrastructure” of the US labour market. As a result, the option to “temp out” certain business functions is now routinely factored into hiring and human resources decision making in ways that would have been unthinkable several decades ago. In its most developed form, this outsourcing relationship embraces the contracting out of entire job functions, the transfer of payroll and other administrative responsibilities to temporary staffing agencies, the negotiation of multiyear national and international contracts for staffing placements and the packaging of employment services with other services such as human resources consulting. The TSI’s long expansion, therefore, should be understood both in terms of the changing ways in which client businesses have deployed a growing workforce of agency-supplied temps and the wider managerial imperatives to reduce labour costs, redesign job functions and more closely calibrate staffing levels with product-market fluctuations. While the absolute size of the staffing industry certainly matters, the greater significance of TSI growth lies in the fundamental changes in employers’ use of contingent workers, which lies at the heart of this expansion. In the 1960s and 1970s, temps typically were used by companies seeking cover for permanent employees who were absent due to maternity leave or illness or to manage overload situations when the capacity of the regular workforce was temporarily exceeded. This cover-and-overload function remains part of the TSI’s rationale, but, since the early 1980s, there have been important shifts in the composition of the industry and in its labour markets. Over the past forty years, labour-flexibility strategies have become a normalised aspect of American business practices, as companies have focused on core competencies, restructured their internal labour markets, downsized and sought to avoid the legal liabilities that attend to employment contracts. In the process, staffing companies have acquired new roles as facilitators and purveyors of quantitative and qualitative flexibility and, with it, the entrenchment of arm’s-length employment relations through which worksite employers are relieved of important responsibilities associated with standard employment arrangements. Functionally, the TSI’s role has evolved from the provision of intermittent or stopgap staffing to one of continuous labour market intermediation. Client companies no longer simply turn to staffing agencies on a periodic basis to deliver requisite amounts of no-strings-attached workers; they recognise, and

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exploit, the qualitatively distinctive nature of agency-mediated labour. Working through temp agencies, businesses are able to shed many of the costs, risks and longer-term responsibilities that accompany standard employment contracts, shielded by agencies’ employer-of-record designation under US employment law. Thus, the “temp option” enables employers to access flexible labour in the context of a distinctly favourable regulatory environment (see Gonos 1998; Vosko 2000; Peck and Theodore 2002). Not only can temporary employment be used as a part of a wider strategy of holding down wages and benefits costs, it also has assumed an important role in reducing employers’ exposure to obligations associated with workers’ compensation and unemployment insurance (Mehta and Theodore 2002/03; Fisher et al. 2005). In this way, the TSI has come to perform a systemic regulatory function, with implications for the labour market as a whole, beyond its narrow economic rationale as a wholesaler of just-in-time labour. The account of the historical evolution of the TSI that follows, then, is more than a story of strong secular growth; it is a story of industrial and regulatory transformation.

2.1

The 1970s: Stopgap Staffing in a Turbulent Economy

The modern temp industry was established in the years immediately following World War II with the incorporation of several industry leaders, including Manpower, Kelly and Tandem, and the founding of dozens of small and mid-size independents (Moore 1965; Theodore and Peck 2002; Gordon 2008; Hatton 2011). During the TSI’s formative years, most staffing agencies built their client bases by specialising in either clerical or light industrial placements, systematising a staple service offering—the placement of fill-ins to work alongside regular, permanent employees. At the start of the 1970s, the TSI enjoyed modest increases for such services. The explosive growth that followed was driven by demand for new forms of nonstandard employment (Golden and Appelbaum 1992), coupled with changing cultural norms regarding the gendering of waged work and the role and value of part-time employment (Hatton 2011). The TSI began the decade with 184,000 workers on its daily payroll; within ten years the industry was placing more than 436,000 workers each day. This growth is especially notable given that the US economy slipped into recession in 1973, during which time the TSI endured a steep decline in orders. However, in a pattern that would be repeated in future economic upswings, strongly procyclical growth would push total employment levels to successive historical highs (Segal and Sullivan 1997; Theodore and Peck 2002; Peck and Theodore 2007). Recessions and (especially) recoveries were proving to be “learning moments” for employers, and their reliance on temps and temp agencies would rise with each upturn. And employers would soon be learning the value of extended temp arrangements, too, in what was proving to be a jittery economy. In the recovery that followed

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the 1973–1975 recession, TSI employment increased sharply, recording an annualised growth rate of 24 per cent to the end of the decade, leading TSI employment to more than double between 1973 and 1979.

2.2 The 1980s: Flexible Staffing and Labour Market Restructuring The “double-dip” recession of the early 1980s briefly slowed the growth of the TSI. This too was period of transformation for the industry. Aggregate TSI employment rose to 622,500 by 1984, a trough-to-peak increase of 55 per cent despite continued macroeconomic uncertainty. Notably, the TSI achieved strong counter-cyclical growth for the first time, a sign that the industry was finding an ongoing role within a restructuring labour market (Peck and Theodore 2002). Average annual employment growth of 9 per cent was registered during the downturn (1981–1983), leading some industry observers to proclaim—incorrectly—that the TSI had managed to transcend the fluctuations of the business cycle. This was followed by an impressive 15 per cent annual rate of growth from 1983 to 1990, as cyclical growth gave way to a robust secular expansion. During the 1980s, worksite managers began to utilise temporary staffing services in a more strategic fashion. The duration of individual placements was extended, as managers came to regard agency-supplied temps as short-term employees rather than simply as fill-ins. The TSI’s strong secular growth was catalysed by heightened managerial imperatives to drive productivity increases by streamlining workforces and cutting fixed costs. Worksite employers sought temps for an increasingly broad range of occupations, and staffing agencies moved quickly into emerging markets for temps in health care, the public sector and high-end technical fields. Diversification was thought to be doubly advantageous for the staffing industry: not only did it provide new avenues for increasing the volume of placements, it also offered the possibility of insulating the TSI from downward swings in the business cycle while spreading its own exposure to business fluctuations across different segments of the economy. With a national branch network and a diversified service offering, the TSI had grown to truly infrastructural scale. Worksite managers now had unprecedented choice for designing contingent employment arrangements, serviced by for-profit labour market intermediaries. Rarely did this involve the straightforward substitution of temps for permanent workers; instead the redesign of employment systems was characterised by trial-and-error experimentation, as managers explored a wide range of configurations of permanent, contracted and temped employment (see Moss, Salzman and Tilly 2000). This entailed various attempts to modify standard employment contracts and work relations, albeit under constraints imposed by generalised pressures to hold down recruitment costs and compensation packages,

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while maximizing flexibility in staffing and deployment wherever possible (see Stone 2001). The search for systemic flexibility had been joined.

2.3 The 1990s: Strategic Staffing in a High-Pressure Labour Market Following the 1990–1991 recession, the TSI embarked on its third decade of remarkable growth. Sales increased almost fourfold, from 17 billion in 1990 to 64 billion in 2000, and daily placements rose from 1.1 million in 1991 to more than 2.5 million (Berchem 2004). Although the US economy slipped into recession from July 1990 to March 1991, the impact on the TSI was modest, with the temp sector losing just 4 per cent of its daily placements during the downturn, losses that were quickly recovered as the US economy surged. Even though growth rates slowed in the second half of the 1990s, the expansion continued as the industry encountered a problem of worker shortages in historically tight labour markets, with daily placements peaking at 2.69 million in April 2000 (Figure 2.2). The temporary staffing industry had learned some new tricks while riding the protracted macroeconomic upswing. Unprecedented job growth meant that temp agencies were being called upon to design “staffing solutions” across the labour market, encroaching further into technical, professional and managerial occupations (see Silber 1997) and deepening their penetration into clerical and light industrial job markets. Propelled by strong macroeconomic growth, the number of temporary staffing agencies operating

3000

2500

2000

1500

1000

500

0 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012

Figure 2.2

TSI Monthly Employment Across the Business Cycle, 1990–2012

Source: US Bureau of Labor Statistics, Current Employment Statistics. Shaded areas denote recessions. Employment in thousands.

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in the US increased by 50 per cent between 1995 and 2001 (Brogan 2001). The industry has few barriers to entry, and although there have been several waves of consolidation, the US market remains highly fragmented (Theodore and Peck 2002; Peck, Theodore and Ward 2005; Silber 2012). The opening of new agencies further saturated the high-volume clerical and light industrial segments of the market, where barriers to entry are lowest. Agencies effectively replicated a “low-road” business model, providing limited value-adding services, holding down billing rates and pursuing high-volume accounts. A mode of “destructive growth” was established, as industry stalwarts and start-ups were thrown into competition in maturing markets characterised by intense, price-based competition (Theodore and Peck 2002). Aggressive pricing tactics on the part of larger firms in the industry, coupled with price undercutting by small agencies, contributed to falling gross margins across the temp sector (Peck and Theodore 2007), even as national unemployment rates plunged and worksite employers struggled to cope with worker shortages. During a period when worksite employers were prepared to significantly raise labour costs, the TSI, with its narrow margins and low barriers to entry, was unable to wean itself away from the high-volume, low-price business model that had long predominated in the clerical and light industrial segments of the industry. And whereas downward pressure on billing rates makes the service increasingly attractive to employers, it also places stubborn limits on worker pay, especially in lower-skilled occupations. While temps could command premium wages in some specialty sectors, like accounting and IT, these exceptions proved the more general rule of wage suppression. But no less important is the fact that the TSI’s thin margins induced a volumechasing, expansionist logic, as the industry continued to live off growth rather than upgrading or value adding. The selling of cost-saving flexibility became the TSI’s systemic rationale, driving penetration rates and volumes higher, and the “temp frontier” outward, but commodifying and degrading new markets at the same time. The TSI consequently not only grew the market for contingent labour in the 1990s, it helped “make” that market by propagating its own logics of price-based competition and wage suppression and screening for friction-free workplace compliance. These were the principles around which the TSI’s generally low-road business model was consolidated during the 1990s. Certainly, some had attempted to develop a range of value-adding services for their business clients, with a view to securing market share and defending revenues against both cyclical swings in the economy and margin pressures applied by competitors. Up-market agencies moved to established new roles as providers of strategic staffing and human resources “solutions,” offering clients a range of flexibility packages to meet their needs for just-in-time, seasonal and even (quasi)permanent workers (Peck and Theodore 1998). However, for most agencies, strategies of occupational upgrading and diversification were able to provide only limited protection against price-based undercutting, as

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competitive pressures deepened across the industry. Many of these attempts to fashion new value-adding strategies were quickly lost to the market, their low-rent forms diffusing through an industry acclimatised to chiselling and commodification (Theodore and Peck 2002). Just as in industrial temping, price-based competition became normalised across the industry, with the exception of a few specialty sectors. Growing pressures on margins fostered a destructive dynamic: on the one hand, long-established agencies were thrown into competition with new independents that were forced to resort to cost-minimisation forms of competition, whereas on the other hand, the corporatised segments of the TSI were prepared to go for “share over margin” in an attempt to drive out the competition. The outcome was extreme margin pressures, both among the major corporate players at the “top” of the industry—with their defences of market share—and among the small independents at the “bottom”—struggling against new entrants and undercutting the more established competitors. In the clerical and industrial segments of the industry, agencies found themselves undermining the very markets upon which they depended, becoming locked in a cycle of (offensive and defensive) cost cutting and margin shaving. In the process, the stable margins and increasing revenues of the 1980s gave way, over the course of the 1990s boom, to a consolidated growth model based on cost containment, service rationalisation and head-to-head competition.

2.4 The 2000s: Temporary Staffing between Flexible Recessions and Jobless Recoveries If the 1990s were the decade in which the TSI firmly established its role as a large-scale labour market broker with a substantial and distinctive role in mediating processes of labour market adjustment across the US economy, the 2000s have been a period of faltering growth and sudden employment declines. The 2001 recession plunged the TSI into its longest and deepest period of contraction to date. Revenue growth among the industry’s corporate leaders stagnated, while numerous small agencies were shuttered. The large-scale shakeout of temporary jobs that occurred before, during and after the recession saw industry revenues fall by more than 10 per cent. But it was the TSI’s temporary workforce that bore the brunt of the downturn, as total employment in the sector plummeted by 21 to 28 per cent—between four and five times the rate of TSI job loss experienced in the early 1990s recession. During the long downturn of 2000–2004, temp payrolls shrank by between 556,000 workers (according to the Bureau of Labor Statistics) and 740,000 (on the modified count favoured by the American Staffing Association), with job losses being especially severe in the light industrial segment of the industry. In nine years of strong growth after 1991, the TSI had added more than 1.5 million new workers; the 2001 downturn had removed between one-third and one-half of this workforce, apparently

Selling Flexibility

35

confirming the long-standing contention that temping provides flexibility largely on employers’ terms (see Golden and Appelbaum 1992; Gottfried 1992; Gonos 1998; Lambert 2008; Vidal and Tigges 2009). In aggregate terms, the scaled-up TSI was performing a shock-absorber function, enabling businesses to externalise the costs of economic fluctuations and regulatory risks onto the TSI and its contingent workforce. The TSI provides an organisational mechanism for concentrating and outsourcing the “pain” of workforce adjustment. Its internal logic, of course, is not literally to absorb these costs on behalf of employers, but rather to pass them on to the temp workforce as “efficiently” as possible. During the slowdown, the TSI’s workforce shouldered a disproportionately large share of economy-wide job losses: over the course of the officially designated recession, temp agency workers—which as a group represented just 2.5 per cent of the total workforce—accounted for nearly 26 per cent of net job losses across the national labour market. That such a relatively small sector of the US labour market could absorb one quarter of economy-wide net job losses is an indication of the unique function of mediated work practices like temporary staffing in periods of intense restructuring (Peck and Theodore 2007; Nash and Romero 2011). During the boom years of the 1990s, many employers embraced a policy of continuous workforce restructuring. Temporary staffing became an important element in this prevailing approach to increasing productivity and maintaining competitiveness. As the economy slipped into recession, the TSI was called upon to carry much of the strain of initial layoffs. However, temps had been feeling the effects of the slowdown some ten months prior to the official start of the recession, consistent with their status as the canaries in the macroeconomic coal mine. By the recession’s midpoint, in July 2001, when 520,000 jobs had been lost across the national economy, the TSI’s cumulative job losses stood at 218,300, no less than 42 per cent of economy-wide net job losses. On this evidence, it is clear that the TSI was very much on the front line as the recession hit, its workforce carrying a disproportionate burden of the costs of workforce adjustment. The TSI’s climb out of the early 2000s recession was a steady but extraordinarily erratic one (see Figure 2.2). The pattern of secular, year-on-year growth enjoyed during the 1990s was replaced by one of secular volatility in the following decade. And then came the Wall Street crash. The Great Recession of 2007–2009 brought significantly deeper job losses, across the economy as a whole, than the two preceding downturns. Although, in the early months of the recession, employment declines were modest, by the close of 2008 and into 2009 employers were shedding workers—temporary and permanent—in staggering numbers. Figures for January 2009 showed that the US economy lost 818,000 jobs in the previous month alone, as the national unemployment rate unexpectedly surged to 7.6 per cent, its highest level in fourteen years. These were the largest monthly job losses since 1974, and by February 2010, the economy had shed 8.8 million jobs compared to

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the previous peak (Silber 2009; Goodman and Mance 2011). Once again, the TSI—and the temp workforce—bore a disproportionate share of this massive shakeout, downsizing by 865,400 workers, or more than twice the amount shed in the previous recession and close to ten times the number who were stood down in the recession before that. In the down slope of the Great Recession, the temporary-employment sector shrank its payrolls by almost one quarter in the span of a year, an experience that industry analysts recognised was without historical precedent (Silber 2009). Within the staffing industry, the effects of the slowdown have been most severe in lower-skilled jobs, where there have been large-scale job losses over a longer period relative to higher-skilled segments (Silber 2008, 2012). Such findings lend credence to arguments, from a range of perspectives, that the TSI is beginning to assume an important and ongoing macroregulatory role in the US labour market (see Katz and Krueger 1999; Peck and Theodore 2002; Autor 2003; Schreft and Singh 2003; Aaronson, Rissman and Sullivan 2004; Cappelli and Neumark 2004), providing as it does a means to manage and dissipate the effects of product market/personnel fluctuations, to tap skills on a discontinuous basis, as well as to (re)establish a form of at-will employment relationship amongst significant segments of the labour supply. As the TSI has grown and deepened its reach into the US economy, its role in containing upward wage pressures has been enhanced. Overall, workers supplied by the TSI—especially workers in less-skilled occupations—earn average hourly wages that are substantially below those prevailing for directly hired workers in the same occupation (Kilcoyne 2005). Table 2.1 presents the top twenty occupations supplied by the TSI. In seventeen of the top twenty occupations, the average wage earned by temp workers was substantially lower than the average national wage in that sector. Only in the three nursing occupations (which have experienced protracted, nationwide worker shortages) do temp agency workers receive a wage premium. The job fields with the largest hourly wage differentials between temp workers and the sectoral average are low-wage, low-skilled occupations such as construction labourers (−4.59; 49.5 per cent wage penalty), assemblers and fabricators (−4.66; 49.2 per cent wage penalty) and production workers, all other (−3.81; 39.4 per cent wage penalty). These wage-suppression effects are likely to be amplified over time, as temp agencies increasingly monopolise the “ports of entry” to many occupations. The increasing reliance on agency-supplied temps by employers, therefore, is directly altering pathways into employment for new labour market entrants and returning job seekers (Peck and Theodore 2001; Autor and Houseman 2010), while at the same time leading to downward pressures on wage rates and benefits packages. Assertions that lower wage rates of temporary workers in these positions are the result of lower productivity levels or less desirable human capital attributes (see Ono 2009) remain unsubstantiated; rather, the high degree of labour substitutability in wagepenalised occupations and significant labour shortages in wage-premium

12.53 8.69 10.53 8.09

439,390 124,420 107,850

Labourers and freight, stock, and material movers, hand

Office clerks, general

Packers and packagers, hand

Team assemblers 8.41 11.72 9.27 8.96 12.39 15.57 10.80 30.99 10.67 9.48 11.13 11.64 8.40 20.63 9.74

77,660 72,020 62,760 53,970 51,640 47,730 47,370 45,010 44,820 40,320 38,380 37,790 36,130 30,750 30,210 28,690

Helpers—production workers

Customer service representatives

Construction labourers

Packaging and filling machine operators and tenders

Secretaries, except legal, medical and executive

Executive secretaries and administrative assistants

Data entry keyers Registered nurses

Receptionists and information clerks

Assemblers and fabricators, all other

Office and administrative support workers, all other

Nursing aides, orderlies and attendants Janitors and cleaners, except maids and housekeeping cleaners Licensed practical and licensed vocational nurses Stock clerks and order fillers

Source: Kilcoyne 2005.

9.68 9.66

103,470

Production workers, all other

All occupations

2,375,330

Average hourly wage ($)

Temp services employment

82.0 118.8 92.0

−0.78

110.7

81.8

50.8

97.8

91.5 115.9

−1.51 3.88

1.25

−0.24 −4.66 −2.03

4.93

86.4

94.6

70.6

50.5

80.5

76.9

60.6

72.3

89.1

89.6

57.9 78.8

−5.27

Temp wage/ national average wage (%)

−1.84 −1.09 −0.88 −2.68 −3.81 −1.94 −2.29 −4.59 −2.63 −0.67 −2.12 −0.92

Difference from national average wage ($)

Average Hourly Wages of the Top 20 Occupations in the Temporary Staffing Industry, May 2004

Occupation

Table 2.1

38 Nik Theodore and Jamie Peck occupations is a far more persuasive explanation of the observed wage differentials by occupation that are presented in Table 2.1. The assumption that job performance and productivity differentials in lower-skilled occupations, such as construction labourers and hand packers, could explain wage penalties approaching 50 per cent simply is unwarranted (see Englelandt and Riphahn 2005).

2.5

Macroeconomic Logics of Temporary Staffing

In many respects, the TSI’s dynamics and labour market outcomes are most clearly exposed during periods of economic slowdown. Always a volatile business, employment in temporary staffing exhibits greater cyclical amplitude than does employment across the labour market as a whole (see Segal and Sullivan 1997; Peck and Theodore 2007; Silber 2012). Yet because the TSI is not a “conventional” business sector, but one whose fortunes are bound together with a wide range of enterprises across the economy, the rhythms of its business possess a broader and in many ways diagnostic significance: the cyclical and secular trends in the demand for contingent workers both reflect and recursively help account for deep changes in the organisation of the US labour market. During the past fifteen years, the TSI has developed into a transformative institutional presence in the job market. Although absorbing risk and uncertainty have always been important aspects of the TSI’s role, the sector is now performing a more systemic function, both quantitatively and qualitatively. It is now well established that the three most recent cycles of recession/ recovery in the US have broken with historical trends, their anaemic postrecession employment performance, in particular, leading economic commentators to coin the term “jobless recovery” (see Schreft and Singh 2003; Schweitzer 2003; Pollin 2004; Freeman and Rodgers 2005; Hall 2007). Although there is continuing debate as to whether the three jobless recoveries, in the early 1990s, early 2000s and late 2000s, should be attributed to accelerated structural change in the labour market, productivity growth, economic and political uncertainty or institutional factors, it is increasingly acknowledged that the robust job growth that was once a typical feature of recoveries may be a thing of the past. Moreover, the fact that the recoveries following both the 2001 and the 2007–2009 recessions were even weaker than their predecessors has focused attention on the particularities of recent labour market history. The infrastructural role of the temporary staffing industry warrants close examination in such as analysis. Comparing the 2007–2009 recession with its predecessors highlights the shifting relationship between the TSI and the wider economy. Table 2.2 compares cycles of recession and recovery since 1972, examining adjustments in temporary and permanent employment for each of six recessions as well as the respective twelve, twenty-four and thirty-month periods of

Employment adjustment 12 months into recovery

Employment adjustment 24 months into recovery

Employment adjustment 30 months into recovery

−1,636

−7,479

−67

−91

−421

−796

July 81– Nov. 82

July 90– March 91

March 01– Nov. 01 Dec. 07– June 09

10.6

25.7

7.4

2.4

3.3

2.6

341

45

131

166

81

49

Source: US Bureau of Labor Statistics, published and unpublished data.

−1,231

−2,824

−968

−32

Jan. 80– July 80

−1,260

−33

−482

−566

−24

3,084

1,762

2,400

***

***

***

5.4

4.6

2.0

535

241

347

315

24

106

808

−624

1,591

7,204

−322

4,928

66.2

***

21.8

4.4

***

2.2

643

398

498

354

27

145

1,683

387

3,034

8,522

−851

6,883

38.2

102.8

16.4

4.2

***

2.1

Temporary Temporary Temporary Temporary share of Total Temporary share of Total Temporary share of Total Temporary share of Temporary Total total employ- employtotal employ- employtotal employ- employtotal employ- employemployment ment employment ment employment ment employment ment ment change change ment change change ment change change ment change change (000) change () (000) (000) change () (000) change () (000) (000) change () (000) (000)

Employment adjustment during recession

Changes in Temporary and Total Employment Over Six Recessions and Recoveries

Nov. 73– March 75

Recession

Table 2.2

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Nik Theodore and Jamie Peck

recovery following these recessions.2 During the recessions that began in 1973, 1980 and 1981, the share of net employment losses borne by temporary agency workers averaged 2.6 per cent. While far in excess of their modest share of total employment at the time, the macroeconomic salience of the TSI was clearly rather limited up to this point. In contrast, during the 1990 recession, temporary workers’ share of net job losses rose to 7.4 per cent, whereas in the 2001 recession this figure surged to 25.7 per cent. The Great Recession of 2007–2009 was clearly more of a structural than a cyclical downturn, being associated with massive labour shedding across the entire economy. Still, the TSI workforce, which had exhibited extreme volatility in the years running up to the recession, accounted for 10.6 per cent of nationwide net job losses—six times its share of the employment stock and double the number of temp layoffs in the previous recession. In the recoveries following the recessions of the 1970s and 1980s, increases in temporary employment accompanied overall job growth, with agencysupplied temps accounting for an average of 4.1 per cent of net employment growth after twelve months of recovery, 3.8 per cent after twenty-four months and 3.6 per cent after thirty months. However, in the jobless recoveries following the 1991 and 2001 recessions, patterns of employment growth once again began to display a different pattern. In three of the recent recoveries, aggregate employment continued to fall for more than twelve months into the officially designated expansion. In the year after the early 1990s recession, the economy had lost a net 24,000 jobs, despite an increase of 131,000 temporary workers during the period. Within two years, however, sustained employment growth had been restored (although some 22 per cent of net job growth was accounted for by temporary positions). In the jobless recovery of the early 2000s, the pattern was consolidated. Fully twenty-four months into the recovery, the economy was continuing to shed jobs at an historically high rate (−624,000), yet robust growth in temporary employment (+241,000) had been underway for some time. Only after thirty months of recovery did the economy finally return to aggregate job growth, with the TSI continuing to play a leading role. In the yet more elongated jobless recovery following the Great Recession, the economy continued to lose jobs twelve months into the recovery, although the TSI added more than 341,000 jobs during the period. Soon, this would be generating new rounds of media coverage, once again invoking images of the “temping of America” (see Rich 2010; Vigna and Shipman 2010). At the twenty-four-month point of the recovery, overall net job growth had been restored. The economy added 808,000 jobs, although the TSI was responsible for more than 535,000 of them, or nearly twothirds of net job gains. This suggests that a qualitatively different trade-off has been established in the relationship between the hiring of temporary and permanent workers, particularly over the course of the last three jobless recoveries. Not only are employers adding temporary workers well in advance of permanent employees (as has been the pattern for four decades),

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increasingly, they are turning to temps instead of hiring permanently: flexible employment strategies are now a central feature of an elongated, if not continuous, process of workforce adjustment. This process now spans the entire business cycle. Arguably, it is redefining the very meaning of the business cycle, in terms of employment, productivity and wages. This would be consistent with Pollin’s (2004) comparative analysis of the dynamics of US economic recoveries since World War II. During the nine recoveries prior to the 2001 recession, GDP growth averaged 4.3 per cent (for the first nine quarters following the recession), while employment growth averaged 1.8 per cent and productivity growth averaged 3.1 per cent. Following the 2001 recession, however, GDP growth was a more modest 3.4 per cent, but employment growth was actually marginally negative, at −0.1 per cent, while productivity growth surged to 5.1 per cent. Pollin (2004: 5) acknowledges that factors such as offshore outsourcing and IT productivity gains may help explain this historically weak employment performance (see also DeRemer et al. 2004), although he tends to emphasise well-established forces like speed up—“a decidedly old-fashioned, lowtech source of productivity growth.” Moreover, it is evident that the shift towards flexible and mediated work arrangements is playing a significant role in facilitating this process of work intensification. In their analysis of the previous two (jobless) recoveries, Schreft and Singh (2003: 65) plausibly conclude that firms have revealed an increased propensity to substitute more flexible labour inputs—like temp and part-time work and increased overtime—for less flexible ones: The very availability of just-in-time employment practices can contribute indirectly to the joblessness of a recovery. Just-in-time employment lets firms wait and see that a recovery is robust before hiring, yet still expand production on short notice by hiring temps and using overtime. It allows them to lay off workers and delay hiring to a greater extent, which is exactly what happened in the jobless recoveries [of the early 1990s and early 2000s]. The “infrastructural” role of the TSI has been crucial here since the industry’s rationale is concerned with “the very availability of just-in-time employment practices.” This, in fact, is the industry’s “product.” This is the basis of our argument that staffing companies have become important institutional actors. Just as they were attributed a significant, structural role in driving down rates of unemployment to record lows during the 1990s boom (Katz and Krueger 1999), they seem to have performed an equally important function in the post-2001 and post-2009 recoveries, albeit now in the form of suppressing sustained employment growth. No longer, it seems, does the TSI perform a benign and marginal function as a “leading indicator” of wider labour market conditions. Increasingly, it is implicated in creating, maintaining and extending these conditions.

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Even though the main discontinuity in employment dynamics may have occurred between the 1990s recession and its predecessors, there has also been a step change between the two most recent recessions in terms of the role performed by the TSI. The absorptive capacity of the TSI to shoulder job losses has increased significantly, as reflected in the hypercyclicality of employment change in the industry. Since the 1990s boom—in many ways a threshold period for the TSI, when its operational logic and organisation form were consolidated—the temp sector has acquired an economy-wide salience. While the total size of the TSI increased markedly during the 1990s (between the recessions at the beginning and the end of the decade, TSI employment rose by 122 per cent), the sector’s capacity to absorb largescale job fluctuations was extended to a yet greater degree. At its peak, the TSI never carried more than 13 per cent of monthly economy-wide job losses in the 1990s recession. Its peak absorptive capacity during the 2001 recession was 44 per cent, whereas in the 2007–2009 recession the staffing industry bore large-scale job losses throughout a protracted downturn. 3.

CONCLUSION: SYSTEMIC TEMPING IN A CONTINGENT ECONOMY

We have suggested in this chapter that the temporary services business has grown to “industrial” and indeed “infrastructural” scale in the US, and that in so doing its economic role has evolved from that of a stopgap service provider to a systemic and macroregulatory function. The TSI may have been born as a consequence of labour market restructuring, but it has since become a significant actor in the ongoing transformation of the US economy. Four conclusions can be drawn. First, the temporary staffing industry remains tethered to the business cycle, unable to slip the leash of a volatile economy that has been prone to dramatic swings in employment levels. Consistent with its shock-absorber function, the TSI has acquired crucial roles in the management of system-wide employment fluctuations, both at the peak and the trough of the cycle. The temp sector absorbs an outsized share of layoffs in the downswing of recessionary cycles, not so much moderating as concentrating the employment, wage and productivity effects of recessions and passing these on to the marginalised members of its “disposable” workforce. But the TSI seems to flatten out recoveries as well, delaying and dampening permanent hiring, holding down wages and enabling worksite employers to “sweat” productivity gains. Employers tend to ratchet up their reliance on agency-supplied temps during successive recoveries, but they rapidly shed many of those workers in large numbers at the first signs of recession. The sheer speed at which the TSI “infrastructure” allows worksite employers to hire and fire contingent workers has measurably contributed to the weak and volatile performance of the US labour market since the 1990s boom, further eroding the economic position of workers, especially

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in low-wage sectors. Moreover, temporary staffing industry penetration rates are positively correlated with occupational unemployment rates (Silber 2012), indicating that employers are more likely to call upon the TSI to mediate employment relations where labour supply conditions are least favourable to workers in terms of wage bargaining, job security and the like. Second, this association between the high levels of labour market intermediation and weakness in labour demand in heavily “temped out” occupations speaks to the ways in which certain job fields are being systematically remade through the temp “option.” Not only do staffing agencies tend to find the greatest traction in labour market niches where the downward gravitational pull generated by high unemployment rates is strongest, the industry enables and legitimises low wages and employment insecurity, in the process effectively normalising the contingent status of certain occupations—and the workers who are employed in them. This resegmentation on both the demand and supply sides of the labour market in turn is associated with its own path-dependent dynamic: on the demand side portions of internal labour markets are dismantled as “contingent jobs” and are distinguished from “regular jobs” within employers’ workforce systems, and on the supply side marginalized workers are deemed to be an appropriate labour pool for these unstable, substandard positions. Employers, finding a ready supply of underemployed workers that can be mobilised by temp agencies, are free to experiment with progressively greater use of contingent workers while also lowering their labour costs and employment obligations. Third, it is now clear that the TSI did not lead to the growth of the US economy as industry advocates have been eager to claim (see EuroCIETT 2007; Berchem 2011). The TSI expanded during the 1990s in tandem with a booming economy. However, the industry’s labour market penetration rate across the economy as a whole never exceeded 2.5 per cent. This reveals that, although the TSI enjoyed nearly a decade of phenomenal growth across the long boom of the 1990s, the share of temporary employment in the national workforce (the penetration rate) remained essentially flat. During the late 1990s, the industry’s penetration rate rose from 1.7 per cent to 2.1 per cent (Alternative Staffing Alliance 2008), but this appears to have been a largely cyclical increase, not a secular one. Ever since, the penetration rate has not exceeded 2.0 per cent, dipping to 1.47 per cent in the Great Recession (and lower than the trough of the previous business cycle) and climbing slowly to 1.77 per cent by late 2011 (Silber 2009, 2012). It may be true that a robust economic expansion will bring incremental increases in the TSI penetration rate, reflecting continuing adjustments in employer strategies and the apparently growing reliance on contingent workers. But this kind of growth does not represent “job creation” in the conventional sense. Rather, it reflects the TSI’s acquired capacities in the redistribution and concentration of the effects of employment volatility, insecurity and precarity, mostly at the expense of marginalised and poorly paid workers.

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Fourth and finally, few staffing agencies, including industry leaders and multinational staffing corporations, have been able to develop enduring sources of competitive advantage that would allow them to defend gross margins during recoveries, much less during recessions. Put bluntly, following four decades of phenomenal, though turbulent, growth, the TSI remains on the low road, its national and multinational leaders being thrown into (price and wage) competition with smaller local players in the industry’s primary market segments of clerical and light industrial temping. Of course, some agencies have managed to identify and defend niche markets where margins can be maintained and where competition relies on differentiation in service provision to a greater degree than on the price of the service. But these niches remain few, and the landscape of temporary staffing is partially comprised of many formerly high-margin niches (such as accounting and information technology) that were quickly commoditised and now too are subject to intense price-based competition. As the US economy recovers from the 2007–2009 recession, it remains to be seen whether the TSI has either the will or the capacity to fundamentally alter the terms of its competitive structure, either by transforming its core relationships with employers, by erecting barriers to entry in protected market segments so as to enable quality- and service-based competition or by entering emerging markets (domestically or internationally) with significant growth potential. While the TSI’s cyclical recovery may indeed give way to a new round of secular growth, the entrenched price-based competition within the industry imposes stubborn limits on pay levels for its contingent workforce. Therefore, any deepening penetration of the TSI into US labour markets seems to be associated with wage stagnation, employment instability and insecurity, particularly for workers in low-wage occupations. In its 2008 annual review of the state of the temporary staffing business, on the eve of an employment crisis that would decimate the industry’s contracted-out workforce, the American Staffing Association boasted that the TSI “has become an integral part of the macroeconomy” (Berchem 2008: 16). This statement may be correct, but arguably not in the way that industry advocates contend. Worksite employers show no signs of lessening their reliance on no-strings-attached, temporary workers, particularly under what appear to be endemic conditions of economic uncertainty and volatility. But while contingent-workforce strategies of this kind may boost the short-run profits of worksite employers, while providing a convenient way to manage and right-size staffing levels, they are associated with far-reaching effects on the quality of employment contracts and the nature of labour relations. The uncoupling of the postwar social contract, under which the gains from productivity increases were shared with workers in the form of rising wages and employment stability, may have been associated with short-term savings. But over the long run such a narrow concern with headcount reductions and the bottom line seems set to undermine structural competitiveness. High-road strategies, in contrast, seek to enhance both productivity and

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flexibility by way of skills acquisition, innovation and investment. As it is presently constituted, the TSI is more likely to be an obstacle to, rather than an enabler of, such strategies.

BIBLIOGRAPHY Aaronson, D., Rissman, E. R. and Sullivan, D. G. (2004) Assessing the jobless recovery, Economic Perspectives, 28 (2), pp. 2–20. Alternative Staffing Alliance (2008) Jobs report: temporary jobs continue to decline, Alternative Staffing Report, October. Autor, D. H. (2003) Outsourcing at will: the contribution of unjust dismissal doctrine to the growth of employment outsourcing, Journal of Labor Economics, 21 (1), pp. 1–42. Autor, D. H. and Houseman, S. N. (2010) Do temporary-help jobs improve labor market outcomes for low-skilled workers? Evidence from “Work First,” American Economic Journal: Applied Economics, 2 (3), pp. 96–128. Berchem, S. P. (2004) The bright spot. Alexandria, VA: American Staffing Association. Berchem, S. P. (2008) Uncharted territory: annual economic analysis puzzles through the data and explains the trends. Alexandria, VA: American Staffing Association. Berchem, S. P. (2011) Leading U.S. job growth, Staffing Success, special issue, pp. 12–49. Brogan, T. W. (2001) Scaling new heights: ASA’s annual analysis of the staffing industry. Alexandria, VA: American Staffing Association. Cappelli, P. and Neumark, D. (2004) External churning and internal flexibility: evidence on the functional flexibility and core-periphery hypotheses, Industrial Relations, 43 (1), pp. 148–182. Coe, N. M., Johns, J. and Ward, K. (2008) Agents of casualization? The temporary staffing industry and labour market restructuring in Australia, Journal of Economic Geography, 9 (1), pp. 55–84. DeRemer, D., Fuhrer, J. C., Johnson, K, Sneddon Little, J., Raykov, R, Schuh, S., Tootell, G. M. B., Triest, R. and van Grondelle, A. (2004) Understanding the “job-loss recovery,” Public Policy Briefs, 04–1. Boston, MA: Federal Reserve Bank of Boston. Englelandt, A. and Riphahn, R. T. (2005) Temporary contracts and employee effort, Labour Economics, 12 (3), pp. 281–299. EuroCIETT (2007) More work opportunities for more people: unlocking the private employment agency industry’s contributions to a better functioning labour market. Brussels: EuroCIETT. Fisher, P., Ditsler, E., Gordon, C. and West, D. (2005) Nonstandard jobs, substandard benefits. Mount Vernon, IA: Iowa Policy Project. Freeman, R. B. and Rodgers, W. M. (2005) The weak jobs recovery: what ever happened to “the Great American Jobs Machine”? Economic Policy Review, 11, pp. 3–18. Golden, L. and Appelbaum, E. (1992) What was driving the 1982–88 boom in temporary employment? Preference of workers or decision and power of employers, American Journal of Economic Sociology, 51 (4), pp. 473–493. Gonos, G. 1998. The interaction between market incentives and government actions, in: Baker, K. and Christensen, K. (eds.) Contingent work: American employment relations in transition. Ithaca, NY: Cornell University Press. Goodman, C. J. and Mance, S. M. (2011) Employment loss in the 2007–09 recession: an overview, Monthly Labor Review, April, pp. 3–12.

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Gordon, J. (2008) The history of staffing, SI Review, 13 June, pp. 10–22. Gottfried, H. (1992) In the margins: flexibility as a mode of regulation in the temporary help service industry, Work, Employment and Society, 6, pp. 443–460. Hall, R. E. (2007) How much do we understand about the modern recession? Brookings Papers on Economic Activity, 2, pp. 13–28. Hatton, E. (2011) The temp economy: From Kelly Girls to permatemps in postwar America. Philadelphia: Temple University Press. Katz, L. F. and Krueger, A. B. (1999) The high pressure labor market of the 1990s. Working Paper No. 416. Princeton, NJ: Industrial Relations Section, Princeton University. Kilcoyne, P. (2005) Occupations in the temporary help services industry, in: U.S. Department of Labor, Occupational employment and wages, May 2004. Washington, DC: U.S. Department of Labor, pp. 6–9. Lambert, S. J. (2008) Passing the buck: labor flexibility practices that transfer risk onto hourly workers, Human Resources, 61 (9), pp. 1203–1227. Mehta, C. and Theodore, N. (2002/03) Paying the price for flexibility: unemployment insurance and the temporary staffing industry, Working USA, 6 (3), pp. 84–110. Moore, M. A. (1965) The temporary help service industry: historical development, operation and scope, Industrial and Labor Relations Review, 18 (4), pp. 554–569. Moss, P., Salzman, H. and Tilly, C. (2000) Limits to market-mediated employment: from deconstruction to reconstruction of internal labor markets, in: Carré, F., Ferber, M. A., Golden, L. and Herzenberg, S. A. (eds.) Nonstandard work: the nature and challenges of changing employment arrangements. Champaign, IL: Industrial Relations Research Association, pp. 95–121. Nash, B. J. and Romero, J. (2011) Flexible workforce: the role of temporary employment in recession and recovery, Region Focus, 15 (1), pp. 21–38. Ono, Y. (2009) Why do firms use temporary workers? Chicago Fed Letter, 260, March. Chicago: Federal Reserve Bank of Chicago. Peck, J. and Theodore, N. (1998) The business of contingent work: growth and restructuring in Chicago’s temporary employment industry, Work, Employment and Society, 12 (4), pp. 655–674. Peck, J. and Theodore, N. (2001) Contingent Chicago: restructuring the spaces of temporary labor, International Journal of Urban and Regional Research, 25 (3), pp. 471–496. Peck, J. and Theodore, N. (2002) Temped out? Industry rhetoric, labor regulation, and economic restructuring in the temporary staffing business, Economic and Industrial Democracy, 23 (2), pp. 143–175. Peck, J. and Theodore, N. (2007) Flexible recession: the temporary staffing industry and mediated work in the United States, Cambridge Journal of Economics, 31 (2), pp. 171–192. Peck, J. and Theodore, N. (2012) Politicizing contingent work: countering neoliberal labor-market regulation . . . from the bottom up? South Atlantic Quarterly, 111 (4), pp. 741–761. Peck, J., Theodore, N. and Ward, K. (2005) Constructing markets for temporary labour: employment liberalisation and the internationalisation of the staffing industry, Global Networks, 5 (1), pp. 1–24. Pollin, R. (2004) Deepening divides in the U.S. economy, 2004: jobless recovery and the return of fiscal deficits. Working Paper No. 82. Amherst, MA: Political Economy Research Institute, University of Massachusetts, Amherst. Rich, M. (2010) Weighing costs, companies favor temporary help, New York Times, 20 December, p. A1. Schreft, S. L. and Singh, A. (2003) A closer look at jobless recoveries, Federal Reserve of Kansas City Economic Review, Second Quarter, pp. 45–72.

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Schweitzer, M. (2003) Another jobless recovery? Cleveland, OH: Federal Reserve Bank of Cleveland. Segal, L. M. and Sullivan, D. G. (1997) The growth of temporary services work, Journal of Economic Perspectives, 11 (2), pp. 117–136. Silber, J. M. (1997) The temporary staffing industry: evolving toward the professional services model. New York: Gerard Klauer Mattison. Silber, J. M. (2008) 3Q08 staffing survey: poor trends continue while outlook worsens. New York: BMO Capital Markets. Silber, J. M. (2009) Jan. 2009 empl.: job losses increase; temp declines hit all-time lows. New York: BMO Capital Markets. Silber, J. M. (2012) The staffing indicator. New York: BMO Capital Markets. Standing, G. (2011) The precariat: the new dangerous class. London: Bloomsbury Academic. Stone, K. V. W. (2001) The new psychological contract: implications of the changing workplace for labor and employment law, UCLA Law Review, 48 (3), pp. 519–661. Theodore, N. and Peck, J. (2002) The temporary staffing industry: growth imperatives and limits to contingency, Economic Geography, 78 (4), pp. 463–493. Vidal, M and Tigges, L. M. (2009) Temporary employment and strategic staffing in the manufacturing sector, Industrial Relations, 48 (1), pp. 55–72. Vigna, P. and Shipman, J. (2010) Temp jobs gain as uncertainty reigns, Wall Street Journal, 27 July, p. B4. Vosko, L. F. (2000) Temporary work: the gendered rise of a precarious employment relationship. Toronto: University of Toronto Press.

NOTES 1. This research was supported by a grant from the Ford Foundation. 2. The data used for this analysis are for SIC 736—Personnel Supply Services.

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Power Politics and Precariousness The Regulation of Temporary Agency Work in the European Union Michael Wynn

1.

INTRODUCTION

The search for appropriate regulation of flexible labour in the European Union has been a contested terrain for decades. When Directive 2008/104/ EC on Temporary Agency Work was finally adopted on 22 October 2008 after ten years of stalemate and political wrangling between member states, it was hailed in some quarters as a positive landmark in the “flexicurity” debate1 by offering parity with permanent workers to many temporary agency workers. For some business lobbies, the reaction was more muted. In the UK there was concern that its £26.6 billion recruitment industry would be directly affected, with calls for its implementation to be pushed back to avoid putting jobs at risk.2 This chapter examines the phenomenon of law making from a social and institutional perspective. The role of government, national social partners and lobbyists for the temporary agency work (TAW) industry is examined in the process of deregulating and reregulating the labour market in the context of European liberalisation of agency working. The regulatory process has been characterised as a process of social construction whereby key players compete for regulatory space in the attempt to colonise areas of the labour market (Peck and Theodore 1998). The process of adoption and implementation of the European Directive on Agency Workers will be used to illustrate the dynamics of policy making in a key area of the construction of flexibility. In particular, this research focuses on a key player in this process, the UK government. At the periphery of Europe, more neoliberal economies such as the UK have resisted any attempt to disturb their highly deregulated labour markets, which have seen a massive expansion of the labour staffing industry. The chapter will trace the steps taken by the UK government to protect its own highly developed TAW industry by moulding the European regulatory framework to its own purposes. In this sense, this is a case study in the mechanics of the construction of a form of labour flexibility that does little to avoid precariousness for temporary agency workers and undermines their capacity for social reproduction.

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The chapter is structured in five sections. It begins by placing the Agency Directive in the EU regulatory context as the final part of a series of atypical directives adopted in the social policy framework of “flexicurity.” The second section provides a short sketch of working conditions of agency workers in the EU. The third section contains an account of the political processes which led to the final adoption of the directive by the European Parliament in 2008. The final two sections examine the directive itself and its implementation in the UK in the Agency Workers Regulations 2010. 2. THE LEGAL REGULATORY CONTEXT: THE EU ATYPICAL WORK DIRECTIVES AND “FLEXICURITY” The European Union, formed in 1952 to provide economic and political cooperation across the six original member states, has now developed into a comprehensive supranational legal system which has had an increasing impact on national legal systems. Its current membership is twenty-seven states. As the EU has grown in membership, increasing diversity across these different systems of industrial relations has meant that the process of political balancing to accommodate the various interests has become more complex. The regulatory context is also complicated by the fact that EU competence in the field of social policy is restricted. Treaty competences in the social field have been extended with the expansion of the internal market, notably by means of the Agreement on Social Policy in the Maastricht Treaty of 1992, which extended qualified majority voting (QMV) to working conditions3 and the introduction of an Employment Title in the Treaty of Amsterdam of 1997, whereby the Community was accorded the role of promoting a high level of employment and social protection. The introduction of the social dialogue process in the Agreement on Social Policy was also instrumental in extending law-making powers to the EU social partners. This process will be described in section four.

2.1

The Search for “Flexicurity”

The search for an appropriate regulatory tool to combine economic and social functions in a global competitive environment has fastened in EU social policy on the concept of “flexicurity.” The origins of the term can be traced to Dutch debates which resulted in a law on flexibility and security in January 1999 (Auer 2010). Using different techniques and policy mixes, social democratic countries such as Holland and Denmark combined high degrees of flexibility along with strong supportive measures in terms of social security.

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Flexicurity came to prominence in EU institutional language with the adoption of the European Employment Strategy (EES) in Luxemburg in 1997. This type of regulation adopted the open method of coordination, a technique involving the monitoring of employment policy at the European level through the use of country reports and benchmarks. The link between labour law and the EU flexicurity agenda was secured with the commission publication of the Green Paper, Modernising Labour Law to Meet the Challenges of the 21st Century, in 2006. This policy document noted the problem of segmentation arising from nonstandard forms of work. The European Expert Group on Flexicurity (2007: 5), which outlined four “flexicurity pathways” to encourage modernisation, specifically recommended the “reduction of asymmetries between standard and non standard contracts by integrating non standard contracts fully into labour law” on the equality principle. A crucial question is the extent to which the precise flexibility pathways chosen by member states are compatible with sustainable social reproduction and avoid contributing to the growth of precarious employment. Flexicurity has been defined as “a policy strategy that attempts to enhance the flexibility of labour markets, work organisation and labour relations on the one hand, and to enhance security—employment and social security—notably for weaker groups . . . on the other hand” (Wilthagen and Tros 2004: 169). Labour market adjustment aims at increasing both dimensions of the flexibility-security nexus simultaneously (Burroni and Keune 2011: 75). The fusion of two opposing concepts can lead to ambiguity, but by the same token, it can be instrumental in recognising divergent interests. As a procedural device, flexicurity often uses soft law mechanisms such as social dialogue and the open method of coordination to achieve acceptable political compromises (Rogowski 2008). In substantive terms, the flexicurity agenda consists of multiple overlapping policies and practices rather than a single strategy. The protean nature of the project allows the EU to develop the European social model by reshaping existing normative structures. Flexicurity has been described as “a project to create a new normative field . . . which challenges existing policy separations of employment and social security” (Fudge forthcoming: 3). Examining flexicurity as a social construction whereby different actors and institutions engage in different processes can help identify how differences in power relationships determine positions and outcomes (Fudge forthcoming: 3). The case study that follows investigates a struggle for different versions of flexicurity in terms of the negotiations in the multigovernance structures of the EU in the process of drafting and implementing the Agency Workers Directive. What is notable in this process is that the “search for institutional complementarities” at the EU level by means of the flexicurity concept does not always produce the desired results (Burroni and Keune 2011: 82). There may be a number of reasons for this. One is that this type of market coordination is subject to unpredictability arising from the behaviour of the actors.

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Another factor is institutional—processes of achieving consensus are problematic in those countries like the UK where the collective mechanisms for concluding consensual agreements are lacking (Burroni and Keune 2011: 85).

2.2

The Atypical Directives

The European Directive on Temporary Agency Work originated in a set of directives concerning atypical work, which were proposed by the European Commission after the Community Social Charter in 1989 identified a need for regulation of nonstandard contracts. Directive 97/81/EC on Part Time Work and Directive 99/70/EC on Fixed Term Work were the early progenitors of the regulation of temporary workers. The method chosen by the EU to attain flexicurity objectives can be seen most clearly in this group of directives. Flexicurity is not explicitly mentioned as a goal until the Agency Directive, but the earlier directives both refer to flexibility and security balancing. While the directives attempt to address labour market segmentation associated with different forms of atypical contract (Fudge forthcoming: 4), the EU never questioned the legitimacy or existence of atypical work (Countouris 2007: 208). The atypical directives (and particularly the Agency Directive) adopt reflexive law-making techniques in that member states and social partners are given opportunities to decide on levels and scope of implementation. This means that the impact of the directives on each member state will depend on their own labour institutions and traditions (Kitschelt et al. 1999). The legal method adopted in the atypical directives is to use a principle of equality to promote comparison between atypical and full-time workers and to permit adjustments to the level of protection to allow flexibility. In flexicurity terms, the “equal treatment” formula is “ideally suited to broker a Social Dialogue agreement that satisfied opposite and in principle conflicting needs” (Countouris 2007: 209). However, the equality approach may not achieve parity between standard and nonstandard forms of employment, and the addition of an open textured formula, such as flexicurity, may result in further segmentation rather than convergence. The earlier directives are clearly “infused with flexibility,” but job security is not promoted (Bell 2012: 38). This is in line with the flexicurity agenda of promoting employment rather than job security. The Agency Worker Directive adopts the same regulatory template as the earlier directives, but, here, the equality principle is subject to further substantial derogation.

2.3

The Influence of the ILO

A further influence in the liberalisation of European labour markets is the ILO Private Employment Agencies Convention, adopted in 1997.4 The stated purpose of the convention is a balancing one: “to allow the operation

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of private employment agencies as well as the protection of the workers using their services,”5 thus fulfilling a facilitative as well as a protective role. The convention provided an early impetus towards the legitimation of the purposes of the private intermediary and a legislative template for the regulation of commercial relationships in employment. For example, the functions of agency, user and worker were all defined in very broad terms.6 The convention adopts many of the mechanisms that are also embedded in the atypical worker directives—for example, the nondiscrimination principle and the exclusion of certain categories of workers from protection. Commentators have noted the ILO’s liberalisation agenda with regard to agency working. Standing (2008: 366) observes that by signalling a major change of policy direction with this convention, the ILO was “in tune with the privatisation agenda of supply side economics,” thus reinforcing market models of labour market regulation. The ILO was aided in its task of liberalisation of the TAW industry by EuroCIETT, the employer-side social partner, who played a part in drafting the convention (Jones 2002: 188). 3.

TEMPORARY AGENCY WORK IN THE EU

In 2009, the total number of agency workers worldwide amounted to approximately nine million in full-time equivalents. Europe accounts for 34 per cent of this total. The UK is the world’s third-highest supplier of agency workers (1.07 million), Germany is sixth (900,000) and France is eighth (450,000). Europe accounts for 40 per cent of global total annual sales revenues of 203 billion Euros in 2009, with the UK again leading in Europe with 12 per cent of the global agency market (EuroCIETT 2011). Although the agency work sector is highly heterogeneous in Europe, the European Parliament has reported increasing precarious employment associated with atypical contracts. In 2011, a Parliamentary Committee report on atypical contracts, Secured Professional Paths, Flexicurity and New Forms of Social Dialogue,7 noted that “very atypical” forms of employment have been emerging (i.e. employment contracts shorter than six months, working hours less than ten hours and nonwritten employment contracts). These workers receive less training and have more limited career prospects and lower income. A European Parliament resolution of 19 October 2010 on precarious female workers8 pointed out the gendered nature of precarious work associated with nonstandard employment, noting in particular the high incidence of migrant women taking low-skilled temporary jobs on the periphery of the labour market. The duration of assignments varies considerably across member states. For example, one study indicates the average length of assignment in France is nine and a half days, in Germany 15 per cent of assignments last only a few days, in Italy 66 per cent are less than a month and in Spain nearly onethird of assignments are less than a week (Arrowsmith 2006). Competitive

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strategy may account for high turnover as member states compete for market share. Agency workers are limited not only by the fluctuations in hours as a result of the temporary nature of the work. Apart from the notable exception of Sweden, agency workers in Europe generally work less than 50 per cent of the hours worked by full-time employees (EuroCIETT 2011). Thus earning capacity is limited. While collective agreements often determine conditions and pay in the “old” member states, the newer member states have virtually no arrangements for collective bargaining in the regulation of TAW. The UK is also in this category. Even in those countries where trade union organisation exists for agency workers (e.g. Belgium, Denmark, Finland and Sweden), the high employment turnover and low union membership means a double representation gap with agency and user firm (European Foundation for the Improvement of Living and Working Conditions 2008). The profile of many agency workers may also add to the precariousness of their employment. In most EU countries, agency workers are younger than other workers. In Spain, 84 per cent of all agency workers were under the age of thirty-four. In the UK, the average is thirty-two years. This pattern is repeated in Denmark, Finland, France and Sweden. The lower level of educational qualifications of agency workers adds to these vulnerabilities. For example, 5.7 per cent of all German temporary agency workers did not have a school-leaving qualification, and only 13.2 per cent held a university degree. This trend is repeated in Finland, France, Netherlands and Sweden (Trade Union Congress 2005). 4.

LEGISLATIVE PROGRESS OF THE EUROPEAN DIRECTIVE

The ordinary legislative procedure of the EU, formerly the co-decision procedure, provided under Article 289 of the Treaty on the Functioning of the European Union (TFEU), involves the European Parliament (EP) and the European Council acting on legislation proposed by the commission. As defined under Article 294 TFEU, it is based on the principle of parity and means that neither institution may adopt legislation without the other’s consent. Parliament and council adopt legislation at first or second reading, and if no agreement is reached, a conciliation committee is convened. Qualified majority voting applies to all matters relating to industrial relations and employment under Article 153(1) TFEU. Votes in the council are weighted in accord with size of population. A blocking minority must include at least four member states. A further type of legislative procedure under Article 154 and 155 TFEU involves the social dialogue process whereby the social partners at the European level, the European Trade Union Confederation (ETUC9) and Business Europe, formerly the Union of Industrial and Employers Confederations of

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Europe (UNICE10), can produce European legislation by concluding framework agreements which are implemented by European directives. What follows is an account of the processes that led to the final adoption of Directive 2008/104/EC.

4.1

Interprofessional Negotiations

The legislative process of the directive began with a process of social dialogue in 2001. When UNICE and ETUC began negotiations in pursuit of an agreement on temporary agency labour, the differences between the two professional bodies could not have been more pronounced. Whereas ETUC’s mandate was to limit the use of TAW and ensure that permanent contracts were not circumvented by the spread of agency labour, UNICE had a promotional aim for TAW as a key institution of an efficient labour market. The standoff resulted in stalemate, and on 21 May 2001, UNICE declared that the talks had broken down. UNICE’s strategy had been to limit the scope of the equality comparison between agency workers and permanent workers by insisting that the definition of “comparable worker” should be a matter of national law. ETUC wanted a robust comparison on the basis of permanent workers in the user enterprise on all basic employment conditions (Jones 2002). Only on this basis would the equality formula provide true parity between temporary and permanent workers. UNICE refused to compromise, fully realising the huge cost implications of ETUC’s position. This initial failure was followed by sectoral dialogue between EuroCIETT, the European Confederation of Private Employment Agencies, and UNI-Europa, the EU-level union representing agency workers. They issued a joint declaration of common objectives on 8 October 2001, affirming the application of the principle of equal treatment in the triangular relationship between worker, agency and end user. The declaration was promotional in nature, requesting member states to review legal and administrative obstacles to the development of TAW, thus endorsing Community employment policy. EuroCIETT, as a European industry lobbyist representing the interests of seven of the largest multinational staffing companies worldwide (Adecco, Kelly Services, Manpower, Randstad, USG People, Edior and Allbecon Olympia), has been adept at “tailoring its message to policy audiences in Brussels and Geneva” (Peck, Theodore and Ward 2005: 6). An example is the promotional document on flexicurity, At the Heart of Flexicurity (EuroCIETT 2007). Such documents mirror the language of the commission in showing how the growth in agency workers facilitates transitions from unemployment to work, from education to work and from household to work, thus enhancing employability of workers and providing training opportunities (EuroCIETT 2007: 3–4). By presenting the case for agency work in terms

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of job opportunities rather than business opportunities for the intermediary industry, supply-side arguments, in effect, disguise the demand-side interests of its members.

4.2

Commission Intervention 2002

In the event of breakdown of the European social dialogue process, the European Commission is authorised to take on a legislative role. Thus, in March 2002, after impasse between the social partners had been reached, the European Commission intervened and presented a directive proposal (European Commission 2002). The commission justified its proposal on the basis of improvement of working conditions under Article 136 of the treaty and the promotion of the temporary work sector. The aim was to “extend the principle of non-discrimination between temporary agency workers and comparable workers of user undertakings, already in force in nine Member States” (European Commission 2002: 10). A further justification was the “expansion of the sector” giving “more choice to user firms on the basis of access to a larger pool of applicants” (European Commission 2002: 10). This choice would be made possible by removing existing restrictions and limitations on the use of TAW. The directive itself proposed a review mechanism for the removal of restrictions on temporary work in Article 4, in effect requiring member states to review and open up unnecessary restrictions on agency workers. The equality clause embedded in Article 5 adopted the stance taken by ETUC rather than UNICE—i.e. a comparable worker in the user undertaking—in terms of basic working and employment conditions. This initial protective measure was, however, undermined by a series of exceptions: first, where workers were paid between assignments (Art. 5(2)); second, derogation via collective agreements (Art. 5(3)); and third, for assignments of less than six weeks (Art. 5(4)). These exceptions, particularly the six-week grace period, opened the doors to a considerable dilution of the principle of equality. Despite these considerable concessions to the industry itself, the reaction from business was vociferous. UNICE wanted a qualifying period of six months, and the Confederation of British Industry (CBI) in the UK called for a lengthy period of “at least eighteen months.” The commission proposal in 2002 was followed by a period of intense lobbying by the CBI. In particular the CBI objected to the overly prescriptive effect of user comparisons. The CBI was of the view that member states should be free to choose between agency and user comparisons. They argued that, in the UK (and in other member states), the agency worker’s primary relationship was with the agency, so user companies were not privy to details of an agency worker’s terms and conditions and would not be willing to share confidential information with third parties (Confederation of British Industry 2002: 2). They were concerned about the knock-on effect of such comparisons: user

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comparisons would “introduce an unprecedented requirement for equal treatment between staff working for different employers” (Confederation of British Industry 2002: 2). The lobbying stance taken up by both UNICE at the European level and the CBI in the UK indicate that the employer side was concerned that a comparison between user and agency would inhibit the ability of the industry to maintain pay differentials between permanent and temporary workers.

4.3

EU Parliament Amendments

The commission consulted with a number of EU institutions on its social policy proposals under Article 137 TFEU. In September 2002, the European Economic and Social Committee (EESC) considered the draft directive and adopted an opinion, which was strongly critical of the commission’s provisions on nondiscrimination (European Economic and Social Committee 2002). The committee regretted that the derogations provided in Article 5 “effectively cancelled out the principle of non-discrimination.” The commission proposal was subject to the co-decision procedure, which gives Parliament co-legislative powers with the council. At the first reading in November 2002, Parliament proposed a number of significant amendments (European Parliament 2002, Amendments, Art. 5.1). It recommended a much more pro-business formulation of the equality clause by deleting the commission’s definition of comparable worker in the user enterprise and substituting the idea of a “worker directly employed by the user enterprise to perform the same or similar work” (European Parliament 2002, Amendments 15, 87, Art. 5.1). This key change in the comparator formula and other amendments were the result of Parliament’s attempt to engineer a consensus among member states and to appease both member states and UNICE by narrowing the scope and application of the nondiscrimination clause (Vosko 2009: 403). A further complication was the growing recognition that triangular relationships in agency work involved a more complicated equation than other forms of temporary work. The report by the Committee on Employment and Social Affairs prepared for the European Parliament notes that user undertakings in different member states use temporary agency workers for different purposes. If a user wishes to have the flexibility to hire different categories of flexible labour for different jobs and is already hiring, for example, fixed-term workers at different rates, he or she will want a comparison with these directly recruited workers rather than his permanent employees (European Parliament 2002: 37). Parliament also introduced other diluting amendments11—for example, a clause making explicit that the only possible justifications for restrictions on TAW were for reasons of health and safety at work, the proper functioning of the labour market and the need to prevent abuse (Amendment 34) and

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limiting nondiscrimination to basic statutory employment rights (Amendment 37). This policy of appeasement prepared the way for final acceptance of the proposed directive, but at substantial cost in terms of reduced worker protection. The amended draft EU directive was accepted by the commission, and the new text was transmitted to Parliament and the council on 28 November 2002.

4.4

Blocking by UK and Allies

Despite the concessions adopted in the new text by the commission, the UK government remained firmly opposed to the directive. The government position was set out in a Department of Trade and Industry (DTI) memorandum in January 2003: The Government remains concerned that the Directive risks decreasing the attractiveness of agency workers to user companies, which might reduce the number of jobs available. It is necessary that the Directive is suitably flexible to accommodate UK practices. (Department of Trade and Industry 2003) The next phase in the legislative process witnessed a prolonged period of blocking further progress by a minority of member states. The directive could only be passed by a qualified majority vote. The UK therefore assembled a blocking minority of Denmark, Germany, the UK and Ireland which repeatedly blocked the proposal between 2002 and 2007. Each country had its own reasons, reflecting its particular traditions and markets. Denmark was resistant to any intervention that curbed its flexible labour market. Germany was similar to Denmark but wanted to exempt workers who were paid between postings. The UK and Ireland wanted a qualifying period. In addition, Sweden wanted to make derogations through collective agreements (Vaes and Vandenbrand 2009: 13). At the EU Council Employment and Social Policy meeting in Luxemburg in June 2003, ministers failed to reach agreement on a common position on the draft directive. The main obstacle was that the blocking minority refused to accept a transitional period of five years after the date of implementation during which an exemption to the principle of equal treatment would be granted. They maintained that this exemption should be permanent. Successful government lobbying was used to both maintain a deregulatory stance towards the content of the directive and to influence a sufficient minority of governments to block further progress until further concessions had been secured. Political trading at this point relied on trade-offs between

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different legislative measures: Germany traded its support for the UK in return for blocking of EU legislation on codetermination (Vosko 2009: 403). This stance was maintained despite the fact that the amended directive would in reality require only very limited changes in the regulatory frameworks in most EU countries on TAW as it largely codified rules which were already enshrined in legislation or collective agreements in these countries (European Commission 2002: 29; Arrowsmith 2006). Towards the end of a long period of stalemate, the UK government’s negotiating position started to soften. The key issues in the negotiations were set out by Pat McFadden, minister of state at the Department for Business, Enterprise and Regulatory Reform, in giving evidence to the European Scrutiny Committee on the draft directive on 11 July 2007 (Keter 2008: 18). Three contentious areas were identified. First, the UK system did not have mechanisms for derogation through trade union negotiation by means of collective agreements. Second, the UK’s liberal labour law and policy regime accepted agency work as a legitimate practice and needed to defend its interests at home and abroad. Third was the issue of the qualifying period. The UK government was under domestic pressure from its own back benchers as the result of a private members bill,12 introduced by Andrew Miller MP early in 2007, which added impetus to resolve the TAW issue at the European level.

4.5

Breaking the Deadlock

The deadlock on progress of the directive was finally broken as a result of a combination of political factors in 2008, changing alliances and motivating further legislative trading. Two particular events were crucial in providing the impetus for breaking the deadlock. The lynchpin of the unlocking process was a proposal put forward by the Portuguese presidency to twin two directives, both of which had been blocked by the UK government for many years (Keter 2009). The EU Council wanted to reach political agreement on these two directives, the first amending aspects of the organisation of the Working Time Directive 2003/88/EC, and the second regulating agency workers. Balanced solutions concerning these legislative files became a priority in 2007. The UK, in its mission to maintain a neoliberal economy, was insisting on maintaining both functional flexibility in terms of working time and numerical flexibility through the use of agency workers. These two matters came to a head as a result of a threat to abolish the UK individual opt-out on working time under Article 18 of the Working Time Directive (93/104/ EC), when the European Parliament voted to phase it out after the commission initiated a consultation process reviewing the opt-out in 2004. The UK had the support of Germany and Poland in maintaining its opt-out but feared that it could lose the exemption, particularly in view of strong French resistance led by Jacques Chirac, the French president. The battle over these

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issues had in one sense become totemic, a fight over rival versions of the European social model. In view of these difficulties, the Portuguese presidency, at a meeting of the EU Council on 5 December 2007, suggested the unusual tactic of discussing the two directives together. The idea of seeking a simultaneous and integrated solution to enable member states to find a balance on two central aspects of the regulation of a flexible labour market in Europe that would be politically acceptable, in the event, was a winning combination (European Council 2007). In simple terms, the proposal was to allow the UK to retain its opt-out on working time in return for giving agency workers employment rights after approximately six weeks. QMV was required for a council decision. The UK government had never wanted the two directives to be taken as a package and was forced to rely on assembling a blocking minority, where Polish and German support was crucial. However, the UK became isolated when the government of Poland changed and stated it would support the proposal and Germany then signalled that it might make an agreement. Faced with defeat at member state level, the UK was then forced to take steps to preempt the implementation of the directive (Open Europe 2008).

4.6

The UK TUC/CBI Agreement of May 2008

Isolation at European level left the UK government with a final option of seeking domestic support. The government therefore summoned its own social partners, the CBI and the Trades Union Congress (TUC), to a meeting in May 2008. The idea was to manufacture a domestic political agreement and then use this to persuade member states to adopt a diluted version of the agency directive. The meeting in May 2008 produced a joint declaration by the government, CBI and TUC on the treatment of agency workers (Department for Business Enterprise and Regulatory Reform 2008b), which resolved a number of issues which had been stalling progress on the directive. The tripartite agreement was crucial in two respects: first, it paved the way for political agreement at the European level on the two linked dossiers of TAW and working time; secondly, it enabled the UK government to solve the flexibility question through a domestic agreement with its own national social partners. The result is a unique example of national social dialogue in the UK feeding into European law making, as the UK has no institutionalised machinery for such dialogue. The agreement secured a number of major derogations from the principles of the directive, enabling the UK to undermine European norms with its own diluted version. The key concession was a twelve-week qualifying period for equal treatment under the directive. This alone enabled the UK to exclude from access to protection of the directive over 55 per cent of its temporary

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agency workers (Department for Business Enterprise and Regulatory Reform 2008a). The agreement also secured the limited comparator formula to enable comparison with temporary employees rather than the end user’s workforce: the definition of equal treatment was confined to “the basic working and employment conditions that would apply to the workers concerned if they had been recruited directly by that undertaking to occupy the same job” (Department for Business Enterprise and Regulatory Reform, 2008b). Occupational social security schemes were excluded. The CBI/TUC agreement had in fact given very few protections to British temporary agency workers. Instead, it had protected the UK agency industry from a rigid application of European law. The CBI’s deputy director-general, John Cridland, commented: There has been a major risk of damaging legislation coming from Brussels, and the CBI has judged that the government’s proposals represent the least-worst outcome available for British business. (Guardian 2008) Having secured this domestic-level agreement, the UK then had to convince its European counterparts. On 9 June 2008, a political agreement was achieved by qualified majority on both outstanding dossiers. Spain and Greece voted against, and Belgium, Cyprus, Malta, Portugal and Hungary abstained (Keter 2009: 11). This opposition was primarily because of opposition to the opt-out position that the UK had secured. This was not the end of the story. The UK had managed on 9 June to get a change agreed in council that allowed the directive to be qualified by national agreements with the social partners, but the proposals were now subject to a process of co-decision subject to the agreement of the European Parliament. This meant that the government now had to “argue the case energetically with MEPs for the merits of the texts agreed in Council” (House of Lords 2008a). It was important to keep the texts agreed on both directives intact as failure to get agreement in the European Parliament would result in a process of conciliation which might collapse the gains secured in council. In the event, the Agency Workers Directive passed following a final vote in the European Parliament on 22 October 2008. As Pat McFadden, the minister of state, explained to the Select Committee on the European Union: What it shows us is how the domestic process and the European process have knitted together here . . . we were able to reach a domestic conclusion, the validity of which was then recognised in the European Directive, thereby removing . . . the danger that the domestic agreement would simply be turned over by a Directive doing something different. (House of Lords 2008b)

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5. THE EUROPEAN DIRECTIVE ON TEMPORARY AGENCY WORK Council Directive 2008/104/EC on Temporary Agency Work when it emerged from the European legislative process after nearly three decades of debate, and dogged by opposition, barter and political manoeuvre, was a different instrument from the one originally envisaged. Exposure to powerful political interests including both professional lobbying groups and governments had resulted in a process of attrition whereby the key equality protections had been seriously diluted. The key protection, the equality clause in Article 5(1), is a much-denuded version of the original formula. The comparison of “basic working and employment conditions” with workers “recruited directly by the user undertaking to occupy the same job” allows the user firm to compare the temporary agency worker with other temporary workers rather than permanent workers, so equality might become an instrument of further segmentation rather than promoting true parity with permanent workers. Article 5 is then subjected to a series of derogations whereby equality can be adjusted by national or sectoral social partners to suit different social models. Article 5(2), or the “German derogation,” states that agency workers who have a permanent contract with the agency and are paid in between assignments can be treated differently. There are no restrictions on rates of pay. German companies may pay reasonable rates, but other member states may use this derogation to undercut wage rates. Article 5(3), or the “Nordic derogation,” authorises member states to permit social partners to make derogations by collective agreement as long as they “respect overall protection of temporary agency workers.” The commission has given no clear explanation of “overall protection.” For example, a pay cut in return for enhanced training might contribute to a worker’s employability, but at what price has the departure from equality been achieved? Again, such bargained solutions may allow opportunities for serious levelling down. Article 5(4), or the “British derogation,” permits member states with no machinery for national extension of collective agreements to agree to derogations after consulting with national social partners. This derogation contains the formula which the UK government secured through the TUC/ CBI Agreement of May 2008. Article 5(4) specifically permits a qualifying period for equal treatment and allows member states to specify whether occupational social security schemes, including pensions and sick pay, are included in basic working conditions. The only qualification is that member states should take steps to “prevent misuse of the Article and in particular to prevent successive assignments being used to circumvent the provisions of the Directive” (Article 5(5)). The overall promotional tenor of the directive is illustrated by Article 4: “Prohibitions or restrictions on the use of temporary agency work shall be

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justified only on grounds of general interest relating in particular to the protection of temporary agency workers, the requirements of health and safety at work or the need to ensure that the labour market functions properly and abuses are protected.” Article 4(2) directs member states to review any restrictions on the use of TAW in order to “verify whether they are justified on the grounds mentioned in Article 4(1).” It is a matter of conjecture whether Article 4 is purely deregulatory or not (Countouris and Horton 2009). It is assumed that the improvement of general levels of protection under the directive will obviate the need for former restrictions on the use of temporary agency work. Nevertheless, more deregulated environments such as the UK will have little to review, whereas the more highly regulated environments such as France and Germany will have to deregulate in order to comply. A further example of the flexicurity objectives of the directive appears in Article 6, which aims to promote transitions of temporary workers into stable employment. Article 6(2) enhances security by promoting employment contracts between end users and agency workers on the conclusion of temporary assignments, but this provision is then undermined by a subparagraph which allows the agency to receive “a reasonable level of recompense” for services rendered to the user. Once again, flexicurity appears to be a double-edged sword. The scope of the directive outlined in Articles 1 and 3 allows further commercialisation and deregulation of the employment relationship. Article 1 confirms that a temporary worker may have no contract with either agency or user as the user’s function is defined as “supervision” and the agency may have a contract of employment or “employment relationship” with the temporary worker. Article 3 gives very broad definitions of the temporary work agency, allowing for expansion of the intermediary function. Equal treatment is only extended to “basic working and employment conditions,” a much narrower scope than the previous atypical directives. And crucially, the legal status of the temporary agency worker remains undefined and is left to national law, thus failing to resolve the complexity and uncertainty that has bedevilled English temporary agency workers over the last twenty years (Leighton and Wynn 2011). 6.

THE UK AGENCY WORKERS REGULATIONS 2010

Having lobbied for a diluted version of the directive, the UK government’s implementation in the Agency Workers Regulations,13 which came into force in October 2011, enabled further tailoring to the needs of its own specialised industry. In business terms, the government had achieved precisely what it wanted— i.e. the preservation of its highly flexible, lightly regulated agency workforce

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at minimum cost to the staff hiring industry, thus enabling it to maintain its competitive advantage. The regulations, despite giving the appearance of a protective framework for temporary agency workers, in fact achieve the opposite. The UK has in effect designed its own version of “flexicurity” which has removed security from the most vulnerable workers—i.e. those who perform successive short-term contracts on a regular if intermittent basis. In considering the impact of the 2010 regulations, bear in mind that TAW in the UK is much less regulated than in the rest of mainland Europe. As Hepple (1999: 381) has observed: “A distinctive feature of UK regulation is that it is not limited to those supplying workers for a limited period, nor are there any restrictions on the period of assignment or renewal . . . In contrast with many other EU states, the UK agency or business may deal, without restriction, with ‘temporary’ or ‘permanent’ workers who may or may not be employed by the agency or business.”14 The UK uses approximately 1.3 million agency workers, which comprises about 4.5 per cent of the total UK workforce (Department for Business Innovation and Skills 2010b). Many agency workers will have no contract with either agency or end user and limited access to trade unions or any form of legal representation. Migrant workers are over-represented in this labour market and are more likely to be employed on short-term assignments. Current estimates indicate approximately 31 per cent of agency workers are in minority groups (Department for Business Enterprise and Regulatory Reform 2008a). According to one survey, approximately 60 per cent of agency workers chose temporary work because they could not find another job, and some 38 per cent were found to have still been in agency work one year after they began (Department for Business Enterprise and Regulatory Reform 2008a). These figures indicate that the UK has an extensive agency workforce, in fact the largest in Europe, large sections of which may be marginalised and often tied into temporary working. This flexible environment lends itself to the use of a secondary or tertiary workforce which can be transferred swiftly and without penalty to different job functions and different employers. One of the avowed purposes of the European Directive was to prevent abuses arising from this type of employment. The UK Regulations, however, in providing an attenuated form of “parity” to such workers, may entrench further those management practices which cause such exclusion and thus increase precarious employment. The British derogation secured in Article 5(4) of the directive, as implemented in Regulation 7, provides enormous scope for evasion of the basic equality protections. Take, for example, the twelve-week qualifying period. In order to qualify for rights under the regulations, the agency worker must “work in the same role with the same hirer for 12 continuous calendar weeks” (Reg. 7(2)). The

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worker does not qualify for “the same role” if she or he starts a new role with the same hirer which involves “substantively different work or duties” (Reg. 7(3)). In addition, a break of six weeks between assignments with the same hirer will break the qualifying period (Reg. 7(8)(a)). This set of provisions will clearly allow rotation of workers on short-term assignments between different jobs in order to ensure that they never complete the qualifying period. Trade unions opposed these provisions on the grounds that they would encourage manipulation by unscrupulous employers (Department for Business Innovation and Skills 2010a: 22–24). The government reacted to TUC concerns by introducing a targeted anti-avoidance measure in Regulation 9 which gives a right to equal treatment where a “structure of assignments” develops. Thus where a temporary worker has worked in more than two roles during an assignment and on at least two occasions has worked in a different role from the previous role, he or she will be entitled to be treated as qualifying (Reg. 9(3)(c)) if “the most likely explanation” is that the hirer is trying to prevent entitlement (Reg. 9(4)). This measure may prevent clear abuse involving multiple rotation or successive eleven-week assignments broken by periods of over seven weeks; however, the guidance to the regulations points out that there would need to be a “deliberate and regular pattern designed to avoid the Regulations” (Department for Business Innovation and Skills 2011: 17). The fact that such detailed anti-avoidance measures needed to be inserted in the regulations at the insistence of trade unions begs the question as to whether the design of the UK regulations actually encourages managerial strategy involving worker rotation and short term-ism. A further consideration is cost. If agency workers were entitled to parity on the first day of their assignment and this were to apply to an estimated 1.3 million agency workers in the UK, the cost in increased wages would need to be met by employers. The Impact Assessment on the regulations carried out by BIS stated that implementation of the directive would provide an incentive to hirers to switch towards greater use of short-term agency working (i.e. assignments less than twelve weeks) in an attempt to minimise costs.15 Currently, around 20 per cent of assignments last between three and six months. Potential switching could substantially increase the numbers of unprotected agency workers (Department for Business Innovation and Skills 2010b: 8–9). Employment agencies will generally pass on increased costs in the form of higher fees charged to the hirer. Hirers may react by decreasing assignment length and introducing consecutive shortterm assignments. The risk of incurring a fine of an additional £5,000 for breach of Regulation 9 may be a cost that is outweighed by the substantial benefits of worker rotation. A further tactic might simply involve finding other cheaper workers or switching to permanent workers. Research by the Recruitment and Employment Confederation (REC), asking employers how their current use of agency workers would be affected if costs were increased by 25 per cent, found that some 37 per cent of employers would

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stop using agency workers altogether, while a further 36 per cent said they would reduce their use (Department for Business Innovation and Skills 2010b: 25). Those workers who qualify for rights under the regulations will gain certain limited entitlements. The main benefit apart from the potential elimination of any basic pay differentials is to allow comparison with basic employment conditions of an appropriate direct recruit. The equality clause in Regulation 5 states that: an agency worker (A) shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer. Basic working conditions are ones that are “ordinarily included in the contracts of employees of the hirer” (Reg. 5(2)(a)). These include pay, working time, night work, rest breaks and annual leave (Reg. 6). However, as the scope of comparison has been limited to the terms of similarly recruited workers by the hirer, hirers will be able to minimise costs by providing comparators who are already treated less favourably than the hirer’s permanent workforce. Once again, the regulatory model has provided an incentive for inequality as astute employers will simply arrange and maintain segmented workforces on different terms and conditions. Equal treatment does not apply to terms that are not “basic terms” and will not apply where the firm has devised complex structures so that there are no terms to compare because no terms “apply generally” across the workforce. If an agency worker is a unique hire and no terms apply generally, because the employer has no pay scales or collective agreements or a “going rate,” the agency worker will have difficulty in finding a comparator. Estimates of pay provided by the BIS Impact Assessment indicate that median hourly earnings for full-time agency workers were approximately £6.5816 compared with £8.33 for permanent employees of less than two years, a pay gap of about 80 per cent, or £1.75 an hour (Department for Business Innovation and Skills 2010b: 12). The pay gap is smaller in some sectors—e.g. transport (91 per cent)—and larger in others—e.g. business (68 per cent). However, there is no real difference in earnings of part-timers, and in some sectors part-timers earn more than their permanent counterparts, particularly in business, health and education. In terms of potential uplift, the greatest potential impact of the directive appears to be on fulltime male workers, as they have a greater differential at 75 per cent of the comparator level compared with 86 per cent among women (Department for Business Innovation and Skills 2010b: 36). “Pay” is defined narrowly in the regulations to exclude many elements of a modern benefits package. These exclusions apply to occupational sick pay, pensions, maternity and paternity pay, redundancy and notice pay, financial participation schemes and any bonus related to work done rather than

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loyalty or long service (Reg. 6(3)). These exclusions, justified by the government on grounds of the subsidiarity principle embodied in the directive, will encourage user firms to create complex and less transparent pay structures in order to reduce wage costs. And finally, it should be reiterated that neither the directive nor the regulations have done anything to solve the problem which perpetuates the vulnerable position of most British agency workers, which is the lack of any clarity as to their contractual status. 7.

CONCLUSION

This case study highlights the limits of law in protecting labour interests in current global conditions. The concept of flexicurity is potentially a dynamic policy instrument, capable of transforming current models of labour flexibility by creating new modes of labour market participation. However, any changes in labour regulation are mediated through political and institutional machinery (Cousins 1999). Thus the extent to which European social policy concepts, such as flexicurity as implemented in legislative initiatives like the Agency Directive, will result in precarious or stable employment in any particular jurisdiction will depend on many factors, including the relative strengths of management and labour. The UK experience indicates that neoliberal models may be more resistant to the employee protective aspects of the flexi-security nexus, with the result that labour markets become more polarised, with those at the bottom end in highly precarious positions. The warning for policy makers is that even in market efficiency terms, this is not a long-term option because it undermines the possibility of social reproduction by these workers, unless this is counterbalanced by much stronger welfare intervention. BIBLIOGRAPHY Arrowsmith, J. (2006) Temporary agency work in an enlarged European Union. Dublin, Ireland: European Foundation for the Improvement of Living and Working Conditions. Auer, P. (2010) What’s in a name? The rise (and fall?) of flexicurity, Journal of Industrial Relations, 52 (3), pp. 371–386. Bell, M. (2012) Between flexicurity and fundamental social rights: the EU Directive on atypical work, European Law Review, 37 (1), 31–48. Burroni, L. and Keune, M. (2011) Flexicurity: a conceptual critique, European Journal of Industrial Relations, 17 (1), pp. 75–91. Confederation of British Industry (CBI) (2002) Parliamentary brief on COM (2002) 149 to European Parliament, May 2002. Countouris, N. (2007) The changing law of the employment relationship—comparative analyses in the European context. Aldershot: Ashgate Publishing.

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Countouris, N. and Horton, R. (2009) The temporary agency work directive: another broken promise? Industrial Law Journal, 38 (3), pp. 329–338. Cousins, C. (1999) Changing regulatory frameworks and non standard employment: a comparison of Germany, Spain, Sweden and the UK, in: Felstead, A. and Jewson, N. (eds.) Global trends in flexible labour. Basingstoke: Macmillan, pp. 100–120. Department for Business Enterprise and Regulatory Reform (BERR) (2008a) Agency working in the UK: a review of the evidence, Employment Relations Research Series No. 93 [online]. Available at: http://www.bis.gov.uk/files/file48720.pdf [Accessed 24 March 2012]. Department for Business Enterprise and Regulatory Reform (BERR) (2008b) Agency workers: joint declaration by government, the CBI and the TUC, 22 May 2008. Department for Business Innovation and Skills (BIS) (2010a) Implementation of the agency workers directive: response to consultation on draft regulations [online], January 2010. Available at: http://webarchive.nationalarchives.gov.uk/+/http:// www.berr.gov.uk/files/file54289.pdf [Accessed 23 March 2012]. Department for Business Innovation and Skills (BIS) (2010b) Impact assessment European Parliament and Council Directive on working conditions for temporary agency workers [online], January 2010. Available at: http://www.bis.gov. uk/assets/biscore/employment-matters/docs/10-582-agency-workers-directiveimpact-assessment [Accessed 10 March 2012]. Department for Business Innovation and Skills (BIS) (2011) Agency workers regulations: guidance [online], May 2011. Available at: http://www.bis.gov.uk/assets/ BISCore/employment-matters/docs/A/11-949-agency-workers-regulations-guid ance.pdf [Accessed 10 March 2012]. Department of Trade and Industry. (2003) Explanatory memorandum on European Community legislation: amended proposal for a directive on temporary work [15098/02 COM(02)701], 10 January 2003. EuroCIETT. (2007) At the heart of flexicurity: the contribution of private employment agencies to active labour market policies [online]. Available at: http://www. eurociett.eu/fileadmin/templates/eurociett/docs/position_papers/Leaflet_ALMP_ final_version.pdf [Accessed 27 March 2012]. EuroCIETT. (2011) Economic report: the agency work industry around the world [online]. Available at: http://www.ciett.org/fileadmin/templates/eurociett/docs/ stats/Ciett_Economic_Report_2011.pdf [Accessed 23 September 2012]. European Commission (EC) (2002) Proposal for a directive of the European Parliament and the Council on Working Conditions for Temporary Workers, COM (2002) 149 final. Brussels, Belgium: European Commission [online]. Available at: http://eurlex.europa.eu/LexUriServ/site/en/com/2002/com2002_0149en01.pdf [Accessed 22 February 2012]. European Council (2007) Employment, social policy, health and consumer affairs, 16139/07 [press release] (Presse 284) 2837th Council meeting, Brussels, 5–6 December 2007. European Economic and Social Committee (2002) Opinion of the economic and social committee on the proposal for a directive of the European Parliament and the Council on working conditions for temporary workers, COM (2002)149 final—2002/0072(COD), Brussels, 19 September 2002. European Expert Group on Flexicurity (2007) Flexicurity pathways, turning hurdles into stepping stones [online]. Available at: http://ec.europa. eu/employment_social employment_strategy/pdf/flexi_pathways_en.pdf [Accessed 20 April 2012]. European Foundation for the Improvement of Living and Working Conditions (2008) Temporary agency work and collective bargaining in the EU [online].

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Available at: http://www.eurofound.europa.eu/pubdocs/2008/99/en/4/EF0899EN. pdf [Accessed 27 February 2012]. European Parliament (2002) Report on the proposal for a European Parliament and Council directive on working conditions for temporary workers, COM (2002) 149, 23 October 2002 [online]. Available at: http://www.europarl.europa.eu/ sides/getDoc.do?type=REPORT&reference=A5-2002-0356&language=EN [Accessed 22 October 2012]. Fudge, J. (forthcoming) Flexicurity and labour law: labour market segmentation, precarious work, and just distribution, in: Numhauser-Henning, A. and Rönmmar, M. (eds.) Normative patterns and legal developments in the social dimension of the EU. Oxford: Hart. Guardian. (2008) Agency and temporary workers win rights deal, 21 May 2008. Hepple, B. (1999) United Kingdom, Private Employment Agencies, Bulletin of Comparative Labour Relations, 380. House of Lords. (2008a) European Union Committee, 26th Report of Session 2007–08, Working time and temporary agency workers: towards EU agreement, Report with Evidence, HL Paper 170, London: Stationary Office Limited [online]. Available at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ ldeucom/170/170.pdf [Accessed 22 February 2012]. House of Lords. (2008b) Minutes of evidence taken before the Select Committee on the European Union (Sub Committee G), 10 July 2008 [online]. Available at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/170/170. pdf [Accessed 22 February 2012]. Jones, E. (2002) Temporary agency labour: back to square one? Industrial Law Journal, 31 (2), pp. 183–190. Keter, V. (2008) Temporary and agency workers (equal treatment) Bill 2007–08, Research Paper 08/17. London: House of Commons Library. Keter, V. (2009) Working time directive: opt out from 48 hour limit on working week. SN/BT/2073. London: House of Commons Library. Kitschelt, H., Lange, P., Marks, G. and Stephens, J. (eds.) (1999) Continuity and change in contemporary capitalism. Cambridge: Cambridge University Press. Leighton, P. and Wynn, M. (2011) Classifying employment relationships—more sliding doors or a better regulatory framework? Industrial Law Journal, 40 (1), pp. 5–44. Open Europe. (2008) The Agency Workers Directive and the CBI-TUC Agreement Background Briefing, Briefing Note, 29 May 2008. Peck, J. and Theodore, N. (1998) The business of contingent work, Work, Employment and Society, 12 (4), pp. 655–674. Peck, J., Theodore, N. and Ward, K. (2005) Constructing markets for temporary labour, Global Networks, 5 (1), pp. 1–26. Personnel Today. (2008) Agency Workers Directive passed in Europe: reaction, 22 October 2008. Rogowski, R. (2008) Governance of the European social model: the case of flexicurity, Intereconomics, 43 (2), pp. 82–91. Standing, G. (2008) The ILO: an agency for globalisation, Development and Change, 39 (3), pp. 355–384. Trade Union Congress (TUC). (2005) The EU temp trade: temporary agency work across the European Union [online]. Available at: http://www.tuc.org.uk/extras/ eu_agency.pdf [Accessed 27 March 2012]. Vaes, T. and Vandenbrand, T. (2009) Implementing the new temporary agency work directive. Belgium: Leuven. Vosko, L. (2009) Less than adequate: regulating temporary agency work in the EU in the face of an internal market in services, Cambridge Journal of Regions, Economy and Society, 2 (3), pp. 395–411.

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Wilthagen, T. and Tros, F. (2004) The concept of flexicurity: a new approach to regulating in employment and labour markets, Transfer, 10 (2), pp. 166–187.

NOTES 1. Green MEP, John Lambert, quoted in Personnel Today, 22 October 2008. 2. Kevin Green, Chief Executive, Recruitment and Employment Confederation, Personnel Today, 22 October 2008. 3. Now Article 153, Treaty on the Functioning of the European Union (TFEU). 4. C181 (1997) International Labour Organisation. See Benjamin (chapter 6, this volume) for a fuller discussion of this convention. 5. Art. 2(3). 6. Art. 1(1)(a): the intermediary is not “a party to the employment relationship which may arise therefrom.” 7. Committee on Employment and Social Affairs, Official Journal of the European Union, 2011/C 351 E/06. 8. 2010/2018 (INI). 9. The ETUC is the only representative cross-sectoral trade union organisation representing workers interests at the European level. It has a membership of eighty-five national trade union confederations from thirty-six European countries. 10. UNICE (renamed Business Europe in 2007) is a European association of industries and employers representing companies’ interests with the European institutions. It has forty-one members in thirty-five countries and represents over twenty million companies. 11. A total of sixty-one amendments were proposed. 12. Temporary and Agency Workers (Equal Treatment) Bill 27 of 2007–2008. 13. The Agency Workers Regulations, Terms and Conditions of Employment, SI 2010, No. 93. 14. The Conduct of Employment Agencies and Employment Businesses Regulations 2003 impose certain duties on employment agencies but say nothing about the contractual position of agency workers or equal treatment. There is no licensing of agencies in the UK, despite the fact that the industry is very fragmented. 15. Costs to employment businesses under the twelve-week qualifying period are estimated to be up to £241 million unless they are passed on to the hirer. Benefits to agency workers are estimated to be between £897 and £995 million per year (Department for Business Innovation and Skills 2010b: 12–13). 16. The current rate of the national minimum wage in the UK is £6.19 an hour for adults over twenty-one years.

4

Placing Filipino Caregivers in Canadian Homes Regulating Transnational Employment Agencies in British Columbia Judy Fudge and Daniel Parrott

1.

INTRODUCTION

Canada has a long history of “importing” domestic workers from other countries to care for family members and to perform household duties in private homes (Bakan and Stasiulis 1997: 32–35) Throughout this history, labour brokers, now known as employment agencies, have been key actors in matching domestic workers with employers. Traditionally, domestic work has been (and continues to be) regarded as women’s work, suited to women’s roles, talents and temperament. Today, households in Canada recruit women from the global South, especially from the Philippines, to provide care in their homes for children and other family members who are sick, disabled and elderly. What distinguishes the migrant caregivers who perform this social reproductive labour in private households from the mothers, wives and other family members who also do this work is that the former are paid a wage. However, unlike other employees, these migrant domestic workers are not paradigmatic free wage labourers. As temporary migrants their immigration status is tied to an employment relationship with a particular employer. Moreover, as live-in caregivers admitted under a specific stream of Canada’s Temporary Migrant Workers program they are required to live in the private home of their employer. Thus, they are not free to circulate in the labour market, nor are they free to reside where they choose. This double unfreedom plays an important role in making these workers vulnerable to exploitation. In fact, live-in caregivers have become exemplary precarious workers. The double unfreedom endured by migrant domestic workers admitted under Canada’s Live-In Caregiver Program is exacerbated by the role of labour intermediaries, who function both as immigration consultants and employment agencies. Illegal recruitment fees, unpaid wages, unpaid and excessive overtime and interferences with domestic workers’ privacy are documented examples of the type of abuses that live-in caregivers in Canada experience (Canada. Standing Committee on Citizenship and Immigration 2009: 30–36). The employment agencies, which recruit and place domestic

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workers1 across national boundaries, are crucial actors in the construction, maintenance and reproduction of global care chains, in which women from the South migrate to the North in order to provide domestic work (Fudge 2011). These global care chains, which not only link countries of the North and South but also contiguous countries in the South, are created by the confluence of two related phenomena—structural adjustment policies and neoliberal reforms (Stasiulis and Bakan 2005; Yeates 2009). Global care chains also assist families who are located in the North in preserving the gendered division of paid and unpaid labour by shifting some of the costs of social reproduction to women and their families in the South (Benería 2008). Moreover, one of their key links—employment agencies—both draws upon and contributes to an ongoing process of racialising domestic work (Razavi 2007: 2). Stasiulis and Bakan (2005: 70) show the role employment agencies play “in reproducing a highly racialised set of practices and criteria in the recruitment and placement of female migrant domestic workers in upper-income Canadian households.” Two sets of agents are crucial for the maintenance and reproduction of global care chains between the Philippines and Canada: the Philippines Overseas Employment Office Administration (POEA) and employment agencies that operate in sending and receiving countries. One of the POEA’s core functions is to issue licences to private recruitment agencies that engage in overseas recruitment. Private employment agencies assist employers in receiving countries in navigating the complex immigration rules and policies. Migrant workers rely on immigration consultants, who not infrequently operate employment agencies, to steer them through the immigration process. The blurring and combining of the roles of employment agent, who recruits domestic workers for employers, and immigration consultant, who represents migrant workers and employers, is conducive to abusive employment practices. Moreover, the operation of different scales (international, bilateral, national and provincial) in the construction of global care chains and different legal contexts (immigration, employment and commercial law) creates a tangle of jurisdiction that poses (not insurmountable) challenges for devising effective regulation of employment agencies who recruit migrant domestic workers. This chapter focuses on the legal regulation of employment agencies that recruit women from the Philippines to work in British Columbia homes providing care for family members. It begins by describing the governance structure of the Live-In Caregiver Program, which is the federal immigration programme that admits temporary migrants to perform caregiving work in private domiciles in Canada, and it examines which countries send live-in caregivers to British Columbia and the citizenship of the workers admitted through the programme. Part three describes the regulatory regime in the Philippines and the bilateral agreement between British Columbia and the Philippines regarding the recruitment and employment of Philippine nationals in the province. The next part focuses on the regulation of employment

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agencies in British Columbia, and it examines recent legal cases to illustrate some of the shortcomings in the regulation.2 In part five, the regime governing migrant workers in Manitoba that was introduced in 2008 is contrasted with the ineffective governance structure in British Columbia. The chapter concludes by reflecting on the relationship between how employment agencies are governed by legal institutions and norms and migrant domestic workers’ unfreedom. 2.

THE LIVE-IN CAREGIVER PROGRAM

The Live-In Caregiver Program (LCP) is the latest in a series of government initiatives to supply domestic help for Canadian households that stretches back to the nineteenth century, when women from the United Kingdom were recruited (Fudge 2011). After World War II, Canada turned to recruiting domestic workers from the Caribbean, which initiated the racialisation of domestic work. The programme was later incorporated into the 1973 Non-Immigrant Employment Authorization Program, which transformed the domestic workers’ migrant status to a temporary one and expanded to include workers from other countries, especially the Philippines. In 1982, the federal government introduced the Foreign Domestic Movement Program, which provided a process for domestic workers to transfer from temporary to permanent migration status (Bakan and Stasiulis 1997: 34). The programme was later overhauled in 1992 and renamed the LCP. The LCP built upon, and formalised aspects of, its immediate precursor. The change in nomenclature from “domestic” to “caregiver” signalled a shift in focus in the type of work to be performed by the migrant worker from a broader set of household tasks to caregiving exclusively. However, unlike its predecessor, which was targeted to meet the child care needs of families who could afford to hire employees, “the LCP is also being deployed to supply qualified Filipino nurses as live-in home support workers for elderly and disabled people” (Macklin 2002: 228). Temporary migrant workers are being used to address the problem of finding “affordable” means to address the care deficit that arises when women are expected to work full time and men are unwilling to take up unpaid caring tasks. The LCP is exclusively designed to meet the care needs of private families; live-in caregivers cannot work for more than one employer at a time, a health agency, a labour contractor or a day care or foster care centre. This programme is an individualised and privatised solution to the care gap. The process for admitting caregivers has two stages, the first of which is initiated by the employer, who submits an application for a labour market opinion to Human Resources and Skills Development Canada (HRSDC). HRSDC assesses the application to ensure, among other things, that the

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employer is meeting provincial/territorial labour standards, the job duties are that of a full-time live-in caregiver and the prospective employer has sufficient income to pay a live-in caregiver and can provide suitable accommodation in their home, usually a private, furnished room. Employers must agree to pay for all services, fees and costs associated with a recruitment agency and, beginning in 2008, for all travel costs of the caregiver to and from Canada. Once the prospective caregiver receives the two documents from the employer, she can begin the second stage of the application process and submit these documents to the Department of Citizenship and Immigration Canada (CIC). CIC reviews these and other documents as part of an assessment that ensures the applicant meets the requirements with respect to education, training, work experience and language ability. If successful, the caregiver obtains a work permit valid for up to three years plus three months for a specific job with a specified employer. What distinguishes the Live-In Caregiver Program from other Temporary Foreign Worker Program streams is that it requires the caregiver to live in the private household of the person for whom the worker provides care. The LCP constructs a double unfreedom; not only is a caregiver’s immigration status tied to a specific employment relationship with a particular employer so that she is not free to circulate in the labour market, the caregiver is also not free to choose her residence because as a requirement of her immigration and employment status she must reside at her place of employment, which must be a private residence housing the person who needs care. The quid pro quo for this arrangement is that the LCP provides a unique pathway to permanent residency. The Live-In Caregiver class allows caregivers to apply for a change of status to permanent residency without having to leave Canada and without an employer’s nomination. To qualify for this change of migration the live-in caregiver must work for a cumulative period of at least two years during the four years following her arrival in Canada. It often takes an additional year to eighteen months to obtain permanent residence status. Once a caregiver achieves permanent status she is no longer required either to reside in her employer’s home or to engage exclusively in caregiving activities for a single employer, and she can also sponsor family members as permanent residents. Over 90 per cent of the foreign nationals who enter Canada under the programme apply for permanent residence status, with 98 per cent being successful (Department of Citizenship and Immigration 2009: 3781). However, although the vast majority of caregivers no longer live in their employers’ homes after they obtain permanent resident status, the majority often face huge barriers in obtaining better jobs (Zaman 2006: 91–134). In British Columbia, over 90 per cent of caregivers entering the province through the LCP are women, and, of these, most are from the Philippines (see Table 4.3 and Table 4.4, following). The province follows the

620

25

LCP (Female)

LCP (Male)

60

1,025

1,085

2001

65

1,090

1,160

2002

80

1,190

1,275

2003

135

1,405

1,545

2004

0

0

Saudi Arabia

Taiwan

0

0

5

25

865

2001

0

0

5

25

890

2002

***

0

***

80

990

2003

***

***

10

230

1,030

2004

***

0

20

145

1,130

2005

140

1,455

1,595

2005

***

0

50

85

1,365

2006

155

1,650

1,810

2006

***

0

95

35

2,375

2007

240

2,735

2,970

2007

***

0

105

70

2,070

2008

130

2,445

2,570

2008

***

***

85

100

1,400

2009

105

1,760

1,860

2009

0

0

65

85

1,390

2010

130

1,705

1,830

2010

***

0

65

35

1,055

2011

110

1,265

1,375

2011

Notes: The Department of Citizenship and Immigration collects statistical information and organises it into administrative and longitudinal data. This chapter uses information from the Temporary Residents Data Cubes. Due to privacy considerations, the figures in this table have been subjected to random rounding. Under this method, all figures in the table are randomly rounded either up or down to multiples of 5. All values between 0 and 5 are shown as ***.

Source: CIC Data Cube.

0

10

465

2000

Female LCP Caregivers Entering BC by Citizenship

China (People’s Republic)

India

Philippines

Table 4.4

Source: CIC Data Cube.

640

2000

Total Number of LCP Caregivers Entering BC (total and by gender)

LCP

Table 4.3

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national pattern; 90 per cent of caregivers arriving in Canada are women, and the Philippines is one of the top three source countries for international migrants, with Manila serving as an important hub in global migration circuits (Barber 2008: 1266). The reliance on women from the Philippines to work in the homes of Canadians reflects the ongoing development strategy in the Philippines that leads one out of every ten Filipinos to find work overseas (Pratt 2002: 198). When data regarding the most recent country of permanent residence for live-in caregivers entering British Columbia (see Table 4.5) is compared with data regarding their citizenship status (see Table 4.4), it appears a significant number of Philippine citizens are recruited from outside their home country. In 2011, for example, 1,055 caregivers claimed Philippine citizenship (see Table 4.4), although only 725 caregivers claimed permanent residence in the Philippines (see Table 4.5). Because Saudi Arabia and Taiwan deploy negligible numbers of their own citizens as caregivers it is likely that Filipino caregivers are arriving in British Columbia through these countries instead of directly from the Philippines. As we shall discuss in the next section, this circuitous route means that recruiters can avoid the regulations on recruitment agencies that are imposed in the Philippines and still obtain a supply of Filipino caregivers. The data in Figure 4.3 also suggests that the percentage of Filipino citizens recruited “offshore”—i.e. as citizens recruited from outside the Philippines—has trended up, with a jump in offshore recruitment occurring around 2008. Overall, there has been a steady increase in offshore recruitment with 31 per cent of Filipino citizens recruited offshore in 2011, as compared to only 5 per cent in 2000.

35 30 25 20 Percent Offshore 15 10 5 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Figure 4.3

Percentage of Filipino Citizens Recruited “Offshore”

Source: CIC Data Cube.

5

Taiwan

Source: CIC Data Cube.

0

Saudi Arabia

***

10

440

2000

10

***

5

20

840

2001

15

***

5

25

880

2002

10

10

***

80

945

2003

15

5

10

230

960

2004

85

10

20

145

965

2005

120

25

50

85

1,110

2006

Female LCP Caregivers Entering BC by Country of Last Permanent Residence

China (includes Hong Kong and Macau)

India

Philippines

Table 4.5

230

45

95

35

1,885

2007

325

120

100

70

1,490

2008

200

60

85

100

1,015

2009

210

10

65

75

1,085

2010

90

***

70

35

725

2011

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In summary, the data reveal that the Live-In Caregiver Program is built on a large, significant and sometimes indirect care chain linking British Columbia with the Philippines. To better understand this chain, the next part of this chapter examines the main regulatory and institutional features governing labour export from the Philippines. 3. PHILIPPINE REGULATORY AND INSTITUTIONAL FRAMEWORK The Philippines has developed an employment-driven emigration policy that emphasises temporary labour migration, worker protection and foreign currency remittances. The Philippines government identifies labour market niches abroad and arranges an orderly supply of labour through supervised recruitment by foreign employers, recruitment agencies and foreign governments based on bilateral agreements. The system was built and continues to operate around certain key regulations and institutions. The formalisation of Philippine labour exports began in 1974, when President Ferdinand Marcos issued Presidential Decree 442, also known as the Labor Code of 1974.3 The decree instituted labour export as a temporary measure to bolster the country’s foreign exchange reserves through mandatory migrant worker remittances (Rodrigez 2002: 346). Although initially provisional, the decree’s success in providing a flow of foreign currency and attenuating chronic un- and underemployment led to its establishment as a permanent and key economic strategy (Rodrigez 2005). A political crisis in the mid-1990s, precipitated around the hanging of a domestic worker named Flor Contemplacion by the Singapore government, saw the passage of the Migrant Workers and Overseas Filipinos Act of 1995.4 The resulting act moved the Philippines from a labour-exporting regime concerned merely with the commoditisation of workers to one where export was coupled with the regulation of overseas employment and the extension of rights and entitlements to migrant workers when abroad (Rodrigez 2005: vi). The act covers employment, illegal recruitment and social and legal services (Rodrigez 2002: 347). Together this and other legislation framed the development of a transnational migration apparatus comprised of several government agencies centred around a key institution known as the Philippine Overseas Employment Administration (Guevarra 2010: ch. 4; Valiani 2012: 92–199). Created in 1982, and overseen by the Department of Labor and Employment, the administration is mandated to promote and develop the country’s overseas employment programme and to protect the rights of its migrant workers.5 The administration is the sole government entity with the authority to regulate temporary overseas employment, including the activities of private recruitment agencies, and to manage the overseas employment programme. It controls overseas employment by limiting participation to qualified employers, workers and recruitment agencies. It also issues rules and

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regulations governing the recruitment process, sets minimum employment standards and maintains a system of adjudication to ensure that all parties comply with rules and regulations. The administration regulates private recruitment markets, especially those with prohibitively high recruitment fees, as high fees not only obstruct labour movement, but the reduced entry of workers into key markets due to high fees may also cause the Philippines to lose out in competition with other labour-exporting states. Despite its international orientation, the administration operates in the Philippines only and maintains no offices or permanent representatives abroad. Instead, the bulk of its overseas-related activities are handled at what are called Philippine Overseas Labor Offices. Operating under the Department of Labor, these offices are based in or near Philippine consular offices under the administrative supervision of the Philippine embassy. The Labor Offices provide welfare assistance and purport to monitor the welfare of Filipino workers in host countries. The offices do not appear to operate any formal monitoring system, however. In fact, they do not always know how many workers are in the country (or where to find them), they confront resource and staff constraints and they lack legal authority in the host country (Agunias 2008: 18). The administration conducts marketing missions designed to open and secure labour export opportunities (Rodrigez 2010: 55). In 2008, the administration dispatched several missions to Canada and received both government and private-sector delegations from three provinces who wanted to establish bilateral relations (Philippine Overseas Employment Administration 2008: 12). The result was a series of memoranda being entered into by three Western provinces, including a memorandum signed by British Columbia with the Philippines on 29 January 2008 (Philippine Overseas Employment Administration 2008: 13). Moreover, a Philippine Overseas Labour Office was subsequently opened in Vancouver. Its duties are to assist the administration with migrant worker deployment and, together with the Philippine Consulate General, to promote and market Filipino labour. Overall, the administration has been successful in finding and managing export opportunities for its migrant workers. In 2008, 1.2 million temporary migrant workers left the Philippines to work in over two hundred countries, each one bearing an employment contract issued and certified by the Philippine government (Agunias 2008: 1). These workers joined the millions of Philippine migrants already employed overseas, with an estimated 10 per cent of the country’s population working abroad (Rodrigez 2010: xii). There is a comprehensive regulation of remittances, which are mandatory (Valiani 2012: 100–102). Remittances received from Filipinos living abroad in 2006 were reported by the Central Bank of the Philippines to be over US $12 billion, comprising roughly 12 per cent of the gross domestic product, constituting the largest single item (Barber 2008: 1272).

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The Philippine government helps protect its migrant workers by aligning its rules with those of a host country’s employment standards legislation. The POEA Rules and Regulations provide the authority for imposing a host country’s minimum employment standards in its migrant workers’ employment contracts. In addition, Philippine Overseas Labor Offices verify that employment contracts incorporate wages for regular work hours and overtime pay not lower than the prescribed minimum wage in the host country.6 The Philippine government also negotiates with host states bilaterally and uses the resulting instruments to secure better working conditions for Filipino migrants. As part of this bilateral process, the Philippines moved to more stringently regulate the recruitment of migrant care workers destined for Western Canada. In 2008, the Philippines Overseas Employment Administration released Memorandum Circular No. 6 entitled Guidelines on the Recruitment and Deployment of Filipino Workers to Canada.7 It applies to all foreign employers and principals who are hiring Filipino workers, including caregivers, and sets out a regime for protecting Filipino nationals recruited for work in Canada. It governs the registration of Canadian employment agencies and employers and the documentation of Filipino caregivers bound for Canada. In effect, the legislation and circular import Canadian provincial employment agency norms and apply them to recruitment activities in the Philippines. It notes that Canadian employers are required to pay for all the costs of recruitment, including visa fees and airfare, and stipulates that employment agencies are specifically prohibited from charging recruitment and placement fees to workers destined to the Canadian western provinces (Philippines. Philippines Overseas Employment Administration 2008). The increase in offshore recruitment of Filipino caregivers in 2008, which was identified in the previous section, coincides with the appearance of Circular No. 6, suggesting that some recruiters began avoiding Philippine government supervision under the new rules by moving recruitment into unregulated jurisdictions. The administration and its Overseas Labor Offices also noticed recruitment-related problems occurring in offshore locations. Their Vancouver-based consular officer-in-charge of labor, Bernadino Julve, has indicated that “his biggest headache” is “Canadian-based or Canadiancontracted agencies that continue to dodge Philippine and Canadian regulations by recruiting Filipino workers in third-party countries, notably Hong Kong, Singapore and the United Arab Emirates, where the targeted workers have often been working for years” (Mata Press Service 2008). Furthermore, in a newspaper interview, Julve expressed his concerns with smaller temporary work agencies: “Direct employers, like the big health agencies or construction firms, we don’t worry about these employers . . . What we do worry about is these mom-and-pop agencies, these third-party agencies that will send people overseas to do recruitment. This is where the problems occur” (Julve, quoted in Mata Press Service 2008).

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4. THE REGULATION OF EMPLOYMENT AGENCIES RECRUITING MIGRANT CAREGIVERS TO BRITISH COLUMBIA British Columbia, like several Canadian jurisdictions, requires employment agencies to be licensed and prohibits them from charging fees to place workers in employment. Under the licensing regime, which is provided in the Employment Standards Act (ESA) and its regulations, the requirements are minimal: a test of knowledge of labour standards, a $100 fee and satisfying the director of the Employment Standards Branch that the agency operates in the best interests of employers and persons seeking employment. The director is authorized to cancel or suspend an employment agency’s license if the agency makes a false or misleading statement in the application, contravenes the act or regulations, operates the agency contrary to the best interests of employers or persons seeking employment and, in placing domestic workers with an employer, does not inform the employer of the requirement to register the domestic workers with the Employment Standards Branch.8 A key area of contention—both legally and politically—is the fees employment agencies charge to workers for job placement. In British Columbia, legislation prohibiting fee charging for finding workers employment goes back many decades (Parrott 2011: ch. 2). However, although the ESA prohibits employment agencies from charging employees a fee for a job placement, agencies are permitted to charge people seeking employment for other services such as advertising, résumé writing, interview preparation and immigration services. How an employment agency characterises the fees that it charges to live-in caregivers is critical to the legality of the practice. This problem of characterisation is particularly pernicious given the practice of immigrant consultants operating employment agencies that recruit migrant workers. Canada has a long and storied history of “crooked” immigration consultants, and, in 2011, the federal government “cracked down” on immigration consultants, establishing a new body—the Immigration Consultants of Canada Regulatory Council (ICCRC)—to regulate them (Canada. Citizenship and Immigration Canada 2011). Moreover, the jurisdictional problem of having different adjudicators (sometimes employment standards tribunals, other times courts) ruling on the same fees for the purpose of characterising them in different legal contexts (employment or commercial law, for instance) adds to the complexity of effectively regulating the practices of employment agencies that recruit migrant workers. Employment agencies are also involved in self-regulation, and there are voluntary associations for different segments of the temporary worker labour markets. The Association of Canadian Search, Employment and Staffing Services (ACSESS) represents large transnational agencies that provide a variety of services to enterprises ranging from large multinational corporations to public sector employers. ACSESS provides and administers a certification program, which, among other things, requires candidates to

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comply with its code of ethics, which states that members will make no direct or indirect charges to candidates or employees unless specified by a licence (Association of Canadian Search, Employment and Staffing Services n.d.). However, few agencies that specialise in the recruitment of live-in caregivers are members of ACSESS.9 Instead, private employment agencies recruiting caregivers for employment with Canadian families have organised themselves into a group known as the Association of Caregiver & Nanny Agencies Canada (ACNA Canada). These agencies’ clients are private families and not-for-profit enterprises. Unlike ACSESS, the ACNA advocates charging caregivers recruitment fees. The association argues that its members—the mom-and-pop operations to which Julve referred in the preceding section—must charge caregivers fees because Canadian families requiring child and elder care cannot always afford to pay large upfront recruitment costs (Association of Caregiver & Nanny Agencies Canada n.d.). The ACNA advocates that caregivers pay for their own recruitment and justifies this position on its Web site by stating that “it is important that caregivers coming to Canada do so with some form of investment made by them personally” (Association of Caregiver & Nanny Agencies Canada n.d.). The contrast between the two associations that represent employment agencies over charging placement fees to employees is likely explained by the different markets in which the associations operate and their diverging reputational interests. The ACNA’s focus is on recruiting foreign caregivers and serving individual families. Many ACNA members are also immigration consultants, many of whom are also members of the self-regulating society for immigration consultants. By contrast, many of the ACSESS’ members are large transnational agencies that are concerned with preserving their reputations as efficient and effective labour market intermediaries. In recognition of the specific vulnerability of domestic workers, anyone who employs a domestic worker in British Columbia is required to register under the Employment Standards Act and to provide the domestic worker with a written contract that outlines her duties, hours of work, wages and charges for room and board. However, neither the registry for domestic workers nor the licensing requirements for employment agencies serve an enforcement function (Fairey 2005). The employer is not required to submit a copy of the employment contract to the Employment Standards Branch. Thus, there is no way of verifying whether the contract the department responsible for immigration requires in order for the live-in caregiver to obtain a work permit corresponds to the contract required by British Columbia. Moreover, the province has moved almost exclusively to a complaint-based method of enforcing the ESA. Given live-in caregivers’ threefold dependence on their employers—for a job, for a place to live and for migrant status—it is not likely that they will complain about violations of their labour standards. Despite evidence that recruiters engage in fraudulent activities in placing migrant workers in British Columbia (Zell 2011),

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the province has not introduced regulation or devoted resources to address the problem, although the Employment Standards Branch has responded to complaints. The case of Prince George Nannies and Caregivers Ltd. exemplifies the tension between the practices of agencies that recruit domestic workers and the regulatory regime in British Columbia.10 It also illustrates the problems that arise when immigration consultants act as recruiters. Prince George Nannies and Caregivers (PG Nannies) was licensed under the ESA, while its director, Christopher Taiho Krahn, was a member of the Canadian Society of Immigration Consultants at a time when the society was still sanctioned by regulation as the official membership vehicle for immigration consultants.11 Krahn was also the secretary of the ACNA national executive. Through representatives in Singapore as well as the Philippines, PG Nannies recruited Filipina caregivers from Singapore, Taiwan, Hong Kong and the Middle East. These locations represent key “offshore” sources for Filipino caregivers as they appear to allow agencies to directly charge workers recruitment fees.12 PG Nannies charged employers $600 each, while the live-in caregivers were each charged $4,000 for a placement. Eventually, several Filipina live-in caregivers lodged complaints with the Employment Standards Branch that PG Nannies was charging illegal fees. In 2009, the employment agency was ordered by the director’s delegate (an Employment Standards officer and the first-level adjudicator) to repay fourteen Filipina live-in caregivers $26,653.68 in placement fees that the agency had charged in violation of the Employment Standards Act.13 Krahn appealed the order to pay, arguing that the fees were permitted under the act because they were not for job placement but for advertising, resume preparation, image consulting, interview preparation, immigration settlement services and liaison services (between caregiver and employer). He relied on the BC Employment Standards Tribunal decision in Re Serions in support of his argument. In that case there were two separate agreements between the employment agency and live-in caregiver, one for locating the employer and another for immigration services. Although the tribunal in Re Serions agreed that the agency had contravened the prohibition against employment agencies charging fees to employees for finding employment, it also declared that immigration services were not contained within the prohibition against the payment of fees for finding a job.14 The Employment Standard Tribunal in Prince George Nannies did not consider itself to be bound by the earlier case because it involved two separate contracts, one for immigration services and the other for job placement, whereas in the case before it all the services were bundled in one contract with only one fee for all the services. Thus, it upheld the delegate’s determination that the fees PG Nannies charged were prohibited under the ESA. Yet despite PG Nannies’ noncompliance and attempts to overturn the legal determination that it had contravened the legislation,15 the Employment Standards Branch renewed its licence.16

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The ACNA has lobbied to weaken the employment agency provisions in the ESA. In vigorous opposition to the PG Nannies tribunal decision, ACNA members met with British Columbia’s (then) provincial labour minister Murray Coell to lobby for ministerial support for PG Nannies’ position (Association of Caregiver & Nanny Agencies Canada 2009). Although fourteen caregivers were successful in obtaining an order that the fees they paid to the employment agency should be repaid, the tribunal effectively provided a blueprint to employment agencies about how to charge live-in caregivers fees for services without contravening the ESA. All an agency needs do in order to navigate the law is separate the agreement for advertising or other services it provides from the agreement for employment placement, allow the caregivers to decide what services they want from the agency and not make the placement of caregivers contingent on paying a single fee whether or not they use those services. The problem with this solution, however, is that because employment agencies are permitted to charge employees fees for some services but not others, they have an incentive to characterise the fee for placement services as, for example, a fee for immigration services, the effect of which is to allow employers to shift the cost of recruitment from them to the workers. The division of legal jurisdiction over employment standards and employment tribunals that regulate employment agencies, on the one hand, and contract law and ordinary courts that regulate commercial arrangements, which is how contracts for immigration services are characterised, on the other, creates a minefield for migrant domestic workers when it comes to placement fees. Two legal cases involving ICN Consulting Inc. (ICNC), which operated a licensed “nanny” recruitment and placement agency in British Columbia from January 2004 to January 2008, illustrate the problems. Two live-in caregivers from Russia complained to the BC Employment Standards Branch that ICNC charged them fees for information about jobs. The director’s delegate determined that the agency contravened the ESA by charging fees for providing information about employment and ordered ICNC to repay the fees to the complainants. However, ICNC appealed this decision to the Employment Standards Tribunal, arguing that the delegate had violated principles of procedural fairness. The tribunal overturned the initial determination, cancelled the order to pay and referred the matter back to the director of the Employment Standards Branch for a new investigation by a different delegate.17 In the meantime, while a different delegate was conducting a new investigation, ICNC commenced a separate legal action against the two caregivers in Provincial Small Claims Court to enforce payment of the balance of fees that were outstanding. In the first case against one of the nannies, ICNC argued the unpaid fees were for immigration “consulting services for the purposes of obtaining a labour contract,” while the defendant caregivers argued that these fees violated the section of the ESA in requiring “a payment for obtaining employment from the person seeking employment.”18 The court found that, “in

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the context of this rather complicated procedure for obtaining a visa,” obtaining a labour contract was in fact different than obtaining a person employment. Dismissing PG Nannies as irrelevant because it dealt with employment placement and not immigration services, the court ordered the caregiver to pay the remaining fee to ICNC. Before the trial of ICNC’s claim against the second nanny began, the director of the Employment Standards Branch sought an adjournment on the basis that an investigation had commenced once the tribunal overturned the original determination. The court granted the adjournment (Allman 2011: 5.1.4). However, the contradiction in the director’s findings—that the fee ICNC imposed was for finding employment and thus prohibited—and the court’s determination—that ICNC’s fee was a legally permitted fee for immigration consultation—remains. The existing regulatory framework in BC provides many opportunities for employment agencies to shift recruitment costs from employers to migrant workers. Another way a recruitment agency might attempt to avoid the British Columbia regulations is by recruiting live-in caregivers in jurisdictions in which it is lawful to impose fees for employment placement and ensuring that none of these fees are paid through deductions from the caregivers’ wages while in British Columbia. The view that prevailed until recently in the province was that agencies’ practice of requiring migrant workers to pay their recruitment fees while offshore was not a problem that fell within provincial jurisdiction, but rather a matter for the country in which the contract was signed (Thompson 1994: 38). The growth and importance of temporary foreign workers in the provincial economy has changed this conception, however, and there is a growing awareness that British Columbia needs to be doing something to address the problems temporary foreign workers face during the recruitment process. BC has entered into a bilateral agreement with the Philippines, and an agreement with the federal government, and both stipulate that the province enforce the regulation of employment agencies (Newson 2010). According to a provincial official, it is “incredibly difficult to monitor these [recruitment] issues at a provincial level when the interactions taking place are necessarily international in scope” (Newson 2010). The government’s position is that the only effective way to manage the issue is at the federal level or as a coordinated approach among all provinces (or at least provinces receiving a large number of temporary foreign workers) rather than each province developing its own legislation. It has not taken any initiatives to develop a response to the problem of fee-charging and fraudulent agencies. The practice of requiring the full payment of fees before the caregiver is placed in employment is associated with another fraud whereby unscrupulous recruiters do not secure a verifiable employer. As Philippine official Julve explains: “We’ve heard about unscrupulous individuals who would recruit Filipinos but the actual employer is nowhere to be found. The border authorities call the employer to check and there is no one there and the

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poor worker is sent back home” (Julve, quoted in Mata Press Service 2008). The Philippines Overseas Labor Office’s Vancouver office began to address this problem by inserting itself into the administrative processes leading to a Live-in Caregiver Program work permit (Mata Press Service 2008). It now requires that any contract signed between the employer and employee be registered and verified by office staff in Vancouver, which helps screen out fraudulent recruiters hoping to collect placement fees from workers for nonexistent Canadian jobs. 5. EFFECTIVE REGULATION OF TRANSNATIONAL BROKERS: THE MANITOBA MODEL One jurisdiction in Canada, Manitoba, introduced legislation that specifically addresses temporary foreign worker recruitment separately from other types of in-province employment agency recruitment. Manitoba recognises that foreign worker recruitment by private, for-profit recruiters created a set of problems that are distinct from the recruitment of resident workers, which included, among other things, “exorbitant fees being charged to TFWs for employment placement; Contract requirements not being upheld; [and] Immigration status being used to coerce TFWs” (Allan 2010: 30). Whereas workers who are permanent residents of the province might share some of these problems, such as having an employer not uphold an employment contract’s requirements, they have the option of quitting to find a new job. By contrast, temporary foreign workers are employed under a work permit that restricts their employment to a specified employer, and thus they are not free to quit and get a new job without first obtaining a new work permit, which requires the new employer to obtain a labour market opinion. Given the particular vulnerability of temporary migrant workers, former Manitoba Minister of Labour and Immigration Nancy Allan concluded that it was necessary to develop labour legislation that could protect all workers, regardless of their migrant status. After consulting with immigration officials and the police it became clear to Employment Standards officials that many foreign workers were being exploited by both employers and recruiters (Dyson 2010). Dave Dyson, the executive director of Manitoba’s Employment Standards Branch, noted that, “the more we looked, the more we found. And the more we saw the more horrified we were as to what was actually going on” (Dyson 2010). The branch found foreign workers paying anywhere between $10,000 and $60,000 for a chance to work in Manitoba. Sometimes employers who directly recruit migrant workers paid the workers half of what they were promised. “You’d do the math,” says Dyson, “and you’d realized that this worker would spend the next ten to fifteen years paying off their debt to the recruiter, which essentially amounted to indentured servitude or slavery. Doesn’t matter what you call it, it wasn’t good” (Dyson 2010).

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Manitoba recognised the growing importance of temporary foreign workers to the provincial economy and was interested in developing approaches to facilitate their retention. The need to link short-term labour needs with long-term retention heightened the province’s resolve to protect foreign workers from unscrupulous recruiters and employers. Manitoba also hoped to attract more migrant workers by offering greater protection during recruitment and employment. Thus, the province made it a policy priority to strengthen ethical and orderly recruitment initiatives. As a result, in 2008 the province enacted the Worker Recruitment and Protection Act to replace its Employment Services Act.19 The act not only regulated employment agencies generally, but also specifically addressed the problems related to foreign worker exploitation during the recruitment process and subsequent employment. The foreign worker recruitment regulatory scheme has two main parts: employer registration and foreign recruiter licensing. The former is administered by Manitoba’s Immigration Branch, while the latter is overseen by the province’s Employment Standards Branch. Employer registration is likely the most important piece of the regulatory structure. Employers wishing to recruit a foreign worker must apply to register with the director of Employment Standards. During the application process the employer must declare whether or not it is using a foreign worker recruiter. The application is then sent to the Immigration Branch, where an immigration official contacts the employer. If the employer lists a foreign worker recruiter, the official advises the employer that the recruiter is liable to reimburse the worker for any recruitment costs the worker may have paid to anyone. In cases in which the employer is recruiting a foreign worker directly (the possible cover story for using an unlicensed recruiter), the official advises the employer that the Act makes the employer responsible for reimbursing the worker any recruitment costs the worker may have paid to anyone during the recruitment process (Dyson 2010). Not only can employers be held responsible for illegally charged placement fees, but these fees can also be deemed to be wages and returned to workers via the Employment Standards Branch’s wage-collection processes. The immigration official’s conversations with employers seem to screen out employers using an undeclared and/or unlicensed recruiter, suggesting that these employers decided to avoid the financial risks associated with unlicensed recruiters. Immigration officials also advise employers that the employment contract information contained in the labour market opinion becomes the minimum standard enforceable under the province’s Employment Standards Code. According to Dyson, “the end result is that many employers have opted to do their own recruitment without any recruiter intermediation. The employer not only avoids unnecessary financial liabilities, but can also ensure that the worker’s skills and abilities are commensurate with the wages, benefits and working conditions being offered in the LMO” (Dyson 2010).

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This shift towards direct employer recruitment is reflected in the large number of business registrations versus the small number of foreign worker recruiters licensed in Manitoba. Since the Worker Recruitment and Protection Act has been in force, 1,800 business registrations have been granted to Manitoba employers to recruit foreign workers. In contrast, of the sixtyone people who applied for a licence to recruit foreign workers into Manitoba, only nine licences were granted to recruiters that met the criteria for professional and principled international recruitment (Manitoba. Employment Standards Branch 2010: 1). As of 12 July 2012 there were nineteen licensed foreign worker recruiters in the province (Manitoba. Employment Standards 2012). Registration also provides a mechanism for screening out unscrupulous employers. By requiring that an employer give proof of provincial registration before being able to apply for a labour market opinion, the province effectively controls who can access federal temporary foreign worker programs (Human Resources and Skills Development Canada n.d.). This linkage mechanism also appears to integrate well with recent changes to the Immigration and Refugee Protection Act Regulations assessing the “genuineness” of work permit applications and consequent approvals contingent on employer compliance with provincial labour legislation.20 Registration also provides provincial immigration officials with the opportunity to introduce employers to related services and other recruitment options. The regulatory structure’s second main piece is the licensing of foreign worker recruiters, which is administered by the Employment Standards Branch and is divided into three parts: qualifications, financial disclosure and bonding. To qualify, an applicant must be a member in good standing of either the Law Society of Manitoba or the Immigration Consultants of Canada Regulatory Council and must fully disclose financial information, which enables the branch to determine the individual’s actual business interests and whether or not these interests are consistent with the Act. A successful applicant must provide a bond of $10,000 to the director of Employment Standards, which remains in the director’s possession and provides a material link between the province and foreign worker recruiters operating outside the province. It can be used to reimburse foreign workers for any fees collected from them at any time by any person during the recruitment process. In addition to civil recovery of illegally charged fees, there are significant penalties for contraventions, ranging up to $25,000 for a convicted person and up to $50,000 for convicted corporations. The licensing and employer registration pieces address many of the recruitment problems identified in the previous section. Employment agencies are kept separate from foreign worker recruiters and are regulated as distinctly defined entities, with the latter being extensively vetted, supervised and bonded. The heightened supervision discourages the blending of legal with illegal fees. Recruiters tempted to blend legal and illegal fees face losing

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their bond and their licence, being charged under the Act and facing discipline from the Immigration Consultants of Canada Regulatory Council. Employer registration discourages the use of unlicensed recruiters, and there are provisions that discourage collusion with out-of-province agencies. The licensing measures also provide a form of quality assurance and ensure that those employers requiring professional assistance are dealing with the most reputable and accountable members of the recruitment sector. According to Dyson (2010), “the Manitoba Chamber of Commerce phoned the Deputy Minister and asked if we could bring in the new Act quicker because of so many concerns raised by their members, because their members felt that they were being duped by recruiters, and wanted a mechanism to know which recruiters were legitimate and which ones were not.” Manitoba’s Employment Standards Branch also established a Special Investigation Unit, which is responsible for proactively investigating and enforcing the regulatory regime (Manitoba. Employment Standards Branch 2010: 1). What brings these elements together and allows them to work is the close level of cooperation that exists between the provincial and the federal government departments and enforcement agencies, such as the Canada Border Service Agency, the Royal Canadian Mounted Police and local police services (Dyson 2010). The result is a tight, integrated administrative structure designed to protect the viability of the Temporary Foreign Worker Program and prevent foreign worker abuse and exploitation. In fact, there is no complaint mechanism that exists under the act, and investigations are only initiated at the director’s discretion. In light of the efficient and effective regulatory structure in Manitoba, in 2009 the Philippines Overseas Employment Agency passed Memorandum Circular No. 2, which no longer requires the POEA to verify the legitimacy of the permit, offer of employment and employment contract for workers destined for Manitoba (Philippines. Philippines Overseas Employment Administration 2009). The only complaints voiced during the consultations leading up the Act’s passage were from agencies that recruit foreign workers. Recruiters predicted that the legislation would kill foreign recruitment activities and leave Manitoba employers mired in a labour shortage without access to foreign labour. They also argued that employers would refuse to pay the full cost of recruiting foreign workers, a similar position to that taken by the ACNA in British Columbia. However, recruiters concerns that employers would not bear these costs turned out to be ill founded; Manitoba employers do most of their own recruiting, and they appear to find recruitment costs a reasonable and normal part of business overhead (Dyson 2010). 6.

CONCLUSION

Canada has a long history of employment agencies acting abroad to promote immigration, and their unethical and unscrupulous practices prompted

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regulation at the municipal, provincial and federal levels beginning at the turn of the twentieth century (Parrott 2011). The economic crisis of the 1930s triggered action at an international level, and in 1933 the ILO adopted Convention 34, which prohibited fee-charging agencies and gave meaning to the maxim that “labour is not a commodity.” After a decades-long campaign, in the 1990s private employment agencies were able to persuade the international community that they were legitimate labour market intermediaries (Vosko 2000: ch. 2). However, the abusive practices of too many transnational labour brokers tarnishes their claim (Martin 2005). One of the lessons of the past is that private fee-charging agencies can, if they engage in abusive practices, threaten not only their legitimacy but their very existence. Jurisdiction has been used as an excuse by Canadian governments for their failure to ensure that migrant domestic workers are not exploited by employment agencies. But as the discussion of the Manitoba regulatory regime demonstrates, the tangle of jurisdiction between sending and receiving countries and between the federal and provincial governments does not constitute an insurmountable problem for preventing the abusive practices of employment agencies. Jurisdiction is not a legal problem that prevents the effective regulation of employment agencies that place workers across national boundaries. The problem is one of political will. A multilevel governance structure is necessary both to cultivate legitimate employment agencies and to uproot the unscrupulous ones. Eradicating irresponsible brokers who operate as “flesh peddlers” at the bottom of the labour market will not end the unfreedom of migrant caregivers who work and live in private homes. Nevertheless, as the example of Manitoba demonstrates, it could put an end to some of the most abusive practices and the worst forms of exploitation. Effective regulation of transnational labour brokers would also better ensure that the costs of social reproduction in the global North are not be borne by the women of the global South who cross borders to perform essential care work.

BIBLIOGRAPHY Agunias, D. R. (2008) Managing temporary migration: lessons from the Philippine model. Migration Policy Institute (Insight: program on migrants, migration, and development) [online]. Available at: http://www.migrationpolicy.org [Accessed 1 September 2009]. Allan, N. (2010) Foreign worker recruitment and protection: the role of Manitoba’s Worker Recruitment and Protection Act. Government of Manitoba, Our Diverse Cities, Spring 2009, pp. 31–36 [online]. Available at: http://canada.metropolis. net/pdfs/Pgs_ODC_Spring09_foreignworker_e.pdf [Accessed 1 October 2009]. Allman, M. (2011) Enforcement remedies under the Employment Standards Act. BC Continuing Legal Education Materials (2011). Employment Law Conference 2011, Vancouver, BC, 12 May 2011. Association of Canadian Search, Employment and Staffing Services (n.d.) ACSESS code of ethics and standards [online]. Available at: http://www.acsess.org/about/ ethics.asp [Accessed 18 August 2012].

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Association of Caregiver & Nanny Agencies Canada (n.d.) Advocacy & issues [online]. Available at: http://www.acnacanada.ca/government-affairs/advocacyissues/ [Accessed 18 August 2012]. Association of Caregiver & Nanny Agencies Canada (2009) Scheduled meetings with government, Newsletter ACNA Canada, 5. Bakan, A. B. and Stasiulis, D. (1997) Foreign domestic workers policy in Canada and the social boundaries of modern citizenship, in: Bakan, A. B. and Stasiulis, D. (eds.) Not one of the family: foreign domestic workers in Canada. Toronto: University of Toronto Press. Barber, P. G. (2008) The ideal immigrant? gendered class subjects in PhilippineCanada migration, Third World Quarterly, 29 (7), pp. 1265–1285. Benería, L. (2008) The crisis of care, international migration, and public policy, Feminist Economics, 14 (3), pp. 1–21. Canada. Citizenship and Immigration Canada (2009) OP 14: Processing applicants for the live-in caregiver program. Ottawa: Citizenship and Immigration Canada. Canada. Citizenship and Immigration Canada (2011) News Release—Tougher rules governing immigration consultants enacted and new regulator announced [online]. Available at: http://www.cic.gc.ca/english/department/media/releases/2011/201106–28.asp [Accessed 18 November 2011]. Canada. Human Resources and Skills Development Canada (2011) Temporary foreign worker program [online]. Available at: http://www.hrsdc.gc.ca/eng/ workplaceskills/foreign_workers/communications/whatsnewmanitoba.shtml [Accessed 18 August 2012]. Canada. Standing Committee on Citizenship and Immigration (2009) Temporary foreign workers and nonstatus workers, report of the Standing Committee on Citizenship and Immigration, 40th Parliament, 2nd Session, May 2009. Department of Citizenship and Immigration (2009) Regulations amending the immigration and refugee protection regulations, Canada Gazette, 143 (51), 19 December 2009. Duffy, M. (2005) Reproducing labour inequalities: challenges for feminist conceptualizing care at the intersections of gender, race, and class, Gender & Society, 19 (1), pp. 66–82. Dyson, D. (2010) Personal interview (the regulation of employment agencies in British Columbia), 26 July 2010. Fairey, D. (2005) Eroding worker protections: BC’s new “flexible” employment standards [online]. Vancouver: Canadian Centre for Policy Alternatives. Available at: http://www.policyalternatives.ca/publications/reports/eroding-worker-protections [Accessed 10 February 2010]. Fudge, J. (2011) Global care chains, employment agencies and the conundrum of jurisdiction: decent work for domestic workers in Canada, Canadian Journal of Women and the Law, 23 (1), pp. 235–264. Guevarra, A. R. (2010). Marketing dreams, manufacturing heroes: the transnational labor brokering of Filipino workers. New Brunswick: Rutgers University Press. Human Resources and Skills Development Canada. (n.d.) Temporary foreign worker program: Manitoba’s worker recruitment and protection act [online]. Available at: http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/communications/ wh atsnewmanitoba.shtml [Accessed 18 August 2012]. Macklin, A. (2002). Public entrance/private member, in: Cossman, B. and Fudge, J. (eds.) Privatization, law and the challenge to feminism. Toronto: University of Toronto Press. Manitoba. Employment Standards Branch (2010) CAALL report 2010. Report presented to the Meeting of the Canadian Association of Administrators of Labour

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Legislation Labour Standards Committee, Charlottetown, PEI, 9–11 June 2010 [unpublished]. Manitoba. Employment Standards. Family Services and Labour (2012) Valid license holders: foreign worker recruitment [online]. Available at: http://www.gov.mb.ca/ labour/standards/asset_library/pdf/wrapa_valid_licensees.pdf [Accessed 29 July 2012]. Martin, P. (2005) Merchants of labor: agents of the evolving migration infrastructure. Discussion Paper, Decent Work Program, DP/158/2005. Geneva: International Institute for Labour Studies. Mata Press Service (2008) Philippine labour sheriff lays down the law [online], Asianpost, 30 July 2008. Available at: http://www.thefilipinopost.com/article/ philippine-labour-sheriff-lays-down-law [Accessed 29 July 2012]. Newson, M. (2010) Questions re Canada-British Columbia Immigration Agreement, Annex F. Personal e-mail to: Daniel Parrott. Parrott, D. (2011) The role and regulation of private, for-profit employment agencies in the British Columbia labour market and the recruitment of temporary foreign workers. Ph.D. thesis (unpublished), University of Victoria, BC. Philippine Overseas Employment Administration. Department of Labour and Employment (2008) 2008 annual report. Mandaluyong: Republic of the Philippines. Philippines. Philippines Overseas Employment Administration. Department of Labour and Employment (2009) Additional guidelines on the recruitment and deployment of Filipino workers to Canada. Memorandum Circular No. 02. Pratt, G. (2002) Collaborating across our differences, Gender, Place and Culture: A Journal of Feminist Geography, 9 (2), pp. 195–200. Razavi, S. (2007) The political and social economy of care in a development context: conceptual issues, research questions and policy options. United Nations Research Institute for Social Development (UNRISD), Gender and Development Programme Paper no. 3. Geneva: UNRISD. Rodrigez, R. M. (2002) Migrant heroes: nationalism, citizenship and the politics of Filipino migrant labor, Citizenship Studies, 6 (3), pp. 341–356. Rodrigez, R. M. (2005) The labor brokering state: the Philippine state and the globalization of Philippine citizen workers. Ph.D. thesis (unpublished), University of California, Berkeley. Rodrigez, R. M. (2010) Migrants for export: how the Philippine state brokers labor to the world. Minneapolis: University of Minnesota Press. Stasiulis, D. K. and Bakan, A. B. (2005) Negotiating citizenship: migrant women in Canada and the global system. Toronto: University of Toronto Press. Thompson, M. (1994) Rights and responsibilities: a review of employment standards in British Columbia. Victoria: Ministry of Skills, Training and Labour. Valiani, S. (2012) Rethinking unequal exchange: the global integration of nursing labour markets. Toronto: University of Toronto Press. Vosko, L. (2000) Temporary work: the gendered rise of a precarious employment relationship. Toronto: University of Toronto Press. Yeates, N. (2009) Globalizing care economies: explorations in global care chains. Houndsmills, UK: Palgrave Macmillan. Zaman, H. (2006) Breaking the iron wall: decommodification and immigrant women’s labor in Canada. Lanham, MD: Lexington Books. Zell, S. (2011). Contracting out accountability? Third-party agents in temporary foreign worker recruitment to British Columbia, in: Depatie-Pelletier, E. and Rahi, K. (eds.) Mistreatment of temporary foreign workers in Canada: overcoming regulatory barriers and realities on the ground. Centre Métropolis du Québec Immigration et métropoles, publication CMQ-IM-n 46, pp. 27–45.

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NOTES 1. At the theoretical and empirical level it is possible to distinguish between reproductive labour, which includes all the impersonal activities in the management of the household, such as cleaning and meal preparation, that can be purchased in the market, and the nurturance or care of children, elderly or ill people that, because of its interpersonal and emotional nature, is more difficult to transfer to others and to purchase on the market (Duffy 2005: 67). However, throughout this chapter the terms “domestic worker” and “caregiver” are used interchangeably. When we refer to live-in caregivers we are referring to migrant domestic workers who have been admitted under the special immigration programme described in part two of this chapter. 2. Unlike immigration, which is treated as a matter of federal jurisdiction, employment and commercial matters fall within provincial jurisdiction. 3. Department of Labor and Employment, Labor Code of the Philippines, Presidential Decree No. 442, as Amended. 4. Migrant Workers and Overseas Filipinos Act of 1995, Republic Act No. 8042. 5. Executive Order No. 797, Reorganizing the Ministry of Labor and Employment, Creating the Philippine Overseas Employment Administration and for other purposes [online]. Available at: http://www.poea.gov.ph/rules/eo797. pdf [Accessed 1 February 2010]. 6. See also Philippines Overseas Employment Administration (POEA), POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers (2002), Section 2(b)(1), Rule I, Part III [online]. Available at: http://www.poea.gov.ph/rules/POEA%20Rules.pdf [Accessed 18 August 2012]. 7. POEA, Memorandum Circular No. 06, Guidelines on the Recruitment and Deployment of Filipino Workers to Canada (2008) [online]. Available at: http://www.poea.gov.ph/MCs/MC%206-08.pdf [Accessed 18 August 2012]. 8. Employment Standards Act (ESA), RSBC 1996, c. 113, s. 1(1), 12; Employment Standards Regulation, BC 396/95, ss. 2–4. 9. An Internet search revealed dozens of employment agencies in Canada who recruit and place domestic workers, and the names of these agencies were cross-referenced against the membership of ACSESS in February 2010. 10. BC Employment Standards Tribunal, Prince George Nannies and Caregivers Ltd., BC EST no. RD106/09, 21 October 2009 [online]. Available at: http:// www.bcest.bc.ca/decisions/2009/rd106_09.pdf; Employment Standards Tribunal, Prince George Nannies and Caregivers Ltd. v. British Columbia, 2010 BCSC 883. 11. At the time, section 13.1 of the Immigration and Refugee Act Regulations restricted immigration consulting for a fee to lawyers and society members. On 30 June 2011, new regulations came into force replacing the CSIC with a new body called the Immigration Consultants of Canada Regulatory Council. Existing CSIC members were grandfathered into the ICCRC, per s. 3, the Regulations Designating a Body for the Purposes of Paragraph 91(2)(c) of the Immigration and Refugee Protection Act, S.O.R./2011–142. 12. The Asia-Pacific jurisdictions mentioned in the decision allow recruiters to charge worker placement fees. For example: Singapore, Employment Agencies Act (Cap. 92, 1985 Rev. Ed. Sing.) ss. 14 and 29 [online]. Available at: http://statutes.agc.gov.sg; Employment Agencies Act (Cap. 92, Section 29), Employment Agencies Rules, s. 17 and Schedule 2\, allows a licensee to charge and receive up to 80 per cent of the workers first month’s earnings

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13. 14. 15. 16.

17. 18. 19. 20.

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for a successful placement. Available from: Singapore Ministry of Manpower http://www.mom.gov.sg/Pages/default.aspx [Accessed 18 August 2012]. Taiwan, Employment Services Act, Paragraph 2, Article 81 gives the authority to create a placement fee standard that can be used by a private employment agency to charge a worker. See the Standards for Fee-Charging Items and Amounts of the Private Employment Services Institution [online]. Available from: Government of Taiwan http://laws.cla.gov.tw/Eng/FLAW/FLAW DAT0202.asp [Accessed 18 August 2012]. Hong Kong, (Cap. 57, Section 62) Employment Agency Regulations, Regulation 10 (Maximum Fees and Commissions) and Schedule 2, Hong Kong Legal Information Institute [online]. Available at: http://www.hklii.hk/eng [Accessed 18 August 2012]. Prince George Nannies and Caregivers Ltd., 2 June 2009, BC EST#D055/09. BC EST #D378/01, 5. The claim was dismissed because it was outside the six-month statutory limitation period. Prince George Nannies and Caregivers Ltd., BC EST no. RD106/09 (21 October 2009); Employment Standards Tribunal, Prince George Nannies and Caregivers Ltd. v British Columbia, 2010, BCSC 883. Prince George Nannies Ltd. was listed on the 3 February 2010 list of registered employment agencies, but not on the 21 January 2010 list. Government of BC, Minister of Labour, Employment Standards Branch, Employment Standards Regulations, Licensed Employment Agencies [online]. Available at: http://www.labour.gov.bc.ca/esb/employment/ [Accessed 25 January 2010]. ICN Consulting Inc. v. The Director of Employment Standards, BC EST no. D050/10, 13 May 2010. ICN Consulting Inc. v. Tagirova, [2010] B.C.J. no. 2760 at paragraphs 17 and 18. Worker Recruitment and Protection Act, C.C.M.S. c. W197. Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers), SOR/2010–172.

5

The Creation of Distinctive National Temporary Staffing Markets1 Neil M. Coe and Kevin Ward

The internationalization of temporary staffing has broad implications because this is not “just another service industry”. It is also an active agent in the re-regulation of labour markets, since the way in which multinational staffing firms penetrate new markets . . . reveals a great deal about changing structures and norms of labour regulation. (Peck, Theodore and Ward 2005: 4).

1.

INTRODUCTION

In their introduction, Strauss and Fudge (chapter 1, this volume) note that one of the “less explored dimensions of the rise of nonstandard work is the increasing importance of labour intermediaries, especially temporary employment agencies (TEAs) (also called temporary staffing agencies or TSAs).” It is with exploring this hitherto less explored dimension of the “new world of work” that this chapter is concerned. Specifically, we make the case for understanding temporary staffing agencies—a form of labour market intermediary, meeting the needs of client companies for contract workers of many kinds—as important actors, alongside others such as client firms, professional organisations, the state and trade unions, in the construction of nationally variegated markets for temporary staffing. This approach conceptualises temporary staffing agencies as having an institutional and norm-setting presence in labour markets, which is about more than just the numbers of workers placed on a daily, weekly or monthly basis. The emergence and growth in temporary staffing markets around the world over the last few decades has had more systemic consequences than these numbers would suggest. As key drivers of these processes, the largest transnational temporary staffing agencies have progressively expanded the geographical and sectoral spread of their operations. Moving beyond the established markets in which most continue to be headquartered, and encouraged by largely supportive supranational and national reregulation of national temporary staffing industries, they have entered countries across most regions of the world. Table 5.6 introduces the top twenty transnational

The Creation of Distinctive National Temporary Staffing Markets Table 5.6

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Top Twenty Transnational Staffing Firms, 2011

Rank

Firm

Origin

Foreign revenue 2011($m)

Number of countries

Switzerland

25,969.90

60

US

18,868.70

82

Netherlands

17,189.20

37

UK

3,613.67

31

Netherlands

2,629.72

10

Kelly Services

US

2,105.60

35

7

Robert Half

US

1,121.53

26

8

Michael Page

UK

1,075.37

33

9

Brunel

Netherlands

1,051.55

35

10

Synergie Group

France

748.00

14

11

Hudson Highland

US

741.52

19

12

Robert Walters

UK

525.27

23

13

Monster

US

468.05

55 (30)

14

SThree

UK

464.37

17

15

Harvey Nash

UK

450.39

15

16

Korn Ferry

US

378.33

35

17

Impellam Group

UK

258.07

6

18

Heidrick and Struggles

US

241.29

36

19

CDI Corp.

US

170.13

38 (8)

20

Proffice

Sweden

160.14

1

Adecco

2

Manpower

3

Randstad

4

Hays

5

USG People

6

4

Source: Company annual reports and Web sites. Notes: Monster claims a presence in 55 countries. They have a physical office presence in 30 countries. CDI Corp. has subsidiaries in eight countries while its franchise network, MRI Network, has a presence in an additional 30 countries.

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temporary staffing agencies in 2011, as ranked by foreign revenues, showing a cohort emanating exclusively from the US and five leading Western European markets, and also depicting a highly consolidated global industry dominated by the giants Adecco, Manpower and Randstad. Figure 5.4, in turn, demonstrates their expanding global presence over the decade 1998– 2008, wherein this relatively small cadre of transnational staffing agencies has sought to escape the highly competitive conditions of the core markets of

Number of overseas affiliates of top 20 firms present, 1998 13–15 10–12 7–9 4–6 1–3

Number of overseas affiliates of top 20 firms present, 2008 13–19 10–12 7–9 4–6 1–3

Figure 5.4

Number of Overseas Affiliates of Top 20 Firms Present, 1998–2008

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North America and Western Europe by expanding into, and playing a role in the construction of, a range of “emerging” markets across Northern, Southern, Central and Eastern Europe, Australasia and East Asia at the same time as they have been diversifying into different sectors, occupations and forms of human resources services (Coe, Johns and Ward 2007). The outcome is a shrinking number of countries in which the largest transnational temporary staffing agencies are not present, although, with the exception of South Africa, the countries of Africa seem mostly “off the map” as far as those at the forefront of the global temporary staffing industry are concerned (see Benjamin, chapter 6, this volume, on regulatory choices in South Africa and Namibia). As a result of these globalisation dynamics, and despite the ongoing economic crisis in the countries of the global North having challenged the forward march of the agencies, temporary staffing markets continue to emerge across a range of different types of economies, from the most coordinated to the most liberal. While Peck, Theodore and Ward (2005: 22) are correct to claim that attractive “host economies must be both comparatively prosperous and relatively well regulated, since the industry finds its markets in the underside of these conditions,” with the result that “most developed economies in the world have become prime targets for the staffing industry,” nevertheless, there is still a degree of variation amongst those countries in which the transnational temporary staffing agencies have entered and developed their operations. And yet, the transnational agencies have not had things all their own way. On one level, this is simply due to the nature of the activity they undertake. Temporary staffing remains a stubbornly “local” industry, and thus in the countries in which they are present temporary staffing agencies need coverage across the main employment centres. This means a relatively extensive branch network and a degree of understanding of how subnational labour markets function. More importantly, however, the business of temporary staffing agencies is highly dependent on nationally specific labour market regulations of three kinds: first, those that apply to the activities of the agencies themselves, such as the industries in which they can place workers or the licensing requirements for their legal operation; second, those regulations that apply to flexible forms of work across the economy as a whole and their relationship to the mainstream or “standard” employment relationship, such as the conditions under which workers labour; and third, the welfare state system that shapes the decisions of individuals to seek work through temporary staffing agencies and the incentives to agencies to service this segment of the labour market. Thus there are three aspects of labour regulation that structure the conditions under which transnational temporary staffing agencies enter a national market and undertake their business. More specifically, it is at the intersection of the organisation and regulation of the different national economies and labour markets and the corporate strategies of the largest temporary staffing agencies—which may or may not be transnational agencies, as we shall see—that distinctive national temporary staffing markets are constituted. This chapter thus seeks to argue for an institutional

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perspective on the place of temporary staffing agencies in the wider labour and welfare regime, focusing in particular on the difference that national systems of labour regulation make to the nature of temporary staffing markets. The next section of the chapter turns to theorising this intersection. It argues for a greater appreciation of the variety of national temporary staffing markets than has hitherto been acknowledged, drawing on work on national variations in labour and welfare regimes. We argue for an approach that theorises the forging of national temporary staffing markets through the interactions between national and international regulators, national and transnational temporary staffing agencies, national and international trade bodies and national and international civil society and labour unions. The third section discusses some general findings from five countries—Australia, the Czech Republic, Japan, Poland and Sweden—drawing on a longstanding program of research.2 It compares how the various actors intersect in a variety of arrangements and couplings to produce different kinds, or “varieties,” of national temporary staffing markets. We pay particular attention to the roles of transnational temporary staffing agencies in the different markets. These case studies reveal evidence of both convergence and divergence in both the processes behind the production of the markets and the form they take, thereby countering overly simplistic accounts that argue for one or the other. At a general level, neoliberal reforms of the sort captured under the term “flexibility” can be witnessed across the five countries. As Thelen (2010: 4, original emphasis) notes, “many of the institutions that served as theoretical anchors for explanations of cross-national variation are themselves under increasing strain and in many cases undergoing important changes.” However, what these reforms mean in each of the different institutional contexts differs considerably, in part as the result of wider governmental and labour market regime conditions. We assume that “economic relationships and activities are socially constituted and institutionally variable, such that the ways competitive processes operate, and the nature both of the actors engaged in them and of their outcomes, vary significantly between societal contexts” (Whitley 1999: 5). In conclusion, the chapter echoes more general calls for an approach that sees markets as variegated and produced through the interactions between various economic and social actors (Peck and Theodore 2007b). In this respect, efforts to construct markets for temporary staffing are not so different from the work involved in the production of markets more generally (MacKenzie, Muniesa and Siu 2007). 2. VARIETIES OF NATIONAL TEMPORARY STAFFING MARKETS: THE INSTITUTIONAL CONTEXT Ours is not the first attempt to capture the variety in temporary staffing markets. Others scholars have tended, however, to focus squarely on the regulation of the temporary staffing industry per se. For example, in

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a comparative international study of the regulation of temporary staffing agencies, Walwei (1996) identified a group of “liberal” countries—including Australia, Denmark, New Zealand and the US—in which temporary staffing agencies neither required a licence nor were subject to particular government regulation. Such countries could be contrasted with others where the activities of temporary staffing agencies were far more tightly policed, for example Belgium, Italy and France. In his work on the EU15, Storrie (2002) disaggregated the countries by their industry regulation, grouping them into four “types”: “the continental countries,” “the UK and Ireland,” “the Scandinavian countries” and “the Netherlands.” Arrowsmith (2006), in his follow-up work, classified the UK, Denmark, Ireland and Sweden together, on the basis of “statutory regulation.” What these studies have in common is a classification of national economies and their institutions according to the legal and regulatory framework for temporary staffing agencies. Countries are labelled as one “type” or another on the basis of a single, albeit important, institutional feature. And it may also be possible to extend these typologies to include those countries, such as Japan, which have seen their temporary staffing markets expand in recent years, driven by government deregulation of the industry itself. So these broad comparisons are a useful starting point and are clearly not without their merits. However, our argument in this chapter is that they are limited in what they reveal, underestimating as they do the subnational and transnational elements that go into the making up of “national” markets and negating the wider institutional environment within which temporary staffing agencies are actively seeking to “make” markets. In this chapter our argument is that temporary staffing markets are embedded in much wider “varieties of [national] capitalism” (Hall and Soskice 2001), “national business systems” (Whitley 1992) or “welfare regimes” (Esping-Andersen 1990; 1999). That is, in different countries there are different “rules of the game” that structure the relations between economic and social actors. This approach necessitates examining not just the activities of temporary staffing agencies; it also means detailing the actors involved in the constitution of the institutional environment in which temporary staffing agencies are unavoidably embedded and the nature of the relations between these different actors. While for us the “varieties of [national] capitalism” and “national business systems” approaches have much to say about the national institutional environments within which social actors of various sorts interact under different regulatory regimes, it is Esping-Andersen’s (1990; 1999) work that we believe is the most insightful, emphasising as it does the variation amongst nations according to qualitatively different sets of relations between the state, markets and families. We make this argument despite the concerns expressed by some over his work (e.g. Baldwin 1996; Arts and Gelissen 2002). Esping-Anderson’s work provides a means of theorising the nature of the relations between the different institutional aspects that combine to structure the activities of temporary staffing agencies. In his

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work he goes about identifying and refining three welfare regime types. The first, the liberal regime, refers to countries where “means-tested assistance, modest universal transfers, or modest social insurance plans predominate” and where the state “encourages the market, either passively—by guaranteeing only a minimum—or actively—by subsidizing private welfare schemes” (Esping-Anderson 1990: 26–27). For example, in this classification the UK and the US are indistinguishable in terms of their industry, labour and welfare regulation. The second, the conservative regime, refers to countries where there is a strong historical corporatist-statist legacy which continues to shape policy, where rights are conferred on individuals on the basis of class and status and where the family, and not the market or the state, is the centrepiece of social reproduction. The third, the social democratic regime, refers to those countries where there is “an equality of the high standard, not an equality of minimal needs” (Esping-Anderson 1990: 27), such as in the case of Sweden. The strength of Esping-Andersen’s approach lies in its recognition of the interactions between the welfare state and the labour market, both of which exert considerable influence over the conditions under which a national temporary staffing market is constituted. This mutual interdependence is expressed in at least three instances: the conditions under which labour is supplied, the conditions that shape behaviour within the labour contract, and the conditions under which labour enters into employment. In a similar vein, Soskice (1999) identifies “uncoordinated economies” characterised by deregulation through wage flexibility, declining trade unionism and weakened employee protection, and Whitley (1999: 38, emphasis added) writes about “the degree of employer-employee interdependence” in seeking to capture the difference between “those societies encouraging reliance on external labour markets in managing the bulk of the labour force and those encouraging more commitment and mutual investment in organizational capabilities.” What this body of work argues is that the extent and the nature of the regulation of industrial relations, labour markets and welfare systems are both outcomes of, and contributing factors to, the status of the national welfare state. Importantly here, this recognition provides a means of analyzing the ways in which temporary staffing markets are constructed differently in different countries due to how the three aspects—industrial relations, labour markets and welfare systems—intersect. The weakness of Esping-Andersen’s analysis, however, lies in the sheer breadth of the three categories used and its emphasis on national institutions—i.e. it glosses over the diversity within each of the three categories, and it fails to acknowledge the role of subnational and transnational actors. This is particularly pertinent when the focus is on an internationalising industry such as temporary staffing. Our argument is that there is greater variation within regime types than is allowed for by Esping-Andersen (including the range of actors of differing geographical reach that go into the making up

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of each national regime) and that it is important to avoid naturalising any apparent similarities or parallels amongst countries within each regime type. For example, reading Australia as a liberal welfare/labour market regime or Sweden as a social democratic welfare/labour regime that has undergone processes of deregulation common to many countries does not allow us to understand the particular kinds of temporary staffing markets that have emerged in those territories and the differing role of transnational temporary staffing agencies in the two cases. This is even clearer when looking at those countries that seemingly fall outside the original three categories. One notable example is the Central and Eastern European countries, which have often been labelled as “post-Socialist” (Bradshaw and Stenning 2004), although again the term serves to efface the variety of national experiences of transition over the past two decades. In short, there is need for a greater sensitivity to socioeconomic structures and political economic histories—or put another way, to the variegated nature of capitalism (Peck and Theodore 2007b)—and for the explanation of differences amongst countries with broadly similar labour and welfare regimes which allows for the role of more-than-national actors. In the case of temporary staffing markets, much is known about the two core national markets of the US and the UK (Peck and Theodore 2002; 2007a; Theodore and Peck 2002; Ward 2003; 2005). Relatively little, however, is known about staffing markets in some of the more regulated labour markets of the industrialised North (although on Germany see Mitlacher 2007; Vitils 2004; on Italy see Degiuli 2002; Nannicini 2004; on Japan see Coe, Johns and Ward 2011; 2012; Imai and Shire 2006; and on Sweden see Andersson and Wadensjö 2004; Coe, Johns and Ward 2009; Nystrom 2005), never mind the still “emerging” countries of the global South (although on Morocco see Ahmed 2011). Generalising from empirical work in just two countries—even if they are the two largest markets for temporary staffing—is likely to produce oversimplified accounts of the industry, even more so given that these two examples—the UK and the US—constitute a very narrow set of labour market experiences. So, on the one hand, in the “liberal welfare regimes” (Esping-Andersen 1990; 1999) of the UK and the US, the “temporary employment regimes” (Peck and Theodore 2002) are likely to share a number of common characteristics. For example, we know that the UK and US markets are highly competitive and fragmented (Theodore and Peck 2002; Ward 2003; 2005; American Staffing Association 2006; Recruitment and Employment Confederation 2006). The largest transnational temporary staffing agencies have not been able to increase their market share significantly in recent times, despite pursuing a range of growth strategies. In both markets the top ten temporary staffing agencies together account for less than 20 per cent of the total market, with small domestic agencies making up the bulk of the market. And, finally, in both countries temporary staffing activities are lightly regulated, against a backdrop of equally lightly regulated mainstream

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employment conditions and a shrinking role for the state as a public sector labour intermediary. On the other hand, however, where “temporary employment regimes” are different, and that is in most of the other industrialised nations, we would perhaps not expect to see US-style temporary staffing markets. Rather we might expect to observe a variety of temporary staffing markets, displaying both convergence and divergence tendencies. They might be assumed to differ both in terms of their internal structure and the nature of their relationship to wider labour regulation and welfare systems. This variety in the “rules of the game,” i.e. the ways in which the institutions in different national economies combine and interact, is poorly understood, both conceptually and empirically. For example, in many of the industrialised economies—Denmark, Finland, France, Germany, Italy, Japan and the Netherlands—rates of nonstandard and atypical employment are sizable, while the proportion of these workers placed through temporary staffing agencies remains relatively low, increasing in some countries while decreasing in others (CIETT 2006; Eurostat 2006). The role of transnational temporary staffing agencies also differs from one country to another. In some they are dominant, while in others, it is domestic agencies that have the bulk of the market share. The internal composition of the nonstandard workforce—the mix of agency, part-time and fixed-term employment—differs from one country to another, undermining attempts to draw meaningful conclusions about the constitution of the temporary staffing market on the basis of a “norm” generated from a relatively small number of countries. Welfare state arrangements also differ from country to country. In some cases public sector actors play a strong role, working alongside temporary staffing agencies to place unemployed workers into jobs, as is the case in Germany. Moreover, in some countries, institutions of welfare and labour regulation serve to reduce or equalise disparities between standard and contingent workers. In other cases, such as the UK, there is very little public sector involvement in either competing with, or working alongside, temporary staffing agencies in the placement of workers. Finally, the importance of labour unions and national and transnational trade bodies may differ. In France and Italy labour unions remain actively involved in defending the mainstream employment relationship, whereas in the UK their position is weaker, and the national trade body—the Recruitment and Employment Confederation (REC)—has established a role for itself in championing the contribution of temporary staffing agencies. Building on these conceptual issues—namely the need be sensitive to the range of actors and their relationships and the role of subnational and transnational actors in the production of “national” markets—we go a step further than many existing studies and examine the interface between industry and mainstream employment regulation, discerning five different “types,” which are set out in Table 5.7. The size, internal structure, rates of

The Creation of Distinctive National Temporary Staffing Markets Table 5.7 ‘Type’

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Types of Regulatory Interfaces

Regulation of temporary Regulation of Regulation of staffing industry labour market welfare state

Country examples

One

Liberal

Liberal

Liberal

Ireland, UK, US

Two

Liberal

Light

Light

Australia, Czech Republic

Three

Liberal

High

High

Germany, Japan, Netherlands, Sweden

Four

Strict

Light

High

Belgium, Italy

Five

Strict

Strict

High

France

growth and implications for the “mainstream” economy of the temporary staffing industry are likely to be the result of the regulatory settlement produced at the interface of the regulation of the industry, of the labour market and of the welfare state (Bergström and Storrie 2003; Bergström 2005). This reveals the different combinations of factors of varying geographical reach that constitute the institutional context for the emergence of national temporary staffing markets. We also need to introduce other social actors into our analyses, however. As Strauss and Fudge (chapter 1, this volume) detail in their introduction, there is a need to “highlight . . . the role and agency of multiple actors rather than focusing solely or predominantly on one (e.g. capital, and especially firms, in ‘traditional’ economic geography; workers and unions in labour studies and labour geography) or framing all as the autonomous, rational, profit-seeking agents of mainstream economics.” This necessitates moving beyond the regulatory sphere to recognise the institutional place of temporary staffing agencies. While the role played by agencies is variable, reflecting the heterogeneous nature of corporate strategies and structures, the central point is that their labour market presence has system-wide consequences. For instance, the means by which transnational agencies enter a market and then consolidate and/or diversify their businesses shapes the production of temporary staffing markets. The same goes for the range of expansionary strategies pursued by domestic temporary staffing agencies and the intranational geographies these produce. Importantly, agencies create the conditions under which it is feasible for clients to pursue intermediated employment practices. While there is some evidence that the “flexibility” provided by temporary staffing agencies fits with some workers preferences, more often than not workers “choose” to be placed through a temporary staffing agency in a constrained manner, often being

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faced with few other options in the segment of the labour market in which they are positioned. This has implications for the institutional context in which norms and conditions of social reproduction evolve and are contested within, and between, national regimes. This “market-making” role of temporary staffing agencies has hitherto received little attention in the various literatures on this topic. And to be clear here, we are not arguing that agencies are the dominant institutional presence in all temporary staffing markets—their relative importance will vary from context to context, depending on the relations between the different economic and social actors. In some territories transnational temporary staffing agencies appear to be driving market development and regulation will be largely responsive to growth (e.g. the markets of Central and Eastern Europe: Coe, Johns and Ward 2008), whereas in others agencies appear to be tightly constrained by regulation and the ways and degree to which reregulation is occurring (e.g. Japan: Coe, Johns and Ward 2011). Another key role performed by temporary staffing agencies, and particularly the large transnational agencies, is in lobbying for favourable regulatory change. Such lobbying is usually conducted collectively, and therefore the effectiveness of the activities of national and international trade bodies will also influence what happens in particular national contexts (see Wynn, chapter 3, this volume, on the UK). Since the 1990s there has been a significant reregulatory push by agencies and those that represent the industry, such as the International Confederation of Private Employment Agencies (CIETT). Equally, trade unions are an important institutional presence in some territories and are usually notable for their resistance to, and lobbying against, the expansion of temporary staffing and the perceived weakening of worker pay and conditions (see e.g. Heery 2004). The degree to which collective labour organisations can offer a counter-voice to industry lobbyists will influence and shape market development, reflecting the degree to which economies are more or less coordinated. Other forms of civil society organisations, such as think tanks and NGOs, may also be significant in terms of how they align themselves, or not, with labour market trends. Finally, the structures of client demand within a national context will also influence the kind of market that emerges and evolves. These influences include the following: the geography of the market (more specifically the urban hierarchy) and the extent to which that places limits on the expansion of agency activities, the sectoral structure of demand and the way in which it shapes demands for particular kinds of temporary workers (e.g. blue collar versus white collar) and the ownership structure of demand in terms of the level of presence of transnational firms who may act as a stimulus for the entry of transnational staffing agencies (Coe, Johns and Ward 2007). In sum, we argue that simplistic typologies of the regulation of the temporary staffing industry and/or labour and welfare systems fail to capture the complex and variegated ways in which distinctive national temporary staffing markets are continually produced (and reproduced) through the

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ongoing interactions between the various economic and social actors— including temporary staffing agencies—many of which stretch beyond the national economy in question. The nature of the market that results cannot simply be “read-off” deterministically, for example, from broad representations of the nature of regulatory change, but instead requires an appreciation of the various actors and the different ways in which they combine in distinctive national economies. Figure 5.5 summarises our conceptual framework, revealing the range of different national and transnational actors and processes that interact to create distinctive national markets for temporary staffing, namely the following: • The threefold influence of national/subnational state regulation in terms of (i) direct regulation of the activities of temporary staffing agencies, (ii) the regulation of mainstream employment relations and the industrial relations system, which in turn shapes the conditions under which temporary staffing agencies go about their business and (iii) the changing nature of welfare provision and state involvement in job placement activities, which again effects the conditions under which temporary staffing agencies go about their business; • The relative effectiveness of the lobbying activities of both national and international industry trade bodies as they strive to achieve what they perceive to be the appropriate mix between a relatively light regulation of the industry and a relatively regulated labour market;

Figure 5.5

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• The ability of individual, national and international groupings of labour unions to limit and/or influence the nature of the expansion of temporary staffing; • The growth and expansionary strategies of domestic agencies and their ability to withstand the competitive pressures of incoming transnational agencies; • The growth and expansionary strategies of transnational agencies and their ability to achieve economies of scale and scope in the face of domestic competition; • The capacity of national and transnational civil society organisations (for example, NGOs, think tanks and social coalitions of various kinds) to argue for fair and just employment conditions for workers; • The geographic and sector composition of the economy and the ways in which these factors shape the nature of demand for temporary staffing. In the next section of the chapter we turn to the five country case studies, using this conceptual framework to explore the ways in which institutional factors combine and interact with the activities of temporary staffing agencies to produce a variety of national temporary staffing markets. 3.

EVIDENCE FROM THE FIVE CASE STUDY COUNTRIES

Table 5.8 presents the headline findings from the five case study countries. These are the important coordinates for Australia, the Czech Republic, Japan, Poland and Sweden. Seven features merit discussion, before we move on to explore the interactions between the different actors in each country through Table 5.9. First is the relatively low penetration rate of temporary staffing in each country. The table reveals that none of the five countries have penetration rates above 2 per cent. Our argument, though, is that this figure is often misleading. It does not reflect the number of workers placed through a temporary staffing agency each year in the five countries; rather, it is a measure taken on a particular day. So this negates the influence of temporary staffing agencies on the employment histories of workers. The low penetration rate levels also underplay the institutional importance of temporary staffing in changing the system-wide “rules of the game,” destabilising the “standard employment relationship” and normalising a new set of labour market norms. Second, the number of temporary staffing agencies varies considerably, reflecting differences in the spatial organisation of the national economies and in the internal organisation of national temporary staffing industries. In the case of Australia many of the temporary staffing agencies are concentrated in a relatively small number of urban centres (such as Melbourne and Sydney), although the fragmented nature of the industry means there is a relatively high number of agencies in the country. At the other end of the spectrum, there are relatively few agencies in Sweden, due

1.9% (2009) 1,936 (2009) Fragmented but concentration tendencies Less than 1% N/A

Low Manufacturing, retailing

Daily Medium

3,500 (2011)

35%

4% (2011)

Skilled Engineering (Aus)

Low

Government, professional, manufacturing

Weekly

High

Number of agencies

Market share, top ten

Share of global temporary staffing industry

Largest temporary staffing agency

Profit margins

Dominant sectors

Most common duration of contracts

Level of corporate territorial embeddedness

Czech Republic

1.4%

Australia

Case Study National Temporary Staffing “Markets” in Comparative Context

Penetration rate (2005)

Table 5.8

Very high

Daily

Office workers

High

Staff Service (Japan)

24% (2011)

55%

23,700

1.6%

Japan

Medium

Daily

Manufacturing, retailing

Low

N/A

Less than 1%

Fragmented but concentration tendencies

1086 (2011)

0.4%

Poland

High

Monthly

Professional

High

Manpower (US)

1–2%

90%

350

1.0%

Sweden

Client workers

Client firms

Users of temporary staffing agencies

Role of temporary staffing industry trade bodies

Representatives of temporary staffing industry

Role of trade unions

Acceptance

Acceptance

Weak

Strong but weakening

Medium but liberalising

Regulation of labour market/ welfare state

Labour organizations

Light

Regulation of temporary staffing industry

Australia

Rapid acceptance

Rapid acceptance amongst transnationals, slower acceptance amongst domestics

Weak but getting stronger

Medium

Liberalising

Liberalising

Czech Republic

Components of National Temporary Staffing “Markets”

Nation-state regulation

Table 5.9

Slow acceptance

Slow acceptance

Strong

Strong

Strong

Light

Japan

Rapid acceptance

Rapid acceptance amongst transnationals, slower acceptance amongst domestics

Weak but getting stronger

Medium

Strong but liberalising

Liberalising

Poland

Acceptance

Acceptance

Strong

Strong

Strong

Light

Sweden

Most important “combination” of social and economic factors

Transnational temporary staffing agencies Role of transnationals

Extent of domestic innovation Domestic firm internationalisation

Domestic temporary staffing agencies Role of domestic sector

Role of business campaigners and lobbyists

Representatives of business

State-level industrial relations and geographical segmentation of market

Societal adaptation to new labour market norms

Medium

Low

Medium

Weak

Low

Medium

Growing acceptance and support

Medium

Strong

Supportive

Strong preference to use domestic staffing agencies

Weak

Low but possible

High

Very strong

Supportive

Societal adaptation to new labour market norms

Medium

Low

Low

Medium

Growing acceptance and support

Widespread collective agreements

Strong

Medium

Low

Medium

Supportive

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to both the concentrated nature of the industry and the clustering around major cities (such as Gothenburg and Stockholm). In some countries the numbers of temporary staffing agencies are still growing quickly (Japan), or slowly (Australia, Czech Republic and Poland), whereas in others they are rather static (Sweden). Third, the markets are relatively concentrated compared to the largest national markets, the UK and the US, where the largest temporary staffing agencies have no more than a 5 per cent share of the temporary staffing market. Australia’s temporary staffing market effectively consists of a number of subnational markets, due to the organisation of its space economy and the strong role of subnational labour regulation. In Sweden, the strong presence of collective agreements and a historically embedded welfare state regime has produced relatively high barriers to entry and expansion in the country’s temporary staffing industry. As a result the market is made up of a small number of large domestic and transnational temporary staffing agencies. In both the Czech Republic and Poland, where a market for temporary staffing agencies has only been under construction since the mid-2000s, we are witnessing initially fragmented industries becoming more concentrated as larger temporary staffing agencies slowly increase their market share. Fourth, data on each country’s share of the global temporary staffing market reveals that while the Czech Republic and Poland continue to expand, their overall value remains relatively small. Australia’s and Sweden’s shares remain rather static in the context of a growing global market. However, Japan experienced very high rates of growth during the 2000s, triggered by deregulation of the national industry and high profit margins. It now constitutes almost a quarter of the value of the global market, which is more than the US (22 per cent) and the UK (12 per cent) (CIETT 2011). Fifth, the profit margins differ from one country to another, reflecting the coordinated and institutionalised nature of the markets. So margins are relatively low in Australia, the Czech Republic and Poland, where barriers to entry are negligible, where the reregulation of the industry has been favourable to expansion and where agencies have struggled to grow their market presence. On the other hand, in both Japan and Sweden profit margins are high, due to the relatively high barriers to entry and expansion and to tight labour regulation of both the employment relationship and the use of those placed through temporary staffing agencies. Sixth, there is some variation across the nations in terms of the industrial sectors most dominant in the temporary staffing markets and the nature of the contracts between agencies and workers. Manufacturing, the original sector in the economies with the most mature temporary staffing markets—the UK and the US—is important in Australia, the Czech Republic and Poland. In Japan it is the clerical and office sector in which temporary staffing agencies do the bulk of their business—although manufacturing placements are now expanding rapidly—whereas in Sweden it is the professional sector in which temporary staffing agencies are most prevalent. All of which maps neatly onto

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the duration of the contracts in the different temporary staffing markets, whereby the manufacturing sectors tend to be characterised by shorter term contracts (daily/weekly), while the professional sector is characterised by longer, monthly contracts. Seventh, the particularities of the different markets demand that transnational staffing agencies have to adapt—or territorially embed—their business models and practices to varying degrees in order to meet the needs of local conditions. In the Czech Republic and Poland, for instance, the central role played by transnational agencies in market formation has meant that they have had to adapt their standard business models to a lesser degree that in Australia and Sweden, where the nature of labour market regulation and collective bargaining necessitates significant adaptation. Japan, in turn, offers an extreme example where a very high degree of adaptation is required, and even that may not be enough to secure competitive success in a market dominated by domestic players and distinctive business practices (Coe, Johns and Ward 2012). Another way of thinking about these countries is how the different economic and social actors combine to produce nationally distinctive temporary staffing markets in each country. This is set out in Table 5.9. In each case study country the different actors come together in specific ways to construct a particular type of market for temporary staffing. In the case of Australia, for example, the most important factor shaping the country’s temporary staffing market is the industrial relations regulations that exist at the state rather than the national level. There is little regulation of the temporary staffing industry—in a number of Australian states temporary staffing agencies do not even need a licence to practice. Here Australia is similar to the UK and the US. With high levels of competition amongst agencies, and ongoing rounds of intense merger and acquisition activity, Australia’s temporary staffing market also bears similarities to those of the UK and US in structural terms. A cursory reading of these commonalities might lead one to simply “pigeonhole” the Australian market as a broadly neoliberal “temporary employment regime” (Peck and Theodore 2002). However, we suggest that this would be a mistake. Significantly, Australia’s mainstream employment relationship remains highly regulated when compared to those of the UK and the US, despite the recent liberalisation seen, for example, in the growth of enterprise-level agreements. It retains a strong industrial relations system in the form of awards and agreements, even if the coverage is becoming ever more partial and perforated as the role of national trade unions weakens. The result is a regulatory system that is both hybrid—a complex combination of elements of historic social democratic and more recent neoliberal policies—and multi-scalar—variously combining elements of federal, state, enterprise and individual practices. This means that the “national” market resembles a series of interconnected but also discrete subnational markets for temporary staffing, each with their own regulatory system. These markets are clustered around major cities such as Melbourne and Sydney, and in this institutional context transnational temporary staffing

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agencies have struggled to grow their market share. Barriers to significant expansion exist in the form of adjusting to the different subnational regulations and competing against domestic agencies familiar with local market conditions, and thus the market remains one in which transnational agencies continue to struggle to grow market share. In the cases of the Czech Republic and Poland the emergence of a temporary staffing market was brought about by the official recognition of temporary staffing in legislation, alongside a more general set of changes in the labour markets associated with the emergence of post-socialism. New licensing legislation in the mid-2000s marked the first acknowledgement of the emerging market for temporary staffing in both countries. In the context of a liberalising of the regulation of the mainstream employment relationship as part of a wider suite of post-socialist reforms, and the gradual weakening of national labour unions, transnational temporary staffing agencies have found the conditions favourable for their entry and expansion. The largest agencies entered both national markets on the back of existing relationships with transnational clients that had previously entered both economies and required workers on a temporary basis. Once established, the transnational temporary staffing agencies began to grow their market share through expanding their client base amongst domestic firms. They then played an important role in the emergence and expansion of the temporary staffing markets in both the Czech Republic and Poland, supported by the activities of CIETT, who reached out to the fledgling national trade bodies in both countries. In the case of Japan, the market for temporary staffing has been forged by a gradual dismantling of the regulation of the temporary staffing industry. Successive government deregulation of the industry has been the single most important shaper of the pace and nature of growth of the country’s temporary staffing market. Industrial sectors in which the placement of temporary agency workers had historically been banned were gradually opened up, creating new markets for temporary staffing agencies. Alongside this came a growing (if sometimes begrudging) acceptance amongst client firms and workers of temporary staffing and the role temporary staffing has played in contemporary economies around the world. CIETT played an important role in supporting the emergence of the market, backed by domestic representatives of business. Despite the relatively early market entries of Manpower and Adecco, and their influence in shaping the timing and form of the market—and the subsequent entry of other transnational temporary staffing agencies such as Vedior (1999), Robert Walters (2000) and Michael Page (2001)—the Japanese temporary staffing market has not been one in which transnational agencies have dominated. Rather, it is large domestic agencies that have determined the way in which the market has expanded in recent years. The relative impotency of the transnational temporary staffing agencies stems from the preference of client firms for using Japanese suppliers of temporary agency workers, the nature of business practices in the

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wider Japanese societal system and the aggressive nature in which domestic agencies have grown their businesses, and hence the market for temporary staffing, in Japan. Finally, in the case of Sweden, although the market for temporary staffing has been long established, it exists within a wider institutional environment shaped by a series of collective agreements and a heavily regulated labour market. Sweden’s version of the Nordic social welfare model balances a variety of “flexible” employment forms with relatively high levels of social welfare. This is done through a combination of collective bargaining, social benefits and active labour market policies (Thorsén and Brunk 2009). So, while the regulation of temporary staffing resembles that in the UK and the US and is minimal, unlike those two markets, the wider regulatory system means that temporary agency workers are covered in and through other labour agreements. This reduces some of the cost advantages to client firms in using workers placed through temporary staffing agencies. National labour unions remain strong in Sweden, with the coordinated nature of economic activity negating the more neoliberal consequences of a sizeable temporary staffing market. Transnational temporary staffing agencies have been present in the country for a number of years, but rates of growth remain small, and the wider collectivised and institutionalised labour systems limit significant opportunities for market growth. 4.

CONCLUSION

According to Rubery (2010: 521) “there will be different responses at national level to the common problems posed by the diversification of employment forms and the increasing unacceptability of a welfare system predicated on a male breadwinner model of family and employment organization.” This chapter has focused on these different “responses,” in the context of the “making” of national temporary staffing markers. Our argument has been that the size, internal structure, rates of growth and implications for the “mainstream” economy of the temporary staffing market are likely to be the result of the regulatory settlement produced at the interface of the national regulation of the industry, the labour market and the welfare system, on the one hand, and on the different types of activities of other actors, including transnational temporary staffing agencies, on the other. Our results from the five case study countries reveal four distinctive types of temporary staffing “markets,” reflecting the nature of the neoliberal, social-democratic, corporatist and post-socialist environments in which they are embedded. Different “rules of the game” can be seen in each, as different combinations of regulated temporary staffing markets, labour markets and welfare systems combine to shape the relationships between economic and social actors and produce distinct temporary staffing markets.

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Key findings of our research are that there is significant variation within ideal types of national economies as well as between them and that transnational actors play a significant, if variable, role in the constitution of “national” temporary staffing markets. For instance, if we “zoom in” to look at the post-socialist cases of Poland and the Czech Republic, there are subtle but important differences between the structure and operation of the industry in each country, relating to their particular economic structures and institutional histories. Overall, it is impossible to overstate the importance of highly variable and nationally specific labour and welfare regimes in shaping the emergence and evolution of temporary staffing markets. Our argument has been that the kind of institutional approach we have presented in this chapter reveals the role of temporary staffing agencies and those that represent them in the making of markets for flexible forms of employment. This is about more than just those placed through temporary staffing agencies. As their involvement in modern labour markets has expanded, both in terms of size and in terms of the range of services they provide, their shadow has been cast high and wide. At the same time as we have witnessed temporary staffing agencies emerge as institutional actors we have also seen a particularly neoliberal reregulation of labour markets and the emergence of a series of new norms about the “standard” employment relationship.

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CIETT. (2006) Statistics 2005 [online]. Available at: http://www.ciett.org [Accessed 12 October 2006]. Coe, N. M., Johns, J. L. and Ward, K. (2007) Mapping the globalisation of the temporary staffing industry, Professional Geographer, 59 (4), pp. 503–520. Coe, N. M., Johns, J. L. and Ward, K. (2008) Flexibility in action: the temporary staffing industry in the Czech Republic and Poland, Environment and Planning A, 40 (6), pp. 1391–1415. Coe, N. M., Johns, J. L. and Ward, K. (2009) Managed flexibility: labour regulation, corporate strategies and market dynamics in the Swedish temporary staffing industry, European Urban and Regional Studies, 16 (1), pp. 65–85. Coe, N. M., Johns, J. L. and Ward, K. (2011) Transforming the Japanese labour market: deregulation and the rise of temporary staffing, Regional Studies, 45 (8), pp. 1091–1106. Coe, N. M., Johns, J. L. and Ward, K. (2012) Limits to expansion: transnational corporations and territorial embeddedness in the Japanese temporary staffing market, Global Networks, 12 (1), pp. 22–47. Degiuli, F. (2002) The introduction of temporary work in Italy: how flexibility becomes routine. Conference presentation [online]. Los Angeles, California: Institute for Labour and Employment. Available at: http://www.iir.ucla.edu/research/ grad_conf/2003/degiuli.pdf [Accessed 28 September 2012]. Esping-Andersen, G. (1990) The three worlds of welfare capitalism. Cambridge: Polity Press. Esping-Andersen, G. (1999) Social foundations of postindustrial economies. Oxford: Oxford Scholarship Online Monographs. Eurostat. (2006) EU labour force survey principal results 2005 [online]. Available at: http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-NK-06–013/EN/KSNK-06-013-EN.PDF [Accessed 13 December 2006]. Hall, P. A. and Soskice, D. (eds.) (2001) Varieties of capitalism: the institutional foundations of comparative advantage. Oxford: Oxford University Press. Heery, E. (2004) The trade union response to agency labour in Britain, Industrial Relations Journal, 35, pp. 434–450. Imai, J. and Shire, K. (2006) Employment deregulation and the expanding market for temporary labour in Japan, in: Haak, R. (ed.) The changing structure of labour in Japan—Japanese human resource management between continuity and innovation. Basingstoke: Palgrave Macmillan, pp. 113–129. MacKenzie, D., Muniesa, F. and Siu, L. (eds.) (2007) Do economists make markets? On the performativity of economics. Princeton, NJ: Princeton University Press. Mitlacher, L. W. (2007) The role of temporary agency work in different industrial relations systems: a comparison between Germany and the USA, British Journal of Industrial Relations, 45 (3), pp. 581–606. Nannicini, T. (2004) The take-off of temporary employment in the Italian labour market. EUI Working Paper ECO No. 2004/9. Florence: European University Institute. Nystrom, B. (2005) The evolving structure of collective bargaining in Europe 1990– 2004. National report—Sweden. The evolving structure of collective bargaining: a comparative analysis based on national reports in the countries of the European Union [project report]. Florence: University of Florence-European Commission. Peck, J. and Theodore, N. (2002) Temped out? Industry rhetoric, labor regulation and economic restructuring in the temporary staffing business, Economic and Industrial Democracy, 23 (2), pp. 143–175. Peck, J. and Theodore, N. (2007a) Flexible recession: the temporary staffing industry and mediated work in the US, Cambridge Journal of Economics, 31 (2), pp. 171–192. Peck, J. and Theodore, N. (2007b) Variegated capitalism, Progress in Human Geography, 31 (6), pp. 731–772.

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Peck, J., Theodore, N. and Ward, K. (2005) Constructing markets for temporary labour: employment, liberalisation and the internationalization of the staffing industry, Global Network, 5 (1), pp. 3–26. Recruitment and Employment Confederation (2006) 2004/5 annual recruitment industry survey. London: Recruitment and Employment Confederation. Rubery, J. (2010) Institutionalizing the employment relationship, in: Morgan, G., Campbell, J. L., Crouch, C., Pederson, O. V. and Whitley, R. (eds.) The Oxford handbook of comparative institutional analysis. Oxford: Oxford University Press, pp. 497–526. Soskice, D. (1999) Divergent production regimes in the 1980s and 1990s, in: Kitchelt, H., Lange, P. and Marks, G. (eds.) Continuity and change in contemporary capitalism. New York: Cambridge University Press, pp. 101–134. Storrie, D. (2002) Temporary agency work in the European Union. Dublin: European Foundation for the Improvement in Living and Working Conditions. Thelen, K. (2010) Beyond comparative statics: historical institutional approaches to stability and change in the political economy of labour, in: Morgan, G., Campbell, J. L., Crouch, C., Pederson, O. V. and Whitley, R. (eds.) The Oxford handbook of comparative institutional analysis. Oxford: Oxford University Press, pp. 41–61 . Theodore, N. and Peck, J. (2002) The temporary staffing industry: growth imperatives and limits to contingency, Economic Geography, 78 (4), pp. 463–494. Thorsén, Y. and Brunk, T. (2009) Sweden: flexicurity and industrial relations [online]. European Industrial Relations Observatory On-Line. Available at: http:// www.eurofound.europa.eu/eiro/studies/TN0803038s/se0803039q.htm [Accessed 28 September 2012]. Vitils, K. (2004) Reforming the German labour market: the case of temporary agency work, Competition and Change, 8 (4), pp. 375–389. Walwei, U. (1996) Improving job matching through placement services, in: Schmid, G., O’Reilly, J. and Schömann, X. (eds.) International handbook of labour market policy and evaluation. Cheltenham: Edward Elgar, pp. 402–430 . Ward, K. (2003) UK temporary staffing: industry structure and evolutionary dynamics, Environment and Planning A, 35 (5), pp. 889–909. Ward, K. (2005) Making Manchester “flexible”: competition and change in the temporary staffing industry, Geoforum, 36 (2), pp. 223–240. Whitley, R. (1992) Business systems in East Asia: firms, markets and societies. London: Sage. Whitley, R. (1999) Divergent capitalisms: the social structuring and change of business systems. Oxford: Oxford University Press.

NOTES 1. Acknowledgments: Previous versions of this paper were presented to the ESRC Seminar on Changing Cultures of Competitiveness (University of Manchester, July 2008) and the Second Conference on Regulating for Decent Work (ILO, Geneva, July 2011). We thank those audiences for their helpful and supportive feedback and to the editors for their supportive comments on this chapter. We also gratefully acknowledge the research assistance of Jennifer Johns, particularly in producing the data for Figure 5.4. and Table 5.6. The usual disclaimers apply. 2. Our empirical evidence is drawn from a large ESRC-funded project entitled The Globalization of Temporary Staffing that ran from 2004 to 2006. The overall aim of the project was to examine the geographical expansion and

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service diversification of the largest transnational staffing agencies, with a focus on the markets of Australia, the Czech Republic, Japan, Poland and Sweden. In addition to the extensive collection and analysis of secondary data, for the country case studies semistructured interviews with senior executives in transnational and domestic temporary staffing agencies, labour unions, industry trade bodies and government departments proved to be the most insightful way of addressing the research objectives. We have subsequently undertaken follow-up work on the 2006 to 2010 period to explore how the markets have fared under conditions of economic growth and, more recently, economic crisis.

6

The Persistence of Unfree Labour The Rise of Temporary Employment Agencies in South Africa and Namibia1 Paul Benjamin

1.

INTRODUCTION

The discovery of gold in South Africa in 1886 led to the imposition of a system of migrant contract labour that continues to be a dominant feature of the South African labour market. The colonial government imposed a range of repressive measures including influx control, restrictions on land ownership and poll taxes to extract an adequate supply of cheap labour to the mines and the industrial sector that grew up alongside the mines. The Masters and Servants Laws, which remained in force until 1974, criminalised breaches of contract by employees. Influx control measures were strengthened after 1948, and all Africans were required to carry passes. African employees who did not reside permanently in urban areas were required to return annually to the apartheid-created homelands to renew their contracts. They were not permitted to remain in urban areas beyond their employment or to bring their families to reside with them. Employees in the mining industry were required to conclude contracts through a single recruitment agency controlled by the mining houses. Employees seeking work in other economic sectors situated in urban areas were required to obtain employment through the state labour bureaux. In Namibia, which South Africa governed under a League of Nations mandate after World War I, the South African administration imposed a similarly vicious system of influx control from the 1940s onwards. Employees seeking work were required do so through the much-hated migrant labour system operated by the South West African Native Labour Association in terms which required employees to wear badges or tags indicating the type of work designated to them and areas in which they were entitled to be employed. After widespread strikes by migrant workers in Owamboland in Northern Namibia in 1972, the system was replaced by a labour bureau system, which remained in force until Namibia gained independence in 1990.2 As this brief discussion illustrates, the use of contract labour as a system of labour control has a long and ugly past in southern Africa resulting in extreme forms of labour unfreedom. This history helps explain the

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contemporary regulatory stance to labour hire in Namibia and South Africa. Different forms of labour contracting and outsourcing have contributed to the informalisation of employment relations and the proliferation of unfree and precarious labour. A strike at a South African gold mine signalled the emergence of contract labour as one of the most controversial and divisive issues in South African labour market debates in the twenty-first century. In October 2002, some four thousand workers at the century-old East Rand Proprietary Mine gold mine east of Johannesburg went on strike. Virtually all of the mine’s workforce were employed by a labour broker—at wages below the industry standard—rather than by the mine owners. The striking workers demanded that the labour broker pay them money it had received from the mine, which they felt was part of their wages. Until shortly before the strike, most of the workers apparently believed they were employed by the mine. The mine terminated its contract with the labour broker because it had failed to provide an uninterrupted supply of labour, leaving all four thousand employees unemployed and the mine without a workforce. The mine, after mediation, subsequently reemployed 70 per cent of their workers at wages in line with industry practice (Bezuidenhout 2008). The 2002 strike highlighted the extent to which labour brokering had been used to minimise employees’ labour law protections and led the Department of Labour to commission research to understand the dynamics of labour brokering. Although this research led to proposals for legislation to regulate labour brokering, at the time of writing, a decade after the strike, legislation has not yet been enacted, despite the issue dominating labour policy debates during this period. After 2007, influenced by developments in Namibia, this debate has focused on whether the operation of labour brokers should be regulated to prevent abusive practices or prohibited. Trade unionists and politicians in both South Africa and Namibia have called for a total prohibition of labour hire, and the issue has become one of the most high-profile political issues in both countries. In Namibia, a prohibition on labour hire was enacted by its parliament in 2007 but was subsequently ruled to be unconstitutional by the country’s supreme court in 2009. In 2012, a further set of legislative amendments, which effectively prevent labour hire, came into effect. In South Africa, legislation that sought to prevent all triangular employment was published by the government in 2010 but was subsequently withdrawn because of significant difficulties with the approach it adopted. Legislation seeking to regulate labour hire and address the abuses associated with it was tabled in 2012. This chapter traces the evolution of the interwoven debates on the regulation of temporary employment services in these two countries and highlights the extent to which the historical and legal aspects of repressive and unfree contract labour have shaped that debate. A brief overview of the international and comparative context shows that the preference for prohibiting labour hire rubs against the contemporary regulatory grain. Internationally

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the trajectory is towards regulating, rather than prohibiting, private employment agencies (including those who provide labour hire). However, as will be discussed in a chronological narrative, the specific and related histories of Namibia and South Africa have led these two countries to follow a different regulatory path. 2.

INTERNATIONAL LABOUR STANDARDS

Labour hire is the most common form of triangular employment. The three parties involved are the supplying agency, the supplied worker and the client or user enterprise. Triangular employment can be usefully viewed as an employment relationship in which the recruitment, dismissal and employment functions conventionally performed by an employer are outsourced to an intermediary while the “task side” of the relationship is not outsourced (Davies and Freedland 2004: 141). The intermediary administers the employment relationship whereas the client/employer exercises control over the worker’s day-to-day working activities. In other words, the agency supplies its clients with employees to work under the client’s instruction. Whether—and to what extent—these workers are employees and, if so, how the employer’s obligations under law should be allocated between agency and user are subjects that virtually all labour law systems have engaged, and there is no resolution in the foreseeable future. The ILO’s Private Employment Agencies Convention 181 of 1997 is the first international instrument that recognises and seeks to provide a basis for regulating labour hire. The convention recognises that there are two primary functions performed by the broader category of private employment agencies. The first of these is the service of matching offers of, and applications for, employment, without the agency becoming a party to the employment relationships that may arise. Secondly is employing workers with a view to making them available to a third party (generally referred to as a “user enterprise”) that assigns their tasks and supervises the execution of these tasks. Previous international standards such as the Fee-Charging Employment Agencies Convention 34 of 1933 and the revised Convention 96 of 1949 had dealt exclusively with the first of these two functions. These conventions showed a preference for the recruitment and placement of employees to be performed by public agencies rather than fee-charging private agencies because of the abuses and exploitation associated with employment agencies. However, the 1949 standard permitted countries to operate a licensed and regulated private system in “exceptional circumstances” in which a public system was not appropriate (Art. 5). By contrast, the Private Employment Agencies Convention 181 of 1997 deals with the role of private employment agencies in performing both recruitment and labour hire functions. Countries that ratify the convention may nevertheless prohibit the operation of employment agencies in

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particular sections of the economy (Art. 2(4)). Agencies are prohibited from charging employees fees (Art. 7). Although the convention does not make a system of licensing mandatory for ratifying countries, it does require that they have adequate machinery for lodging and investigating complaints concerning agencies (Art. 10). The 1997 convention seeks to ensure that workers placed in user enterprises by employment agencies receive adequate protection under labour law as well as protection against discrimination and violation of their privacy rights. The key provision giving effect to this approach requires that ratifying countries should enact legislation stipulating the responsibilities of agencies and user enterprises in ensuring the protection of placed workers in respect to freedom of association, collective bargaining, wages and conditions of employment, social security benefits, health and safety and other aspects of labour law (Art. 12). However, neither the convention nor its accompanying recommendation take adequate cognisance of the fact that permitting an agency to be the employer of someone working under the control of a user enterprise involves a significant departure from the conventional position in labour law that individuals are the employees of those entities for whom they work. The convention does not deal with the circumstances that countries should take into account in deciding whether to permit agencies to be classified as employers (Vosko 1997), nor does it address the security of employment of workers engaged through private employment services. Although the convention recognises that temporary employment agencies can be the employers of workers they place, it is evident that its drafters did not anticipate the extent to which this legal fiction would come be used (in Namibia, South Africa and many other countries) as a technique to deprive employees, whose work was by no means temporary, of labour law protections. The Employment Relationship Recommendation (198) of 2006 is the only international instrument that addresses this issue through its nonbinding recommendation that countries should adopt a national policy to ensure that employed workers, including those engaged in multiparty relationships, should have the protection they are due. In contrast to the ILO Private Employment Agencies Convention, the key trend in recent regulatory activity has been the extension of the principles of equality and nondiscrimination to placed employees. This has emerged as the key strategy to ensure that agency work and nonstandard employment do not lead to a “race to the bottom.” This trend is well illustrated by the 2008/104 EC Directive on Temporary Agency Work, which seeks to establish a framework for regulating the working conditions of temporary agency workers and obliges European Union member states to review existing restrictions imposed on temporary work agencies. From 2011, countries may only prohibit agency work if they can make a case that it is in the general interest, on health and safety grounds, to ensure labour market functioning or prevent abuse.

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The directive requires employers to provide temporary agency workers with the same rights as permanent workers with regards to pay, working time, overtime, breaks, rest periods, night work, holidays and public holidays and protection against discrimination (Art. 5). As discussed in Wynn (chapter 3, this volume), in the UK, the principle of equal treatment will apply to agency workers after twelve weeks of employment.3 The extent to which countries may derogate from the principle of equal treatment has attracted criticism (Countouris and Horton 2009). The requirement for parity of conditions of employed between placed worker and the direct employees of a user enterprise is not confined to developed economies. For instance, since 2006 Korea has required equal treatment of regular and precarious employees.4 An employer cannot unjustifiably discriminate5 against fixed-term, part-time or agency employees on account of their employment status when compared with other employees engaged in the same or similar work. However, trade unions have expressed the concern that precarious employees are not able to effectively utilise these protections and have proposed two reforms: that trade unions should be able to bring claims on behalf of employees and the use of sectoral comparators (Yun 2009). Likewise, China’s Labour Contract Law of 20076 requires labour hire workers to be paid at the same rate as workers in the user firm who are engaged in similar work (Art. 63) and to receive the same overtime rates and benefits. However, as Xu (chapter 7, this volume) points out, these requirements are often flouted (Cooney et al. 2007). As we shall see, the approaches adopted in Namibia and South Africa move from recognising employment agencies and labour brokers as employers, to protecting workers employed through agencies, to attempting (unsuccessfully) to ban labour brokers. 3.

REGULATING LABOUR HIRE IN SOUTH AFRICA

During the apartheid era African workers working in urban areas were required to conclude annual labour contracts with their employers through the state-run employment bureau. Even workers who had lengthy periods of employment in urban areas were required to return to rural homeland areas to conclude these contracts. According to the apartheid-era influx control legislation, this break in their employment prevented them from acquiring the right to reside permanently in an urban area with their families, which was restricted to employees who could demonstrate ten years of continuous employment in an urban area. In 1980, test-case litigation led to a judicial ruling that migrant workers acquired the right to permanent residence in an urban area if they had completed ten successive annual contracts in an urban area (see Abel 1995). In 1986, the influx control system, including the much-hated legal requirement to carry a pass, was removed from the statute books.

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There are no historical studies of the emergence of labour hire in South Africa. However, it is probable that the initial impetus for the emergence lies in the loosening of influx control in the 1970s and 1980s as employers began to turn to sources other than the government labour bureaux to meet the labour requirements. South African law first recognised triangular employment when the concept of a “labour broker” was introduced into legislation in 1983.7 Labour brokers were “deemed” to be the employers of individuals they supplied to clients provided they paid them their remuneration. The rationale for the introduction of the provision was that firms within the growing labour hire sector had structured their relationships with the workers they placed in such a way that they were not receiving the protection of statutory wage-regulating measures (Brassey and Cheadle 1983). “Deeming” clarified that the agency was the employer but gave rise to other problems as employees became vulnerable to exploitation by “fly-by-night” labour brokers, the so-called “bakkie brigade,”8 who frequently absconded without making full payment.9 This concern was uppermost during the drafting of the postapartheid 1995 Labour Relations Act (LRA). The idea that labour brokers (renamed as temporary employment services) are the employers of employees they place with clients and remunerate accordingly was retained. However, the client was made jointly and severally liable for breaches of the Basic Conditions of Employment Act, sectoral determinations, collective agreements and arbitration awards but not for unfair dismissal or breaches of contracts of employment.10 As a result, if the labour broker fails to pay an employee any amount (such as wages or leave pay) the employee is entitled to, the employee can claim that amount from the client enterprise for whom he or she works, irrespective of whether the client has already paid the broker. In theory, joint and several liability should encourage businesses to contract with labour brokers who comply with the law in order to avoid the risk claims by placed employees who have not been paid by the broker. While the initial 1983 provision required labour brokers to register, this requirement fell away with the 1995 LRA. While the legislation was enacted to regulate the temporary employment sector, it has become a vehicle for permanent triangular employment. Despite the use of the term “temporary employment service” (TES), its application is not limited to agencies supplying temporary employees. The shift to permanent triangular employment, coupled with the fact that joint and several liability does not extend to unfair dismissal protection11 and the contract of employment, has led to widespread permanent triangular employment of employees who generally earn less than those workers hired directly by the employer (Bezuidenhout, Godfrey and Theron 2004). The act applies to workers who are placed to work with clients as if they were its employees. Their coverage by labour law depends on whether their relationship with the client meets the test of an employment relationship.12 The rationale for “deeming” the agency as the employer is apparent when

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one examines the position of the classic “temp”—an administrative worker on the books of an employment agency who undertakes short-term assignments at companies that are clients of the agency when their core staff are absent or if there is a sudden demand for extra administrative capacity. These workers have a closer and more continuous relationship with their agency than with any of the businesses where they actually work. It is the agency that is likely to provide the employee with training or benefits such as medical aid and pension, and it is the agency with which the employee is likely to negotiate rates. No doubt the image of this type of worker was in the minds of legislators when they introduced the concept of the labour broker in 1983 and when it was modified in 1995. However, in a situation of high unemployment, this may translate into occasional periods of employment. The social benefit of the agency as the employer is illustrated by agencies that supply health care workers to provide home-based round-the-clock health care for old or ill persons. The specialised agencies that provide workers to perform these functions fall within the definition of a TES in terms of section 198 of the LRA and are therefore the employers of these nurses even though they are working for a patient or family. If this were not the case, a family would have to hire three or four nurses to ensure round-the-clock coverage. When the patient passes away or recovers, the nurses are allocated to different assignments as and when these become available. The agency deducts and pays each employee’s social insurance contributions as well any income tax that is due. In the absence of a provision such as section 198, the nurses would be the employees of the numerous individual families they work for and would be required to follow up any failure to pay or provide benefits against the individual family. However, the rationale for the agency to be the employer breaks down once an employee’s placement with a firm is no longer temporary and the employee has a closer relationship with the client than the agency. It is an entirely artificial construction (and one that gives rise to immense scope for abuse) to permit an agency to be the employer of an employee working on an ongoing or indefinite basis for a “client” merely because the employee’s pay is routed through the agency. The broad legislative definition of a temporary employment service means that the persons and organisations falling within its terms are very heterogeneous, ranging from large multinational corporations and well-established firms that supply particular categories of skilled employees to “informal recruiters” such as seasonal farm workers who are asked by a farmer to bring a few other workers to work on the farm. Provided the employer uses the “recruiting” employee as a conduit to pay the other workers, that employee becomes a temporary employment service and the farmer is not the employer (except for purposes of compliance with health and safety legislation). The combination of lax regulation of labour brokering, patriarchal employment relations in agriculture and high rural unemployment has

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made labour brokering a particularly effective method for exploitation and labour law avoidance in the countryside (Women on Farms Project 2005). There is evidence from studies of both arbitration awards (Theron 2005) and sociological research (Webster et al. 2008) that employees are often unsure whether they are employed by an agency or by the business where they work. Arbitration awards show that employees who are dismissed refer cases against the enterprise they consider to be their employer only to be met with the defence that their “legal” employer is an agency who recruited them or to whom they were transferred. Reported case law includes instances of employers dismissing placed employees who participated in a legal strike,13 employers “transferring” their employees to a TES14 and employees who were unaware that their employer was in fact the TES.15 For many years labour court judges tended to construe section 198 in an extremely literal manner with the result that employees were left without a remedy in all but the most egregious cases. The almost inevitable consequence was that a claim for unfair dismissal by a placed employee failed because no challenge could be made to the client’s rationale for requesting the termination of the client’s assignment. As long as the client remained on the books of the agency, there had not been a dismissal even if the agency did not offer the employee another assignment. Only in the last two years did labour court judges begin to fashion remedies that give a measure of employment security to employees placed by labour brokers.16 These judgments have adopted a more purposive approach and have proceeded from the premise that the section was not intended to deprive employees of protection against unfair labour practices, including unfair dismissal. There are a number of ways in which the act is an unhappy fit for employees placed by labour brokers. One of the clearest illustrations is the concept of the “workplace” that is used to determine whether the trade union has sufficient employee support (representivity) for the purposes of gaining organisational rights. One of the distinctive features of the postapartheid labour law regime is its promotion of collective bargaining by allowing trade unions to acquire organisational rights rather than a legally enforceable “duty to bargain” (Benjamin 2000). The statutory organisational rights pertain to the deduction of union subscriptions, access by union officials to employer premises to conduct union business (including recruiting members and conducting ballots), recognition by the employer of elected trade union representatives, time off for union office-bearers for union business and training and the disclosure of information for the purposes of collective bargaining.17 This formula allows for the basic elements of recognition to be established without recourse to either strikes or drawn-out litigation. Employees placed by labour brokers do not work at a workplace belonging to their employer and may seldom, if ever, enter their employer’s premises.18 Those who are permanently placed by labour brokers cannot process a demand calling on their effective employer to bargain with them because they are not in law employed by them. Likewise the fact that the “client user

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enterprise” is not their statutory employer means that wage differentiation in the workplace does not amount to proscribed discrimination. These difficulties illustrate the shortcomings of the approach of ILO’s 1997 convention; the fact that the law attributes responsibility for compliance with an aspect of labour law to one of the parties does not ensure that workers can exercise those rights effectively. There can be little doubt that section 198 in its current form offends the constitutional entrenchment of labour rights guaranteed in terms of section 23 of the South African Constitution. These rights include protection against unfair labour practices, the right to belong to a trade union, the right of trade unions and employers to engage in collective bargaining and the right to strike. Employees placed by TESs to work for client enterprises are unable to exercise organisational rights or participate in collective bargaining and do not have effective security of employment. However, no serious legal attack has been mounted on the section’s constitutionality, and there has been little strategic litigation aimed at persuading courts to give the section an interpretation most favourable to placed employees. The attack on the section has occurred mainly at the political and collective bargaining levels. Trade unions have directed, and processed through the statutory conciliation system, demands that have led to public and private sector employers agreeing to phase out the use of labour brokers.19 In a number of sectors in which collective bargaining takes place through bargaining councils, collective agreements have been concluded restricting the proportion of the workforce that employers can engage through temporary employment services. There has been an exponential growth in the number of employees placed by labour brokers, particularly in the period after 2000. In 1995, it was estimated that some three thousand labour brokers were placing an estimated 100,000 employees annually (Standing et al. 1996). In late 2010, the National Association of Bargaining Councils estimated that 780,000 employees were placed by TESs in the private sector, representing 6.5 per cent of the total workforce.20 This figure, which was calculated by extrapolating from the number of placed employees in sectors with bargaining councils, may well underestimate the full extent of employment through labour brokers as it does not take account of smaller brokers who do not belong to the industry associations. The interpretation of these figures has been a further source of controversy. Spokespersons for the labour-broking sector claim the growth in the number of employees placed indicates that labour-broking firms play a major role in creating jobs. Although this claim is made with monotonous regularity, there is no evidence to support the claim that these figures reflect the creation of “new” jobs as opposed to positions in which agency employees have been substituted for workers who previously worked directly for the employer. There is evidence from case law of practices in which employers pressurised employees to apply for their own jobs at lower rates or retrenched employees to replace them with workers supplied by labour brokers (Benjamin 2012).

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That the growth in agencies increased sharply from 2000 onwards indicates that labour law avoidance is a major force contributing to the rise in labour brokering.21 Prior to 2000, “independent” contracting was the prevalent mechanism for disguised employment. However, at this stage the courts began to cast a more critical eye over these arrangements, and a presumption of employment to curb disguised employment was introduced into labour legislation in 2002.22 A 2003 research project commissioned by the Department of Labour was the first report to argue that strategies of externalising work (in particular outsourcing and labour brokering) were a major driver of the informalisation of work in South Africa, rather than casualisation by hiring temporary and part-time workers (Bezuidenhout et al. 2004). Labour brokering had been utilised by firms to reduce standard employment in order to bring down labour costs and minimise risks associated with employment. The report concluded that workers supplied by TESs are paid significantly less than those employed directly by the firms where they work and have no security of employment. The report also pointed out that while the avoidance of legislation has provided the motive for firms to use TESs, the legislative provisions concerning TESs had provided the opportunity. The report identified the legislative provisions regulating labour brokering as a particular priority for policy and legislative reform. While these proposals were tabled in the tripartite labour advisory forum, the National Economic Development and Labour Advisory Council (NEDLAC) in 2004, no report or recommendation emerged from its deliberations. A number of subsequent reports confirm the trend towards the use of temporary employment services. A 2008 report, again commissioned by the Department of Labour, proposes outlawing labour brokers who merely act as employers of subcontracted labour, except for those at the higher end of the labour market who provide workers with specialised skills (Webster et al. 2008).23 The authors go on to suggest that, before amending the law, it would be necessary to examine the response of employers to the ban on labour brokers in Namibia. This look north across the Orange River introduced the possibility of banning labour brokering as an issue in South African labour relations debates. The call, which was first made by the then minister of labour, was adopted as a campaign by the labour movement, particularly the Congress of South African Trade Unions (COSATU). Nevertheless, the official policy of the ruling party has remained that labour brokering and other forms of nonstandard work should be regulated in order to avoid the abuse of workers.24 Despite this, the rhetoric in favour of a ban culminated in the publication of ill-considered and abortive labour law amendments in late 2010 that sought to phase out the operation of labour brokers. However, before analysing these proposals, it is important to examine the various attempts made in Namibia to regulate triangular employment.

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Labour hire emerged in Namibia in the late 1990s. The industry was dominated by one large company that originated in South Africa and now operates across Namibia, employing some six thousand employees. By the mid-2000s there were at least ten labour hire companies in Namibia, and the total number of employees placed is estimated to between ten and sixteen thousand. They supply employees for short periods as well as those who work on a full-time and ongoing basis for the client company. They supply mostly unskilled and semiskilled workers to state-owned enterprises and private companies in a range of sectors including mining, fishing and retail. Their clients include private companies and state-owned enterprises. Research shows that almost all labour hire companies retain a substantial part (15–55 per cent) of workers’ hourly wage rates as their fee and that labour hire workers are paid significantly less than permanent workers and usually do not receive any benefits (Jauch 2007). Namibia’s first postindependence Labour Act of 1992 did not specifically regulate labour hire. However, the labour hire companies appear to have adopted the South African model in terms of which they conclude an “employment” contract with the employees and then place them with their clients. However, this model is based in contract rather than statute, and it can be argued that the client was obliged to meet certain of the employer’s obligations under labour law. In response to the expansion of labour hire, Namibia’s 2004 Labour Act contained a detailed approach for regulating labour hire but, despite Parliament passing this law, it was not brought into effect.25 The 2004 Labour Act included “employment hire services” (EHS)—a term that covers any person who runs a business of procuring or providing individuals to render services or work for a client.26 As in South Africa, the individual whose services are supplied to the client is an employee of the EHS for all purposes under the Labour Act. However, the client of the employment hire service is jointly and severally liable for breaches of the Labour Act, collective agreements, contracts of employment and binding arbitration award. The key difference between this proposal and the South African law as reflected in the 1995 Labour Relations Act is that the joint and several liability of the labour hire firm and employer extends to all matters falling under the Labour Act, including the employee’s protection against unfair dismissal, which provides a basis for employees to challenge the fairness of the decision of a client to terminate their services. Joint and several liability also covers responsibility for compliance with occupational health and safety legislation, which in South Africa is the client’s sole responsibility. Significantly, employees seeking to enforce their rights may institute proceedings against either the employment hire service or the client or both simultaneously. In addition, employees of an EHS remain employees in periods during which they do not work for a client. This issue is not explicitly dealt with in South Africa.27

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A revised labour bill tabled in Namibia’s parliament in 2007 adopted the same approach to labour hire, but Namibia’s lawmakers were not persuaded that the abuses of labour hire could be regulated, and instead they opted to prohibit it in the following terms: “No person may, for reward, employ any person with a view to making that person available to a third party to perform work for the third party” (section 128(1)). The legislation goes on to provide that this prohibition does not apply to the activities of private employment agencies who match offers of, and applications for, employment without becoming a party to the resulting employment relationship. Namibian legislators who passed this legislation argued that permitting labour hire as the bill proposed would allow for a contract labour system similar to that imposed on black Namibians by the South African administration during the apartheid era to be reintroduced. Speakers also compared labour hire practice in Namibia to slavery as it permitted the purchase and sale of employees.28 Namibian labour hire firms challenged the prohibition on labour hire practices, arguing that it infringed their right to carry on a trade as enshrined in Article 21 of the Namibian Constitution. This argument was initially rejected by the High Court, which found that, as labour hire had no basis in Namibian law, the constitutional protection to carry on a trade did not apply.29 Although the High Court decision was subsequently reversed,30 it is worth reflecting on its approach because of its influence on debates in South Africa. The High Court adopted the view that a third party such as a labour hire company could not be party to an employment contract and that the practice involved the “unacceptable interposition” of a third party (the labour hire agency’s client) in the employer/employee relationship. The court also came to the conclusion that labour hire violated the fundamental principle of the International Labour Organisation that labour is not a commodity and that the letting or hiring of persons as if they were “chattels” smacked of slavery.31 The approach of the High Court can be criticised on a number of grounds. First, the conclusion that labour hire is alien to Namibia because the common law does not envisage triangular employment relationships is at odds with the principle that people are able to conclude contractual arrangements that are not expressly prohibited. However, this conclusion was central to the High Court’s decision because it enabled the High Court to adopt the view that labour hire agencies did not have a right to conduct a business as protected under the Namibian Constitution. Secondly, the judgment fails to reconcile its view that labour hire is contrary to the principles of the ILO with the fact that the ILO has itself adopted a convention dealing with private employment agencies in 1997 (which covers the practice of labour hire) and that instruments such as the Employment Relationship Recommendation 198 of 2006 address this issue by suggesting that countries adopt policies to ensure that protection is available to all forms of employment relationships, including those involving multiple parties (Art. 4(c)). In December 2009, Namibia’s highest court reversed the

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decision, finding that a blanket ban on labour hire was a disproportionate and unconstitutional response to the abusive practices associated with labour hire. At the heart of the appeal was the contention by both the Namibian government and the trade union movement that the reemergence of labour hire involved the reintroduction of the labour contracting system that had been imposed on Namibia’s people during South African rule. The court acknowledged the deep suffering that a repressive system of labour contracting had imposed upon the people of Namibia. However, it concluded that labour hire agencies placing employees within the context of a constitutional democracy with progressive labour legislation, while often referred to as a system of “contract labour,” was very different from the historical system of migrant labour involving degrading treatment, institutionalised racial discrimination and criminal prosecution as a sanction for breach by an employee. It also pointed out that, when stripped of the racial categories and repressive features of the apartheid era, the historical system of labour contracting was more akin to the operation of private employment agencies who match offers of, and applications for, employment without becoming a party to the employment relationship. The court concluded that a prohibition on labour hire was a disproportionate response influenced by international standards (in particular, the ILO’s Employment Agencies Convention of 1997 and comparative regulatory practice). It stated: If properly regulated within the ambit of the Constitution and Convention No. 181, agency work would typically be temporary of nature; pose no real threat to standard employment relationships or unionisation and greatly contributes to flexibility in the labour market. It will enhance opportunities for the transition from education to work by workers entering the market for the first time and facilitate the shift from agency work to full-time employment.32 Although the Supreme Court judgment resolved the constitutional challenge to the legislation in favour of employers, it did not resolve the political controversy. The issue remained highly contentious, with the final judgment being severely criticised by individuals linked to the state and the trade union movement (Jauch 2010). In particular, the court was criticised for failing to taking full account of the fact that in light of high levels of unemployment, the operation of agencies deprived employees of job security and income security by creating pools of unemployed workers who would only receive pay when their services were required by a user enterprise. The depth of feeling that the issue of labour hire continued to arouse is shown by the following comments made at a 2010 May Day rally by Namibia’s President Pohamba:

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I worked as a contract labourer when I was employed by Swanu. During that time I was hired out to the Tsumeb Corporation without my consent . . . Labour hire was a system introduced by the colonialists. It is not correct for people to be hired out without their consent. I hated that system then and I still hate it now. (as quoted in Uys 2010) The Namibian Cabinet outlined its response to the Supreme Court decision in a resolution adopted in January 2010. The wording of the resolution indicates that the judgment has not resolved the political controversy over labour hire. The cabinet started its response by stating that the implication of the judgment is that the Constitution would have to be amended to prohibit labour hire and that, as a result, new legislation is the “practical solution to the problem in the short term.”33 The cabinet stated that the legislation that is enacted should ensure that employees placed by agencies receive the same wages and benefits as direct employees and that these employees should conclude written contracts signed by both the agency and the client (user) enterprise. The cabinet resolution emphasised that the preparation of the legislation should be guided by the ILO’s Employment Relationship Recommendation. Legislation to regulate labour hire was only introduced into Namibia’s parliament in October 2011—almost two years after the Supreme Court decision. Press reports indicate that uncertainty over the future legislative direction has resulted in a decrease in the number of employees engaged through labour hire firms and a concomitant increase in the use of employees hired on a temporary basis through fixed-term contracts (Andreas 2011). The approach in the 2004 act (and repeated in the 2007 bill) used the South African legislation as a template for regulation but introduced significant innovations to address shortcomings that had been identified in the South African approach. Significantly, they sought to remedy the key shortcomings in respect of the employees’ security of employment and the limitations in respect of the joint and several liability of the supplier of employees and the client. Despite the sophistication of the regulatory model proposed, rising political antagonism to the spread of labour hire led to the enactment of the prohibition which, while ultimately set aside by the courts, was to have a profound effect on South African debates. 5.

SOUTH AFRICA’S 2010 DRAFT BILLS

In late 2010 the Department of Labour published a bill containing amendments to the LRA. This was the first occasion on which draft legislation dealing with labour brokering was published in South Africa. The bill

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proposed repealing section 198, which regulates labour brokering in its entirety, inserting a new definition of “employer” and amending the definition of “employee.” A draft Employment Services Bill that dealt with the regulation of private employment agencies would prevent these agencies placing their employees to work for others. Simultaneous with the publication of these bills, the Department of Labour released a Regulatory Impact Assessment (RIA), which had been requested by the cabinet in response to an earlier version of the bill (Benjamin et al. 2010). The intention of these proposed amendments was to prevent triangular employment relationships. The proposed new definition of an employer would have provided that only a person who directly supervises the work of an employee may be that person’s employer. The drafters of the bill argued in the accompanying Explanatory Memorandum that this definition would preclude the operation of TESs because the essence of triangular employment is the supply of employees to work under the supervision of another (the client).34 However, the proposed amendments to the definition of an employee coupled with the new definition of an employer would have caused “direction and supervision” by an employer to be a mandatory requirement to be a statutory employee. This definition would have undone a very significant and progressive series of decisions by the labour courts that had interpreted the definition of an employee expansively so that “direction supervision” was not required. This expansive judicial interpretive trend culminated in a 2008 Labour Appeal Court decision which held that there are three “primary criteria” for determining whether a person is an employee: • the employer’s right to supervision and control; • whether the employee forms an integral part of the organisation of the employer; • the extent of the employee’s economic dependence on the employer.35 The courts accepted that it is sufficient for a worker to establish one of these criteria to be classified as a statutory employee. The unintended consequences of the proposed new definitions was that workers would fail to qualify as employees if they satisfied only the second or third of these criteria, thereby excluding from the ambit of labour legislation employees who are not directed or supervised by their employer, such as taxi drivers, truck drivers and commercial travellers. By focusing exclusively on making triangular employment impossible, the drafters had failed to consider the impact of the definitional changes on other employees. In addition, they prepared the legislation on the erroneous assumption that the repeal of section 198, which regulates labour brokering, would prevent triangular employment rather than result in a situation in which the validity of these arrangements would be determined by reference to contractual principles. As the RIA commissioned by the government pointed out, narrowing the definition of employment would constitute an unjustifiable limitation of

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the rights of excluded workers (employees who are not directly supervised by their employers) to receive those protections guaranteed to “workers” in terms of the section 23 of the Bill of Rights. The irony of narrowing the definition of an employee in order to prevent triangular employment is that it forced trade unions that favoured a ban on labour brokering to oppose this approach because it would decimate the membership of unions by unintentionally excluding many employees from the scope of labour legislation (Benjamin et al. 2010). As a result, from both a political and legislative perspective, this endeavour to phase out labour brokers was doomed to failure and was withdrawn in early 2011. The underlying motivation for this approach was to prevent triangular employment without an explicit prohibition on the operation of temporary employment services, which was doubtlessly motivated by a concern that any explicit prohibition on temporary employment services would be challenged as violating section 22 of the Constitution, which provides that every citizen has the right to choose their trade, occupation or profession freely. As we saw in the preceding section, the Namibian courts had accepted the validity of such a challenge even though labour hire was not expressly recognised in Namibian law. In South Africa, where temporary employment services have received express statutory recognition since 1983, the likelihood of the success of such a challenge is extremely high. The formulation adopted in the 2010 bill also reflects the ambiguous politics on the issue of labour brokering within the tripartite alliance formed by the ruling African National Congress (ANC), the trade union COSATU and the South African Communist Party. Although COSATU favours a total prohibition of labour brokers, a position first articulated by the labour minister in 2008, this has never been the official position of the ANC, which has consistently called for the regulation of labour brokers in its key policy documents.36 Nevertheless, the authors of the 2010 bills expressly articulated their goal as being to give effect to government policy as reflected in the ANC 2009 Election Manifesto. The bills published for comment in late 2010 were doomed to failure because they were technically incompetent and politically disingenuousness. Predictably, they provoked a storm of criticism and were withdrawn (Paton 2011). 6. NAMIBIA’S 2012 LEGISLATION In April 2012, the Namibian parliament enacted into law its third set of proposals aimed at regulating or prohibiting labour hire.37 The Namibian Labour Amendment Act of 2012, which came into effect on 1 August 2012, adopts the approach that all persons, other than independent contractors, who are placed to work with a user enterprise by a private employment agency are employees of the user enterprise. As a result, labour hire agencies are not the employers of workers whom they place to work subject to the control of others. In order to avoid any prospect of uncertainty, the

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definition of an “employer” was revised to include any user enterprise at which an employee is placed by a private employment agency. The legislation goes on to provide that employees who are placed by a labour hire agency with a user enterprise have the same rights as other employees of the enterprise, including the rights to join a trade union and engage in collective bargaining. User enterprises may not differentiate in their policies and procedures between clients who are placed by private employment agencies and other employees and must pay the same remuneration to placed employees as other employees performing work that is the same or similar or of equal value. Further restrictions are that user enterprises may not engage workers through private employment agencies during a strike or within six months of having dismissed employees performing the same or similar work or work of equal value. The act also creates a presumption of permanent employment applicable to all employees except managerial employees based on the provisions introduced into South Africa law in 2002. The former provision is aimed at preventing employers from employing workers through a series of “rolled over” fixedterm contracts. The policy documents accompanying the legislation showed a clear shift in the justification articulated for the legislation. At the time of the enactment of the laws, the minister of labour and social welfare who was responsible for introducing the legislation into the legislature said the following: Vestiges of the old (contract labour) system are present today, in the form of both attitudes and practices on the part of some Namibian employers, which are not in line with the Namibian Constitution or the labour laws and which hinder the achievement of Decent Work. Taking advantage of high unemployment, labour hire agencies have emerged as a new means of ensuring a cheap pool of black labour. (Minister of Labour and Social Welfare 2012) Rather than drawing a direct analogy between historical contract labour systems and labour hire, this passage focuses on the perpetuation of exploitation of vulnerable workers. However, the source of the exploitation no longer lies in the coercive nature of repressive laws but rather in the economic pressures flowing from high unemployment. As a leading analyst of Namibian labour market has commented: There is no doubt that labour hire is not the only exploitative practice and that it is difficult to secure decent working conditions in a free market economy underpinned by structural unemployment conditions. (Jauch 2012)

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It is likely that many employers will respond to a prohibition on labour hire by shifting to other techniques of outsourcing or subcontracting. Jauch also points out that the effectiveness of the clause will depend on its implementation, in particular, the capacity of the under-resourced labour inspectorate to enforce compliance with its provisions. The stated aim of the legislation is to regulate rather than to prohibit labour hire. This claim is made in the hope that it will strengthen the hand of government in any future litigation challenging the legislation. The attempt to present the goal as one of regulation emerges most clearly from the definition of “private employment agency,” which is expanded to make it explicit that both categories of agencies contemplated in the convention may operate in Namibia. However, given the fact that an employee will become an employee of the user enterprise as soon as they commence work for it, the employment agencies can do no more than recruit on behalf of the user enterprise. In other words, the regulatory regime introduced in Namibia will have the result that agencies can only perform the first of the two standard functions. The inclusion of this change of definition is either an indication of conceptual confusion or an attempt to prohibit labour hire by stealth. This intention also emerges from an exemption clause that allows the minister of labour to exempt the user enterprise from its obligation as sole employer by making both the agency and the user employers and making them liable for each other’s obligations. In reality this provision does not amount to an exemption clause since it would effectively increase the obligation of both the agency and the user enterprise, and it is difficult to imagine situations in which either of them would seek such an exemption. The only provision indicating an intention to regulate labour hire is a regulation-making power that enables the minister to exclude certain categories of work from the provision or allocate responsibilities between agencies and user enterprises. However, the act gives no indication as to what criteria the minister should take into account in exercising this power. The somewhat schizophrenic quality of drafting reflects the dual pressures upon the legislature: to present the legislation as a rational regulatory scheme that is constitutionally defensible in judicial forums while being able to present it in the political realm as an effective prohibition of labour hire. In retrospect, this balance might have been best achieved by focusing on the regulationmaking power and setting out the criteria that the minister should exercise when utilising that power. African Labour Services, the labour hire company that launched the ultimately successful challenge to the 2007 prohibition on labour hire, has launched a similar challenge to the 2012 legislation on the basis that it interferes with the constitutional right of labour hire firms to practice their trade (Routh 2012).

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7. SOUTH AFRICA’S 2012 DRAFT LEGISLATION Legislation tabled in South Africa’s parliament in mid-2012 adopts a rather different approach. The framework for regulating temporary employment services introduced in 1995 is left intact, although the provisions dealing with joint and several liability are strengthened. Employees can elect to institute proceedings against either the agency or the user enterprise and to enforce any order or award made against either of these parties.38 In addition, labour inspectors enforcing minimum standards legislation may secure or enforce compliance against the TES or client or both. The amendments also seek to promote trade unionism among placed workers by permitting these workers and their trade unions to exercise organisational rights at the client’s workplace and not exclusively at the workplace of the temporary employment agency, as is currently the case.39 An arbitration award granting organisational rights that apply to employees of the agency may be made binding on a user enterprise (on the condition that they have been given the opportunity to participate in arbitration proceedings).40 A new set of protections that will restrict agencies to employing these workers to perform work of a temporary nature are introduced for lowerpaid employees. These employees will only be considered to be employees of the agency during placements lasting less than six months or if the worker is a substitute for an employee during a period of temporary absence. In addition, the minister of labour has the power to classify other categories of work as temporary, during which an employee can remain an employee of the agency. An employee placed by an agency who works for a user enterprise for longer than six months is deemed to be the employee of the user enterprise, and the employee will have full labour law protections, including protection against unfair dismissal and unfair discrimination, against the user enterprise. These employees must be treated for the purposes of employment in the same manner as other employees of the user enterprise, unless the employer can justify the differentiation. In order to prevent agencies defeating this provision by terminating assignments within the six months, the law provides that the termination of an assignment to avoid the employee becoming an employee of the client is a dismissal that can be challenged as an unfair dismissal. The draft legislation also proposes restrictions on the use of short-term contracts. Employers are able to conclude six-month contracts with new employees. However, any additional contracts may only be concluded if the work the employee is performing is not of an indefinite nature or there are other justifications to conclude a fixed-term contract. After the six-month period employees hired under fixed-term contracts must be treated in the same manner as employees who have been hired indefinitely, unless there are rational grounds for differentiation. The underlying approach differs from that adopted in Namibia in two important regards. Firstly, the legislation seeks to strike a balance between what is seen as the legitimate role of agencies in placing employees for

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short-term assignments, including probationary placements, with the severe abuses associated with long-term triangular employment. In particular, it seeks to address the concern that short-term placements and a greater flexibility to conclude fixed-term contracts will encourage the hiring of new employees. Secondly, the key new protections, particularly those that guarantee protection against unfair dismissal and parity of working conditions with direct employees, only apply to lower-paid workers. Although the legislation was subject to an extensive negotiation process in the labour market policy forum NEDLAC, it does not enjoy the support of either the countries’ two main trade union federations or organised business. The trade unions continue to argue for a prohibition on the operation of labour brokers, arguing that the abuses associated with labour brokering are so severe that they cannot be remedied by regulation (Business Live 2012). Organised business, while accepting the need for greater regulation to prevent abuse, argues that the proposed approach is overly restrictive and will have negative consequences for job creation. They suggest that agencies should be able to remain the employers of employees they place for up to three years (Business Unity South Africa 2012). While there is no consensus between the stakeholders on the new approach, the legislation does carry the hallmarks of a consultative process aimed at obtaining consensus. In particular, the approach of providing greater protection for lower-paid workers has been utilised to seek employer agreement to new regulation. The government argues that such an approach is appropriate because the purpose of the legislation is aimed at protecting vulnerable lower-paid workers and that more skilled workers earning higher remuneration are better able to negotiate additional protections in their contracts. 8. CONCLUSION It is worth interrogating why the prohibition of labour brokering has become such a high-profile and emotive political issue in both Namibia and South Africa. Repressive and unfree contract labour was the dominant feature of labour markets in both countries prior to the establishment of democracy in 1990 and 1994, respectively. The establishment of democracy was preceded by a period in which the strictures of the contract labour system were relaxed and trade unions emerged to represent employees in collective bargaining. Shortly after the advent of democracy, both countries enacted progressive labour codes. However, overlapping with these developments has been an increasing informalisation as more and more employees have been engaged to perform nonstandard work. For many workers in these two countries, informalisation, as typified by the rise of labour hire, has meant a loss of the significant benefits established through collective bargaining and their effective exclusion from the protections of labour law. The proposal to “prohibit” the operation of labour brokers can be viewed as a strategy to restore a model of employment that trade unions

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had begun to achieve for their members through collective bargaining from the late 1970s onwards. This is the model of secure employment with a single employer in which the employee receives “social wage” benefits and a relatively high level of protection against unfair dismissal. The move away from this model of employment has left an increasing proportion of the workforce in less secure employment. Stakeholders in both South African and Namibian law have shown a preference for a very different approach to international trends where the requirement of parity in working conditions between placed employees and other employees of the user enterprise is the primary technique for regulating labour hire. A major reason why this approach is not seen as adequate is the concern that, in a situation of high unemployment, labour hire serves provide employers with short-term flexibility at the expense of the income security of employees. In both countries, legislation seeks to minimise the role that labour hire firms can play as employers. Where they differ is that the South African approach does recognise that agencies have a legitimate role in placing employees temporarily. At the same time the call for prohibition is futile. Besides the constitutional difficulties with this approach, it is not feasible to expect legislation to regulate the form of employment relationships and to assert traditional standard employment as the norm. Legislation can, however, ensure that all workers receive a full range of protections that are consistent with the constitutionally entrenched labour rights. This will be an important starting point for halting the renewed “race to the bottom” and associated precariousness and unfreedom that are being driven by the expansion of triangular work and other forms of nonstandard work. BIBLIOGRAPHY Abel, R. (1995) Politics by other means: law in struggle against apartheid 1980– 1995. New York: Routledge. Andreas, R. (2011) Contract work the new labour hire, Namibian [online], 27 January 2011. Available at: http://www.namibian.com [Accessed 12 September 2012]. Benjamin, P. (2000) Union-made law: the regulation of collective bargaining and worker participation in post-apartheid South Africa, in: Collins, H., Davies P. and Rideout R. (eds.) Legal regulation of the employer relationship. London: Kluwer, pp. 515–528. Benjamin, P. (2012) Labour brokers can’t blame “bakkie brigade” for this one, Business Report, 25 July 2012, p. 16. Benjamin, P., Bhorat, H., Van der Westhuizen, C. and Small Business Project (2010) Regulatory impact assessment of selected provisions of the Labour Relations Amendment Bill 2010, Basic Conditions of Employment Amendment Bill 2010, Employment Equity Amendment Bill 2010, Employment Services Bill 2010 [online]. Available at: http://www.labour.gov.za/downloads/legislation/bills/proposed-amendment-bills/ FINAL_RIA_PAPER_13Sept2010.PDF15 [Accessed 10June 2010]. Bezuidenhout, A. (2008) New patterns of exclusion in the South African mining industry, in: Habib, A. and Bentley, K. (eds.) Racial redress and citizenship in South Africa. Cape Town: HSRC Press.

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Bezuidenhout, A., Godfrey, S. and Theron, J. (with Modisha, M.) (2004) Non-standard employment and its policy implications: report submitted to the Department of Labour [online], 30 June 2004. Department of Labour of South Africa. Available at: http://www.swopinstitute.org.za/files/bezuidenhout_et_al_non-stan dard_employment.pdf [Accessed 21 July 2012]. Brassey, M. and Cheadle, H. (1983) Labour Relations Amendment Act 2 of 1983, Industrial Law Journal (Juta), 4, pp. 34–38. Business Live (2012) Business, labour critical of new labour bills [online]. Available at: http://www.businesslive.co.za/southafrica/sa_markets/2012/03/28/businesslabour-critical-of-new-labour-bills [Accessed 28 March 2012]. Business Unity South Africa (BUSA) (2012) A business perspective on the bills amending the Labour Relations Act (66 of 1995) and the Basic Conditions of Employment Act (75 of 1997) [online]. Available at: http://www.busa.org.za/ docs/Media%20Briefing%2027%20March%202012%20FINAL.pdf [Accessed 27 March 2012]. Cooney, S., Biddulph, S., Kungang, L. and Zhu, Y. (2007) China’s new labour contract law: responding to the growing complexity of labour relations in the PRC, University of New South Wales Law Journal, 30 (3), pp. 786–801. Countouris, N. and Horton, R. (2009) The Temporary Agency Work Directive: another broken promise? Industrial Law Journal, 38 (3), pp. 329–338. Davies, P. and Freeland, M. (2004) Changing perspectives upon the employment relationship in British labour law, in: Barnard, C., Deakin, S. and Morris, G. (eds.) The future of labour law: liber amicorum. Oxford: Hart. Jauch, H. (2007) Namibia’s ban on labour hire in perspective, Namibian [online], 3 August 2007. [Online]. Available at: http://www.namibian.com.na/index.php?id=28& tx_ttnews%5Btt_news%5D=31770&no_cache=1 [Accessed 21 October 2012]. Jauch, H. (2010) Namibia’s labour hire debate in perspective. Windhoek, Friedrich Ebert Stiftung (FES). Available at: http://www.fesnam.org/pdf/2010/LabourHireDe abatePerspective2010.pdf [Accessed 21 October 2012]. Jauch, H. (2012) Job creation vs workers’ rights, Namibian [online], 10 August 2012. Available at: http://www.namibian.com.na/columns/full-story/archive/2012/ august/article/job-creation-versus-workers-rights/ [Accessed 21 October 2012]. Minister of Labour and Social Welfare, Namibia (2012) Media briefing [online], 26 July 2012. Available at: http://209.88.21.36/opencms/export/sites/default/grnnet/ MOLSW/DocumentArchive/press_statement/IMPLEMENTATION_OF_LEGISLATION_REGULATING.pdf [Accessed 22 September 2012]. Paton, C. (2011) Just a temporary draft, Financial Mail, 2 June 2011. Routh, R. (2102) Namibia: labour hire case back in court, judgment reserved, New Era [online], 28September 2012. Available at: http://www.allafrica.com/stories/201209281035.html [Accessed 11 October 2012]. Standing, G., Sender, J. and Weeks, J. (1996) Restructuring the labour market: the South African challenge: an ILO country review. Geneva: International Labour Office. Theron, J. (2005) Intermediary or employer: labour brokers and the triangular employment relationship? Industrial Law Journal (Juta), 26, pp. 618–649. Uys, N. (2010) Pohamba condemns labour hire at Luderitz Rally, Namibian [online], 3 May 2010. Available at: http://www.namibian.com.na/index.php?id=28&tx_ ttnews%5Btt_news%5D=67402&no_cache=1 [Accessed 21 October 2012]. Vosko, L. (1997) Legitimizing the triangular employment relationship: emerging international labour standards from a comparative perspective, Comparative Labour Law and Policy Journal, 19 (1), pp.43–78. Webster, E., Benya, A., Dilata, X., Joynt, K., Ngoepe, K. and Tsoeu, M. (2008) Making visible the invisible: confronting South Africa’s decent work deficit [online]. Department of Labour of South Africa. Available at: https://www.labour.gov.za/ downloads/documents/research-documents/webster.pdf [Accessed 10 June 2012].

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Women on Farms Project (2005) Rotten fruits: South African workers pay a high price for profits [online]. Available at: http://www.wfp.org.za/pdf/rotten_fruits_ south_african_farm_workers_pay_a_high_price_fo.pdf [Accessed 10 June 2012]. Yun, A. (2009) Regulating multi-layer sub-contracting to improve labour protection [online]. International Labour Organisation. Available at: http://www.ilo.org/leg acy/english/protection/travail/pdf/rdwpaper17b.pdf . [Accessed 10 June 2012].

NOTES 1. The author acknowledges the financial assistance of the National Research Foundation of South Africa in conducting research for this article. 2. For an overview of the migrant labour system in Namibia see the judgment of the Namibian Supreme Court in African Personnel Services (Pty) Ltd v Government of the Republic of Namibia and Others (2011) 32 ILJ 205 (NmS). 3. The directive allows countries to conclude collective agreements introducing qualifying periods of this kind. See Article 5. 4. Act Concerning the Protection of Fixed-Term and Part-Term Employees Act no. 8074, 21 December 2006. 5. Discriminatory treatment is defined in Article 1(3) as unfavourable treatment in terms of wages and other working conditions given without justifiable reasons. 6. Zhonghua Renmin Gongheguo Laodong Hetong Fa [PRC Labour Contract Law 2007] adopted at the 28th session of the Standing Committee of the Tenth National People’s Congress on 29 June 2007, effective 1 January 2008. 7. Labour Relations Amendment Act 2 of 1983. 8. A “bakkie” is an Afrikaans term for a small truck, and the phrase captures the practice of small-scale agencies who convoy workers to their client’s workplace in the back of a truck and who generally do not have formal business premises. 9. The following scenario became increasingly common. Workers engaged by a labour broker to work for a client would at some stage not receive their wages. When they approached the client (whom they often thought was their employer) for payment, the client would tell them it had no obligation to pay them as they were not its employees and that their wages had been paid over to the labour broker. By then the broker had changed phone numbers and was unable to be contacted, possibly conducting business elsewhere. 10. Labour Relations Act 66 of 1995, s. 198(4). 11. The initial draft bill submitted to National Economic Development and Labour Advisory Council (NEDLAC) for negotiation proposed this, but it was removed during the NEDLAC negotiations. 12. LAD Brokers v Mandla (2001) 22 ILJ 1813(LAC). 13. Buthelezi v Labour for Africa (1991) 12 ILJ 1288 (IC). 14. NUMSA v Genlux Lighting [2009] 3 BLLR 245 (LC); NUMSA obo Ketlhoilwe v Abankedisi Labour Brokers (Labour Court, Case No.: JS1284/01). 15. Vitapront Labour Brokers CC v SACCAWU & Others [2000] 2 BLLR 238 (LC). 16. Nape v INTCS Corporate Solutions (Pty)Ltd (2010) 31 ILJ 2120 (LC); Mahlamu v CCMA & Others [2011]4 BLLR 314 (LC). 17. Labour Relations Act 66 of 1995, ss. 11–12. 18. The 1983 amendments to the 1956 LRA did contain a provision in which the premises on which workers provided by labour brokers worked was deemed to be the labour broker’s premises (section 1(3)(d)).

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19. Employers who have concluded collective agreements phasing out the use of labour brokers after procedural strike action include Goodyear Tyres (September 2006), Tshwane (Pretoria) Municipality (May 2008) and South African Airways (March 2009). 20. Information supplied by National Association of Bargaining Councils. 21. For instance, the number of TESs registered with the services SETA increased from 1,076 in 2000 to 3,140 in 2006 (see Theron 2005). 22. Labour Relations Act 66 of 1995, s. 200A; Basic Conditions of Employment Act 75 of 1997, s. 83A. 23. The report contains the following passage: “We propose the outlawing of labour brokers who merely act as employers of subcontracted labour, except for those labour brokers at the higher end of the labour market who provide a specialised skill such as shaft sinkers. Before amending the law, it is necessary to examine the response of employers to the ban on labour brokers in Namibia. Last year Namibia amended its Labour Act to prohibit all forms of ‘labour hire’ ” (Webster et al. 2008: 96). 24. For instance, the African National Congress (ANC)’s 2009 Election Manifesto states, “In order to avoid exploitation of workers and ensure decent work for all workers as well as to protect the employment relationship, [government will] introduce laws to regulate contract work, subcontracting and out-sourcing, address the problem of labour brokering and prohibit certain abusive practices.” 25. The issue of labour hire was not one of the reasons for the act not coming into effect. 26. The proposed definition of an EHS covers any organisation that supplies employees for reward, irrespective of how the remuneration takes places. This would have had the anomalous consequence of making recruitment firms liable for all employees they recruit even if they have no ongoing relationship with the employee or the client. 27. In addition, severe criminal penalties were proposed in the 2004 act for employment hire services and client companies who breach the law: a fine of up to N$80,000 or imprisonment for up to five years or both. In contrast, the South African law creates no criminal liability. These criminal sanctions are retained in the legislation that came into effect in August 2012. 28. The parliamentary debates are summarised in African Personnel Services (Pty) Ltd v Government of the Republic of Namibia and others (2011) 32 ILJ 205 (NmS) para. 7. 29. The decision of the High Court—African Personnel Services v Government of Namibia and Others (Case No. A4/2008; decided on 1 December 2008)— is available at http://www.saflii.org. 30. African Personnel Services (Pty) Ltd v Government of the Republic of Namibia and Others (2011) 32 ILJ 205 (NmS). 31. Supra note 30. 32. African Personnel Services (Pty) Ltd v Government of the Republic of Namibia and Others (2011) 32 ILJ 205 (NmS) para. 116. 33. The text of the resolution is contained in the Namibia Cabinet Media Release of 26 January 2010. 34. The Labour Relations Amendment Bill 2010 and its Explanatory Memorandum were published for public comment in the 17 December 2010 Government Gazette and can be accessed through the Department of Labour Web site. 35. State Information Technology Agency (Pty) Ltd v Commission for Conciliation Mediation & Arbitration & Others (2008) 29 ILJ 2234 (LAC). See also Pam Golding Properties v Erasmus & Others (2010) 31 ILJ 1460 (LC).

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36. Explanatory Memorandum, Labour Relations Amendment Bill, 2010. 37. Labour Amendment Act, 2012. Available at: http://www.lac.org.na/laws/2012/ 4925.pdf [Accessed 14 May 2013]. 38. Section 198 (4A) of the bill. 39. S1(a) & (c) of the 2012 Draft Bill. 40. S2 2012 Draft Bill.

7

Temporary Work in China Precarity in an Emerging Labour Market1 Feng Xu

This chapter investigates the political, economic and social dynamics that figured in the emergence of temporary staffing agencies in China in the late 1990s and how this particular form of employment relations has contributed to rapid capital accumulation on an extensive basis at the expense of labour’s sense of human security. These agencies experienced tremendous growth, especially in the coastal areas, because they were seen to assist the unemployed in getting jobs and to provide employers with “numerical flexibility” in deploying their workforce (Cao 2007a; 2007b; 2007c; Liu 2007; Chen 2008). This dual role the temporary staffing agencies perform has been especially attractive to local government officials who must solve the problem of unemployment in their jurisdiction at the same time as they help supply national and international companies with abundant cheap and flexible labour. The local government’s enthusiasm for these agencies led to the government setting up its own temporary staffing agencies to dispatch workers laid off in large numbers from state-owned enterprises during the reform initiatives of the 1990s. The chapter, like others in this volume, argues that temporary staffing agencies are active agents in making labour increasingly flexible without meaningful protections; it also argues that context matters in the sense that these processes are highly differentiated. In relation to China, the chapter thus questions the long-term viability of attempting to solve unemployment by simply creating more and more precarious jobs for the unemployed. Changes in the global political economy are drivers of many of the processes of labour transformation associated with flexibilisation, but they are simultaneously local. “Temporary staffing agencies are a form of labour market intermediary, meeting the needs of client companies for contract workers of many kinds. With a core business of labour supply, temporary staffing is a very particular kind of people-based service activity, and one that by its very nature is always delivered locally” (Coe, Johns and Ward 2007: 504). Because of these characteristics, coupled typically with a translocal or even global recruiting strategy, Coe, Johns and Ward argue that the staffing industry must operate within a national legal framework rather than either local or transnational ones. At the same time, many

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temporary staffing agencies in China are transnational operations, serving the outsourcing needs of their transnational clients. This globalisation of the staffing industry must therefore be situated in China’s specific national context, which includes not only the state and agencies as important actors but also transnational capital—with important implications for the labour practices of Chinese firms. Furthermore, Peck and Theodore (2001; 2002) argue that the transnational staffing industry does not merely respond to national labour market conditions, but rather is an active collective agent in reregulating local labour markets. 1.

THE MAKING OF LABOUR MARKETS

Under the prior socialist economy from the early 1950s to mid-1980s, jobs in China’s massive state sectors were all allocated according to plan, rather than by market mechanisms. No work unit could hire or fire staff independently. Instead, the local Bureau of Labour assigned job quotas to each work unit every year. Once people were allocated jobs, they had them (and the associated benefits) until retirement. This was the iron cladding of the so-called “iron rice bowl.” In return, employees declared political loyalty to the Party (Walder 1986). The “iron rice bowl” was therefore only ever enjoyed by the minority of residents who held urban household registration (hukou). Further, these guarantees to the urban population were not the so-called “standard employment relations” (SER) in the West that Vosko and others have discussed. Even granting that the Western SER itself was only ever normative, and never truly universal in application (Vosko 2006), the Mao-era Chinese labour system needs to be understood on its own account. In major Western countries after World War II, the SER represented a de facto compromise between capital and labour. By contrast, the “iron rice bowl” under the socialist planned economy did not operate in a labour market. It was not a social and economic compromise. Rather, it was a privileged status that some urban residents enjoyed in exchange for their political loyalty. However, despite differences in the political context and the legal and regulatory forms taken, the SER and the iron rice bowl shared a similar function: they provided a normative foundation for social reproduction and for a model of industrial production in the post–World War II period. Both were also premised on the exclusion of certain social groups, which in China included peasants (rural dwellers) and segments of the urban population, notably women. The allocation of jobs and other benefits was premised on a hukou system with different designations for rural and urban residents, which entrenched the rural-urban divide. An even larger group, the rural majority, then constituting over 70 per cent of the Chinese population, was excluded from all work units and their benefits. This has had important implications

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that have carried over into the present, especially in the emerging labour market. Notwithstanding the important (if also ambiguous) gains made by Chinese peasants in successive waves of land reform, the urban-rural divide maintained migrant workers as “second class citizens” in their own country (Solinger 1999). These migrants, because of their rural hukou, still occupy social locations similar to international migrants in, for example, Canada, the US or the UK. They are predominantly found in the “bottom end” of the labour market and can be characterised as un/free labour on the continuum of exploitation described by Strauss and Fudge in the introductory chapter of this book. Further, globalisation of production and China’s status as the world’s factory, and migrants’ second-class citizens status, has enabled the Chinese state and capital to shirk responsibilities for the social reproduction of migrant labour power, leaving migrants living precarious lives in cities (Katz 2001; Ren and Pan 2009). The large influx of rural migrants into coastal areas since the early 1980s, made possible by the earlier rural reform that saw the dismantling of communes and the establishment of individual households as independent economic units, and encouraged by migrant-sending and migrant-receiving governments, provided the ready supply of cheap and flexible labour for global capitalism. This move towards a more “flexible” labour force became much more abrupt as China prepared to enter the World Trade Organization in 2001. During the early period of economic reform in the early 1980s, the job allocation system in urban areas came to be seen as too “rigid.” Building a labour market in China entailed, first of all, the functional separation of state agencies from economic enterprises, the separation of “economic” responsibilities from “social” responsibilities and the formal commodification of labour. A key goal of reform was therefore to turn state-owned enterprises (SOEs) into modern profit-making enterprises and, in the same process, commodify labour. Reducing so-called surplus labour in these enterprises on the grounds of economic rationality was deemed essential to improving the efficiency of China’s SOEs (Ministry of Labour and Social Security 2003: 26). The Chinese central government initiated the emergence of a labour market by introducing the labour contract into its lifelong employment system in 1986. Anybody hired after 1986 was officially to be on contract, whereas those hired before 1986 continued to enjoy the “iron rice bowl.” Three types of contracts were defined: the fixed-term contract, the non-fixed-term (or open-ended) contract and the project-based contract. The introduction of these labour contracts officially started the deathwatch for lifelong employment in the state-owned and collectively-owned enterprises, and thus for the end of the “iron rice bowl” (Rosemount 2000). The Ministry of Labour and Social Security’s Blue Book of Chinese Employment states that the Labour Law2 of 1994 essentially treats the fixedterm labour contract as the new norm or standard (You 2007: 503). But

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Article 20 of the Labour Law also states that those who have been with an employer for over ten years can request a non-fixed-term contract, and by agreement between worker and employer, such a contract is to be signed at that point. In 1994, those who fell in this category were workers employed before the introduction of labour contracts in 1986, a population soon to be targeted for massive layoffs. This stipulation therefore protected China’s SOE workers at a sensitive moment. Since then, the Blue Book states that in practice, fixed-term labour contracts have been shortened, meeting most firms’ preferences for flexible labour (You 2007: 503). By the end of 1997, 97.5 per cent of urban workers were on contract (Yang and Zhao 2006: 63). As Chang Kai put it, the introduction of labour contracts turned managers and labourers in SOEs into “employers” and “employees” (Chang and Qiao 2009: 31). While employment with direct employment relations with a single employer, even though on fixed term, is decreasing, employment through labour market intermediaries (either institutional or noninstitutional) has been on the rise. The latter form of employment has become “standard” employment in China. “Standard” employment in the Chinese context today thus refers clearly to what would be described in the West as a form of “precarious” employment: that is, as “forms of work characterized by limited social benefits and statutory entitlements, job insecurity, low wages, and high risks of ill-health” (Vosko 2006: 11). In China, the SER, understood as an indefinite-term employment contract with social benefits, had a very brief and insecure life. Essentially, it emerged with the 1994 Labour Law and was quickly overcome by new forms of more flexible contracts. Flexible employment conditions in China do differ from those that prevail in many other developing countries. First, flexible employment is encouraged by the Chinese government as a specific response to the problem of reemploying the masses of laid-off state-sector workers. Second, and for related reasons, flexible employment in China is much more organised and less “informal,” with more government intervention than equivalent employment in many other developing countries (Peng and Yao 2004). The Western categories of standard and nonstandard employment are in this sense unlike the category of truly informal employment that is abundant in most of the developing world. None of these categories help us understand the categories of work that have emerged from the profound changes specific to the Chinese labour market. China’s economic reform has been unusual because of the direct leadership role of foreign direct investment (FDI), mostly from Hong Kong and Taiwan (Naughton 2007). Foreign capital was attracted to China starting in the early 1980s, primarily because of its relatively cheap labour, preferential taxation and lax labour standards. Special economic zones, the most famous pioneer of which was Shenzhen in the Pearl River Delta, were created so that the emerging experiment with markets and capitalism could be conducted in controlled areas (Lin 1997). After Deng Xiaoping’s famous 1992

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tour of southern China, China’s economic reform picked up speed: transition to a market economy, albeit a “socialist market economy,” appeared as the official economic development policy. Local governments were granted tremendous power in economic decision making (Naughton 2007: 406–410). They competed with each other to attract FDI by offering better investment deals. These deals included tax holidays, built infrastructures and guaranteed supplies of “cheap and docile” labour. In this competitive context in the very earliest days of a modern Chinese labour market, it is not surprising that local bureaux of labour and social security, local trade unions and local bureaux of personnel set up labour introduction agencies of their own to help supply foreign investors with much-needed labour. In these special economic and/or development zones, foreign firms also brought with them capitalist labour practices that, in turn, created competitive pressure for domestic firms involved in joint ventures or supply agreements to follow the capitalist labour practice of foreign firms. Consequently, domestic firms have also opted for flexible labour practices, following the practices of foreign firms (Gallagher 2007). China’s position in contemporary global commodity chains has begun as a supplier of low- and medium-end manufactured goods produced by cheap and flexible labour. The ready supply of internal migrant labour has meant that companies and local governments can continue to rely on a supply of cheap and flexible labour for this purpose. Additional labour supplies have become available because of widespread redundancies in China’s state-owned and collectively owned enterprises. This government-initiated move dismantled many workers’ lifelong employment and the associated social welfare provided through work units in the state sector. In its place, a labour market has emerged that is overwhelmingly characterised by flexible labour practices, a process facilitated in law and policy by the Labour Law of 1994 and the government’s active employment policy since 2002. 2.

THE EMERGENCE OF THE TEMPORARY STAFFING INDUSTRY IN CHINA

The temporary staffing industry (TSI) has established its members as trusted mediators in the existing Chinese context of predominantly state- and network-mediated employment in a way that has been central to the staffing industry’s growth. The TSI contributes to turning Chinese job seekers into a contingent labour supply (especially migrants and those laid off during the economic restructuring of the state sector): its operations mesh with capital’s insatiable but fickle need for numerical flexibility in the labour force. As Theodore and Peck point out (chapter 2, this volume), the TSI has transformed pathways to work at the bottom end of the US labour market; the same is true in China, although with greater direct state involvement. The

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industry has also evolved in the context of significant endogenous heterogeneity arising from the interaction of the state, local and transnational capital and agencies themselves. Human resources outsourcing and labour dispatch companies were set up as pure profit-making commercial ventures in the late 1990s. The timing was no coincidence. The ILO passed Convention 181 on Private Employment Agencies in 1997, legitimising this form of employment relation, even though China has not ratified the convention as a whole. The Ministry of Labour and Social Security sent a delegation to the ILO at that time to find out more about private employment agencies (International Labour Organisation 2007a). Further, the ILO issued a guide on private employment agencies for its members (2007b). Foreign services companies, the precursors of labour dispatch firms, were set up to service representative offices of foreign companies in China, mostly in Beijing, Shanghai and other coastal cities, and primarily in the early days of reform from the late 1970s to mid-1980s. Companies of this kind have since expanded into human resource work, and their clients are no longer limited to the Chinese offices of foreign companies. By contrast, labour introduction institutes were originally set up under local bureaux of labour and social security in the 1980s, initially to be intermediaries finding employment for the “sent-down youths” of the Cultural Revolution. Many in this demographic, now in middle age, were returning to the cities from lengthy political relocation in the countryside. In the early 2000s, SOEs also set up labour dispatch companies of their own to dispatch workers laid off from their own operations amidst the large-scale restructuring/privatisations of that period (Renminwang 2002). Labour dispatch represented a second step in handling this surplus workforce, after the shrinking SOEs closed similarly purposed reemployment centres. Their emergence meant that institutional support for workers had been shifted from state agencies to market institutions. These workers were destined mostly for the company’s former subsidiaries or franchises, its subcontractors and share-holding companies. Labour exchange centres were also set up as intermediaries, but between migrant labour and labour-intensive manufacturers, and with local government sponsorship. Migrant-sending governments (Henan, Sichuan, for example) and migrant-receiving governments (Beijing, Shanghai, Shenzhen, for example) both set up labour exchange centres to coordinate the supply and demand of migrants. The goal was to achieve “orderly migration,” or migration only for those who had jobs in hand (You 2007: 512–515). Labour dispatch companies run within the Labour Bureau are also seen to be finding jobs for laid-off urban workers, as well as helping in the orderly transfer of rural labour to the cities. Some privately owned labour brokers also operate as intermediaries, catering to the needs of migrants looking for work in the cities. This type of labour broker has been the target of periodic government crackdowns:

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some have acted illegally and have been said to be in the business only to “exploit” migrant workers. This typically means charging high fees to migrants for jobs that were promised but often failed to materialize. Some labour brokerage (intermediary) operations have become labour dispatch companies: among these are both labour introduction agencies and labour exchange centres. The pointed claim of some labour dispatch companies that they only charge fees to employers might be a way by which firms seek to distinguish themselves from illegal and (in the view of workers) illegitimate labour brokers. From 1993, university graduates were no longer allocated jobs. With this development, the Bureau of Personnel also entered the business of high-end labour brokerage, under the name “talent exchange center.” This marked the current division of labour between the Bureau of Personnel and the Bureau of Labour and Social Security in the staffing industry: the former is in charge of “talent” (university graduates) and the latter “labour” (Dayangwang 2004). However, with both bureaux directly or indirectly in the labour dispatch business, they often find themselves competing with each other to capture market share at the margins between these two population categories. SOE reform is not the only impetus behind the important role now being accorded to labour dispatch firms. The rationalisation of the state sector itself has generated an important separate rationale for the growth in labour dispatch companies. The reduction of government-authorised staff size provided good opportunities for labour dispatch companies to provide notfor-profit, non-production employees who would not be counted against the official limits on the government’s payroll (Cheng 2007). The goal of reforming this sector, as Zhao Libo (2003: 236) points out, is “to delink this sector from state finance, differentiate the sector, decentralize, and make the sector flexible.” It is also the case that some organisations involved in the business of labour dispatch and human resources outsourcing are officially considered nonprofit organisations, in the limited sense that nonprofit organisations need to be approved by government, are not officially firms and hence do not have to pay taxes. But the services they provide are in fact for profit. Further, since labour dispatch business deals with matters involving government policies, only those with strong connections with local government officials are able to start such a business (personal interview May 2012). It was also reported that some who run labour dispatch companies are relatives and friends of local Bureau of Human Resources and Social Security employees (formerly the Labour Bureau) (Jiang 2011). The complexity reflects the fact that cosy relationships between the public and private are often necessary in China to get things done. On the one hand, government agencies have the role of ensuring that laws are followed; on the other hand, local governments see accumulation as their number one concern: these indicators are also linked directly to their political career

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and personal benefits. This active involvement can lead to practical conflicts between the promotion of accumulation and the guarantee of laws such as those concerning workers’ rights. Some local governments are themselves said to be active in either violating laws or trying to bypass them (Lee, C. K. 2007: 10). The close nexus between local government officials and business is one of the main reasons for prevalent abuse in the labour dispatch industry even after the passing of the Labour Contract Law3 in 2007 (hereinafter referred to as the LCL). In the central government’s desire to quiet labour unrest in order to build a harmonious society, the clauses regulating the labour dispatch industry in the 2007 LCL are now under revision. The LCL provides regulations governing the labour dispatch sector for the first time (Arts. 57–67); it recognizes the fundamental trait of modern labour dispatch arrangements: a triangular employment relationship (Art. 58). Article 58 provides that “the labour contract between the labour dispatch service provider and the dispatched workers shall be a labour contract with a fixed term of more than two years, and the remunerations thereof shall be paid by the labour dispatch service provider on a monthly basis. During periods when there is no work for the workers, relevant remunerations shall be paid to such workers by the labour dispatch service provider on a monthly basis at the minimum salary as prescribed by the people’s government of the region where the labour dispatch service provider is situated.” In order to prevent shoddy business by labour dispatch companies, the LCL introduces a system of licensing and registration, requiring firms to “be established as prescribed by the Company Law and have registered capital of no less than 500,000 yuan” (Art. 57). It also stipulates that the labour dispatch company and its customer sign a service contract “regarding the posts for dispatched workers, the number of dispatch workers, the term of dispatch, the amount and payment of remunerations and social security premiums, and the liability for breach of agreement” (Art. 59). The LCL also limits labour dispatch to “temporary, assistant or substitute posts in general” (Art. 66). However, what constitutes “temporary, assistant or substitute posts in general” is vague and thus leaves room for business to exploit workers. It is on this point that the work to revise the LCL has focused. Client companies turn to labour dispatch companies to supply employees who perform essential services, and many posts are of a long-term nature. The LCL created much anxiety in business circles about the prospects of rising labour costs as a result of the LCL’s strict rules on the formation and termination of labour contracts (Lee, M. 2007). Consequently, on the eve of the LCL coming into effect, there were numerous reports of companies trying to sever their employment relations with their employees through “reverse labour dispatch”: employees already hired directly by firms are “asked” to sign labour contracts with a company-designated labour dispatch company, and the workers are then dispatched by the latter to the original employer (Chen 2008; Xue 2008). Some companies even ask labour

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dispatch companies to bid openly for business in order to drive down costs further (Cao 2007a). However, it can be argued that labour dispatch companies grew much faster due to the anticipated implementation of the LCL. According to the White Paper issued by Shanghai Talents Intermediary Association (2007), the industry’s revenues in 2004 were 6 1/2 billion yuan; in 2005, its revenues went up to 10.4 billion yuan, with estimates for at least 13 billion yuan in 2006. Media reports also showed that many companies turned to labour dispatch companies to recruit workers, some even turning their own workers directly into labour dispatch workers and forcing them to sign their labour contract with labour dispatch companies (Cao 2007a; Chen 2008; Xue 2008). It is important to emphasize that the LCL is not meant to ban the industry, but rather legalize and regulate it. The result is meant to be that the industry can have some degree of accountability to the national government, as well as to the dispatched workers through their contracts. The intent of the government is to see the staffing industry develop into a modern service sector. Consistent with this goal, the LCL favours larger labour dispatch companies, primarily through a system of licensing and registration and raising the threshold of entering into business. The contemporary staffing industry envisions a model triangular employment relationship, in which agencies act as employers, workers as employees of the agencies and client firms as receiving services in the form of labour from agencies (Vosko 2000: 95). Organisations that act only as labour brokers are seen to represent the past, whereas labour dispatch and human resource firms are considered part of the modern service sector, in line with the global practice of the staffing industry (Vosko 2000: 137–156). Some of the aforementioned agencies and companies, originally set up to deal with specific task and target specific groups, are now transitioning to become profit-making companies. This is encouraged as a move away from acting as labour brokers to taking up the business of labour dispatch and human resource outsourcing. Modern labour dispatch companies continue to exist under bewilderingly different ownerships in China: state-run and privately run firms coexist with joint ventures with major global firms such as Manpower, Randstad, Kelly and Adecco. The staffing industry is now touted as belonging to a much larger modern service sector in China (a “sunrise industry”). China’s modern service sector still occupies a relatively small percentage of its overall economic growth. But to become truly “modern and industrialised,” many Chinese are now looking to build the modern service sector into the largest segment of the national economy (Zuo and Chen 2007). The staffing industry is therefore under a subtle pressure to conform with a format that represents a widely desired future for China’s overall economic development (Manpower 2007; Shanghai Talents Intermediary Association 2007). Because this transition is not fully achieved, either in the staffing industry or in China as a whole, these pressures are reflected in an often puzzling

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approach to the naming of firms. Because labour dispatch companies and their distinctive triangular employment relationship are still new to China, old names for the organisations in this industry are still used in Chinese, whereas new names (reflecting modernizing aspirations) are commonly used in English. The same organisation can have more than one name for different purposes and different audiences. To emphasize this change in the nature of their business, some companies will intentionally point out that they are not “intermediaries.” The industry itself is trying to improve its image after negative publicity brought on by notorious cases of abuse involving prominent companies, such as KFC and China Petrochemical Corporations (China Labour Bulletin 2006; Cao 2007b; Liu 2007). The industry has responded with regional and cross-regional associations, codes of conduct and ISO 9000 quality management ratings for its members (Shanghai Talents Intermediary Association 2007; Zhang 2008). These efforts on the part of the industry are entirely compatible with the ILO’s guide on private employment agencies (ILO 2007b). Since China entered the WTO in 2001, the Chinese government has allowed foreign labour dispatch companies to form joint ventures with Chinese companies. So, for example, Randstad bought 47 per cent of shares of Shanghai Talent Company Ltd. in 2006. Major multinational companies such as Manpower, Adecco and Kelly Services also have operations in China. Large labour dispatch companies have international and/or regional reach within China. As Coe, Johns and Ward (2007: 1395) argue, the internationalisation of business services is due most importantly to “the significance of client-following behaviour in which business service transnationals are initially drawn abroad by the desires of their leading clients to access their services in different markets.” Large companies in the industry also try to differentiate themselves from smaller ones in terms of the quality of their businesses and of their clients. Such firms offer not only low-end but also high-end services such as executive headhunting, vocational training and human resources outsourcing. They always list major multinational corporations as their clients on their websites. As multinational companies increasingly outsource higher-end businesses to China, large labour dispatch companies that provide highend services ensure that outsourcing of high-end businesses can proceed as smoothly as possible. Commenting on Kelly Services’ expanded operations in China and Singapore with acquisition of P-Serv, Carl Camden, president and chief executive officer of Kelly Services, said, “the acquisition of P-Serv strengthens our global network and enhances our ability to provide wide-ranging talent management solutions to our customers as they expand globally” (Kelly Services 2007). Consequently, in China not only is manufacturing labour made flexible, but skilled workers and professionals are also increasingly made flexible. In the words of Zhang Jingrong, general manager of Shanghai Talent Dispatch Company, Ltd., the establishment of

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cross-regional association of human resources outsourcing and the establishment of codes of conduct are aimed at presenting the image of the industry as providing legitimate and responsible services (Zhang 2008). The industry also promotes the linkage between high-quality labour dispatch companies and high-quality talents dispatched for high-quality customer companies. This kind of linkage then is presented as the main contribution professional and high-standard human resources companies make to China’s move towards a knowledge-based economy (Shanghai Talents Intermediary Association 2007). 3.

PRECARITY AND UNFREEDOM

The staffing industry’s attractiveness to client firms in recent years has mostly been in the domains of cost reduction (including wage and social benefits), numeric flexibility and risk aversion in relation to employing labour. In one labour dispatch company’s publicity handout, labour dispatch is hailed as a new method of employing labour: the overwhelming emphasis in this handout is that employers use labour but do not provide for them. The new method of employing labour, as the publicity handout to its client firms claims, helps reduce operating costs, helps reduce the number of employees on the main payroll while expanding the number of de facto employees, helps reduce labour disputes and helps customers develop and rationally use their human resources.4 Both in China and elsewhere, customers turn to labour dispatch companies as an act of “distancing.” The staffing industry in China has been actively selling the attractions of such distancing to its corporate customers. Specifically, corporate customers of labour dispatch companies can satisfy their needs for numeric flexibility, reduce key costs (including payroll taxes), move their contributions to workers’ social security benefits from their wage bill to a tax-deductible cost, pay labour dispatch workers lower wages, provide labour dispatch workers with fewer benefits than contract workers doing the same job and reduce the transaction costs and risks involved in employing workers (such as hiring and firing). Further, because labour dispatch workers are forced to work harder to keep their jobs, their presence on the job puts pressure on core contract workers of the dispatch company clients to work harder as well (see also Theodore and Peck, chapter 2, this volume, on intensification). The main clients of labour dispatch companies in recent years have been foreign-invested enterprises (FIEs); state-monopoly industries such as power, tobacco, telecommunication and banks; and government and “nonproduction, non-profit” government agencies (You 2007: 502–522). FIEs use labour dispatch companies because they want to present themselves as compliant with China’s Labour Law, which requires employers to sign a labour contract with all their regular workers. Recruiting through labour

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dispatch companies gets around this obligation without violating the Labour Law. Many small- and medium-sized companies do not use labour dispatch companies: their solution is simply operating without labour contracts at all. Regular workers in the remaining state monopolies are still paid well with good benefits. In order to reduce labour costs in this more regulated environment, these companies also turn to labour dispatch companies. Labour dispatch now supplies their client companies not only with non-core workers, but with core workers as well, which is a clear violation of the LCL. According to a special report in Nanfang Daily, one-third to two-thirds of employees of some large state-owned enterprises are now labour dispatch workers (Cao 2007a; 2007b). The latest study conducted by the Federation of All-China Trade Unions reported that in some large state-owned enterprises owned by the central government, about two-thirds of the workforce work under labour dispatch. By the end of 2010, the total national labour dispatch employees numbered around 60 million, about 20 per cent of the total nonagricultural national workforce. That number had increased from 20 million before the LCL came into effect in 2007, and from 27 million one year after the law came into effect (Ma 2011). Although it is difficult to verify these numbers, it is safe to say that labour dispatch workers have multiplied, especially after the LCL. There is much evidence of abuse in the triangular employment relationship established by labour dispatch conditions. The one obvious consequence is that Chinese job seekers are increasingly pushed into precarious work. The abuse most often reported is the sharp wage and social-benefit gap between formal workers and dispatch workers (Zhou et al. 2011). With the coming into effect of the Social Insurance Law5 of 2010, both employers and employees are legally obligated to contribute their share of social insurance for the employees (this figure includes pension, unemployment insurance, basic medical care, workers’ compensation and birth insurance) regardless of the employees’ hukou status (Arts. 2 and 4). This meant that for the first time in the reform era, migrants have legal rights to social insurance in the same way as local workers with urban hukou status. However, the law does not legislate a national social insurance scheme. Rather, it allows different levels of social benefits in different jurisdictions to exist, differences that are justified by citing the sharply uneven economic development. The lack of a national social insurance scheme leaves loopholes for employers to exploit. Labour dispatch companies help their customers recruit labour in low-cost regions and dispatch them to work in high-cost regions. When labour disputes arise, both the labour dispatch company and its corporate customer deny accountability because each claims it does not have employment relations with the employees. Some workers are dispatched by ad hoc affiliations with existing labour dispatch companies, thus making their employment even more precarious. What has emerged, then, is a formally segmented labour market within an enterprise: the minority

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workforce who have a labour contract with a single employer (formal workers) and the majority workforce who are labour dispatch workers. In many medium- and small-sized industries, only managers and administrators are formal employees of the companies, whereas front-line workers are all labour dispatch employees. In some instances, workers do not even have a contract with labour dispatch companies, leaving them with little or no legal recourse. It is important to note, however, that formal employees and managers and administrators enjoy higher wages and social benefits on the back of the majority, labour dispatch employees. To use the concept of a continuum of exploitation and the diagram of the labour market continuum sketched by Strauss and Fudge (chapter 1, this volume; Strauss 2012), formal employees enjoy freedom precisely because the majority of workers lack it. Further, the cost-cutting practice of hiring labour dispatch employees fetches huge profits for companies and their shareholders. Construction workers deserve special attention in the linkage between precarity and un/freedom in the Chinese labour market. The construction sector was the first sector that underwent economic restructuring. In 1984, two State Council regulations kick-started the process of replacing formal workers with informal workers and of instituting the subcontracting system. This separated management from the field operation which directly hires and manages the workers (Pun and Xu 2011: 10). Urban residents are hired as managers, administers and technical staff, whereas migrants are recruited as construction workers (Swider 2011: 144). The construction industry has been one of the main engines of China’s economic growth since the 1980s. In 2007, this sector became the third largest in the world just behind Japan and the US (Swider 2011: 139). According to the latest census, of the approximately 221 million migrant workers, construction workers make up 5.8 per cent, most of whom are male (Department of Services and Management of Migrant Population of National Population and Family Commission of China 2011: 1 and 5). China’s construction sector is characterised by its multiple layers of subcontractors, and there is often only verbal agreement between recruiters and migrants that they will be paid by the end of the project (Swider 2011: 146). Migrants thus enter the labour market through labour supply subcontractors, many steps removed from the property developer, construction company or contractor, leaving workers without “bosses” or a “labour relationship” (Pun and Xu 2011). In 2008, the Hong Kong–based Students and Scholars Against Corporate Misbehavior (SACOM; see Students and Scholars Against Corporate Misbehavior 2009) conducted a study of the New World China enterprise as a case study of a construction firm. They reported the following illegal work practices: (1) zero labour contracts signed; (2) multiple layers of subcontracting, leading to wage arrears—in the worst case, workers were left unpaid for three years; (3) work fines used to squeeze down the workers’ basic wage; (4) long working hours, with monthly working hours reaching

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560 hours; (5) work delays due to poor organisation; (6) zero or little contribution to social insurance schemes, making it difficult for workers to claim compensation for industrial accidents; (7) poor living conditions, with workers typically living in shacks on construction sites; (8) serious patterns of hiding occupational injuries; (9) lack of job training; and (10) no provision of protective gear. If this study is taken as an indicator, the construction boom China has experienced since the 1980s has thus been brought about by the blood and sweat of millions of construction workers. The fact that these workers do not get paid on time forces them to remain on the job with the hope of getting paid someday. Their living arrangement often means that they cannot bring their families with them, forcing them to live a bachelor’s life, and confines them to construction sites, leading to social alienation. Further, their work compels them to move from one work site to another (Swider 2011: 150). Ironically, such an exploitative subcontract system in the construction sector was widely practised before the communist government took power in 1949, but it was banned and the industry, like all other industries, was nationalised (Shanghai Local Gazette Office n.d.). In the post-Mao reform period, the government effort to make the industry more efficient, and thus labour more flexible, was carried out in the name of development. Governments at all levels have been aware of these illegal labour practices brought on by the subcontract system in the industry. In 2005, the Ministry of Housing and Construction circulated an “Opinion on Establishing and Perfecting the Labour-Supply Subcontracting System and Developing Labour Dispatch Business” to all levels of subnational governments. The opinion sets out a goal that the subcontract system be abolished within three years and labour contracts be signed between construction workers and labour dispatch companies. For the government, institutionalising labour recruitment, rather than abolishing it, is the proper measure taken to deal with construction workers’ precarious work and lives. But seven years after the opinion was circulated, the subcontract system continues to exist. A study was conducted in 2011 on construction workers’ work and lives in Beijing, Chongqing, Shanghai and Shenzhen. It found that 75.6 per cent of those surveyed did not have labour contracts. Without a labour contract, it has been extremely difficult for construction workers to “beg for their wage arrears” (Hui 2011). The spectacular economic growth, the incredible wealth accumulated by a small minority of Chinese and, more generally, global capital, and the precarious lives migrants have been living together reflect “the emergence of a global contradiction between the extended power of capital (and its protection by the state) and not only sustainable but also progressive forms of social reproduction for the majority of the world’s population” (Bakker and Gill 2003: 4). With the smashing of the “iron rice bowl” within China, the majority of urban residents can only find informal/flexible employment.

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Although the unemployed have access to unemployment insurance or minimum living allowance, they are constantly subject to government discipline and community surveillance (Xu 2012: 89–102). Migrants often find that their lives do not seem to improve much, even with the official recognition of their essential role in national development strategy and despite various laws and policies aimed at improving their working conditions. Although there have been thousands of localised protests, provoking government policies to improve regular workers’ and migrant workers’ working and living conditions, the overall national goal of economic growth has meant that any policy improvement is piecemeal. The main purpose of the latter is providing a stable social environment for continued capital accumulation on an extensive scale. Internal migrants in China have so far been treated as “disposable” by capital, and the priority placed on economic development has provided capital with strong backing by Chinese government agencies at all levels. Strong means have been taken to guarantee the security and safety of global and domestic capital investments (cheap or free land, guaranteed supplies of flexible and cheap labour, state efforts, including coercion, to minimize labour unrest and so on). Migrants have been constantly subject to workplace discipline, even violence, and a range of illegal labour practices, police harassment and violence. In the aftermath of the 2007 financial crisis, for example, the State Council requested that government at all levels grant companies permission not to pay or reduce their contribution to social insurance benefits in order to secure the fate of some companies (Bianxiezu 2009: 96–101). Meanwhile, no measures were taken to secure migrants’ fate: they were simply told to go back to their home villages. It is hard to avoid the conclusion in such circumstances that migrants have been welcome for their labour power, used for a few years in a calculated way and then “discarded” (Wright 2006). But if anything, recent economic pressures and changes in top leadership have led the central government to give attention to questions of labour protection. As mentioned earlier, the hukou system, acting essentially as an internal passport system in China, divides the Chinese into urban and rural hukou holders. Migrants who hold rural hukou lack social welfare benefits urban hukou holders enjoy, even if the rural hukou holders actually live in the cities. The different treatment of urban and rural residents is a historical legacy from the Mao period. “Government organizations such as education, public health, labour and social security all serve urban residents” (Xu 2009b: 43). Urban government officials I interviewed still do not consider migrants to be their target population, and in formal policy terms, they are right. The name migrants have been given—“peasant migrants”—points to the liminal space internal migrants occupy: they are deemed to be neither rural nor officially urban, in a policy context where official naming is a crucial aspect of policy implementation. When migrants work in cities, they are workers; when they go back home, they are peasants.

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Since the first wave of contemporary rural-to-urban migration in the early 1980s, social reproduction of migrants has been paid for by migrants themselves through the uncompensated work of women (wives and/or grandmothers). Further, women care for the elderly, children and the handicapped in their home villages. Migrants do the dirtiest, most dangerous and least rewarded jobs; they live in crowded factory dorms (usually six to eight per room) or in a rented single room or shacks on construction sites; they endure extremely long overtime and are not often paid for overtime work; and unlike the urban hukou holders, they have to pay “sponsor fees” to send their children to city schools, which most simply cannot afford. Further, the wages migrants earn in the cities are too low to support the long-term reproduction of labour power. Consequently, families are separated over long periods, with one parent (often the husband) working in the cities while the wife stays in the home village to raise children. Increasingly, married women also migrate to the cities to join their husbands, some with their children. Or married women migrate singly without their children when their kids are old enough to be cared for by their grandparents. The separation of production and social reproduction of migrant workers has led to the “emptying out” of rural China, with only married women with young children, older men and women and children remaining. The dispersed migrant households cannot be romanticised as something that provides a sense of security for migrants. It is a result of migrants’ status as second-class citizens in their own country. Tellingly, the head of a local labour export bureau in Henan province, one of the two major migrantsending provinces, told me during my latest field research in May 2012 that migration hurt three generations of peasants: migrants themselves, their children and their parents. Thus, “both male and female migrants live precarious lives: they face high rates of work-related injuries and death; they live in crowded and substandard housing; they do not seek medical treatment when sick because they do not have medical insurance or the means to purchase medical services; and the children of migrants are shunned from urban schools” (Xu 2009b: 39). But this is not the final word on this issue, which continues to evolve. The state’s historic absence in the social reproduction of labour power during the period of economic reform has led to a “migrant shortage” since the mid-2000s. Many observers in China point out that this migrant shortage is more a shortage of “migrants’ rights” and a shortage of skilled labour than it is any absolute shortage of migrant workers (Guowuyuan yanjiushi 2006; Zhang 2007: 115–119; Shi 2010). 4.

CONCLUSION

The Chinese government initiated a series of moves to make its labour more flexible to facilitate its participation in global commodity chains. Global and Chinese domestic capital demanded flexible labour without protection,

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and the Chinese government sought to abolish lifelong employment. Both can be explained as a series of “distancing acts” (Princen 2002). The Chinese government attempted to distance itself from labour by handing labour over to the market, thus distancing itself (like most other countries of the neoliberal period) from accountability for its citizen-workers. Capital extends global commodity chains to increase distance and multiply chain nodes between producers and consumers. Companies have recently tried to avoid direct or even indirect employment relationships with their employees, distancing themselves from accountability under the provisions of the Labour Law. The staffing industry thus plays an active role in making and keeping a “flexible” labour force without the protection of either the old state-owned wage-and-benefit system or of the more recent labour protection legislation the current central government felt compelled to implement. Further, the close ties between capital and local governments at all levels have meant that labour protection laws and policies have been poorly implemented. Within China’s vast workforce, migrants occupy most jobs in manufacturing, construction, mining, domestic work and restaurant and hotel services (Guowuyuan yanjiushi 2006: 2). Their contribution to China’s economic growth is now recognized by the state, but they continue to experience precarity and marginality in the midst of declining, but still-spectacular, growth. That very precarity and marginality has itself become an important source of growth’s decline. In closing, an excerpt from “Migrants’ Song”: “We have been wandering and drifting, from the 1980s to the new century, I witnessed the tremendous changes this city has undergone, of the numerous lights in the hundreds of thousands of apartment buildings, there is none that belongs to me” (quoted in Guo and Sheng 2011: 83). BIBLIOGRAPHY Bakker, I. and Gill, S. (eds.) (2003) Power, production and social reproduction: human in/security in the global political economy. Houndmills, Basingstoke: Palgrave. Bianxiezu (ed.) (2009) Protect growth, protect people’s livelihood and protect stability: a reader [Bao zengzhang, baominshen, baowending xuexi duben]. Beijing: Central Party School Publishing House. Cao, Haidong (2007a) The abnormal prosperity of labour dispatch: a special report [Tebiebaodao: laowupaiqian de feizhengchang fanrong], Nanfang Daily [online], 13 December 2007. Available at: http://www.nanfangdaily.com.cn/zm/20071213/ jj/200712130064.asp [Accessed 16 April 2008]. Cao, Haidong (2007b) The controversy over labour dispatch in China petrochemical corporation: a special report [Tebiebaodao: zhongshihua de laowipaiqian fengbo], Nanfang Daily [online], 13 December 2007. Available at: http://www. nanfangdaily.com.cn/zm/20071213/jj/200712130063.asp [Accessed 16 April 2008]. Cao, Haidong (2007c) The abnormal prosperity of labour dispatch [laowu paiqian de feizhengchang fanrong]. Southern Weekend [online], 12 December 2007. Available at: http://www.infzm.com/content/8067/0 [Accessed 13 May 2013].

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Chang, Kai and Qiao, Jian (eds.) (2009) Report on labour relations in China: characteristics and tendencies of labour relations in contemporary China. Beijing: China Labour and Social Security Press. Chen, Jingjing (2008) 42 Peasant workers sued SinoPec for its “fake labour dispatch” [Sishiermin nonminggong zhuanggao zhongshihua “jialaowupaiqian”]. Legal Daily [online], 3 April 2008. Available at: http://news.sina.com.cn/c/l/2008-04-03/ 080615282935.shtml [Accessed 13 May 2013]. Chen, Junnan (2004). Labour dispatch became popular among university graduates to seek jobs [Daxuesheng youxin paiqian]. Dayangwang net [online]. Available at: http://jiuye.hbrc.com/articleInfo_216137.html [Accessed 13 May 2013]. Cheng, Qijin (2007) The truth behind “standard labour” of the CCTV [China Central Television] [CCTV “guifanyonggong” zhenxiang] Southern Weekend [online], 15 August 2007. Available at: http://www.infzm.com/content/9860 [Accessed 13 May 2013]. China Labour Bulletin (2006) Beijing KFC accused of unfair employment system [online]. Available at: http//iso.china-labour.org.hk/en/node/38856/print [Accessed 16 May 2008]. Coe, N., Johns, J. and Ward, K. (2007) Mapping the globalization of the temporary staffing industry, Professional Geographer, 4 (69), pp. 503–520. Department of Services and Management of Migrant Population of National Population and Family Commission of China (eds.) (2011) Report on China’s migrant population development. Beijing: China’s Population Press. Gallagher, M. E. (2007) Contagious capitalism: globalization and the politics of labour in China. Princeton: Princeton University Press. Guo, Hong and Sheng, Yu (eds.) (2011) From migrating to the city to settling in the city: research on the question of peasants’ integration into the city [Cong jincheng daodingju: nongmingong chengshi rongru wenti yanjiu]. Chengdu: Sichuan People’s Press. Guowuyuan Yanjiushi [State Council Research Office] (2006) Research report on China’s peasant migrants [Zhongguo nongmingong diaoyan baogao]. Beijing: Zhongguo Yanshi Press. Hui, Mingsheng (2011) Subcontract system could not retreat because of the poor policy implementation [baogongyou bu tuishi, gengzai zhengling buchang]. Guangming Daily [online], 15 December 2011. Available at: http://theory.people. com.cn/GB/16612119.html [Accessed 13 May 2013]. International Labour Organization (ILO) (2007a) Chinese delegation visits ILO to learn about private employment agencies [online]. Available at: http://www.docstoc.com/docs/3470376/Chinese-Delegation-Visits-ILO-to-Learn-about-PrivateEmployment-Agencies [Accessed 6 August 2012]. International Labour Organization (ILO) (2007b) Guide to private employment agencies: regulation, monitoring and enforcement [online]. Geneva: International Labour Office. Available at: http://www.ilo.org/wcmsp5/groups/public/--ed_norm/---declaration/documents/instructionalmaterial/wcms_083275.pdf [Accessed 6 August 2012]. Jiang, Yungzhang (2011) Amending the labour contract law after it came into effect three years ago [Laodonghetongfa shishi sannianhou yinglai shouci xiuding], Jingji Guancha Daily [online], 2 March 2011. Available at: http://www.eeo.com. cn/Politics/beijing_news/2011/03/02/194828.shtml [Accessed 1 June 2012]. Katz, C. (2001) Vagabond capitalism and the necessity of social reproduction, Antipode, 4 (33), pp. 710–728. Kelly Services (2007) Kelly Services expands operations in China and Singapore with acquisition of P-Serv [online]. Available at: http://ir.kellyservices.com/releasede tail.cfm?ReleaseID=285606 [Accessed 6 August 2012].

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Lee, C. K. (2007) Against the law: labour protests in China’s rustbelt and sunbelt. Berkeley: University of California Press. Lee, M. (2007) China labor law comes into force; may raise manufacturing costs, Bloomberg [online], 31 December 2007. Available at: http://www.bloomberg. com/apps/news?pid=newsarchive&refer=worldwide&sid=aKzXeLoq8olU [Accessed 6 August 2012]. Lin, G. (1997) Red capitalism in south China: growth and development of the Pearl River Delta. Vancouver: University of British Columbia Press. Liu, Panpan (2007) SinoPec spent 7.35 million yuan on turning their 144 employees into labour dispatch workers [Zhongshihuagongsi hua qibaisanshiwu wanyuan jiang yibaisishisimin yuangong zhuan laowugong], Xinhua [online], 15 December 2007. Available at: http://news.xinhuanet.com/local/2007-12/15/con tent_7253300.htm [Accessed 18 May 2008]. Ma, Hangqing (2011) Labour dispatch took advantage of loopholes [laowupaiqian zhuankongzi] [online]. Available at: http://finance.ifeng.com/news/20110307/ 3580526.shtml [Accessed 6 August 2012]. Manpower (2007) Manpower Inc. to be the pilot global foreign multinational corporation to obtain a temporary staffing license, Manpower Inc. [online], 10 October 2007. Available at: http://www.manpowergroup.com/investors/releasedetail. cfm?releaseid=268124 [Accessed 6 August 2012]. Ministry of Labour and Social Security (MoLSS) (2003) China’s active employment policies: documents from national re-employment work conference (2002) [Zhongguo jiji de jiuye zhengce: quanguo zaijiuye gongzuo huiyi wenjian huibian]. Beijing: China Labour and Social Security Publishing House. Naughton, B. (2007) The Chinese economy: transitions and growth. Cambridge, MA: MIT Press. Peck, J. and Theodore, N. (2001) Contingent Chicago: restructuring the spaces of temporary labour, International Journal of Urban and Regional Research, 3 (25), pp. 471–496. Peck, J. and Theodore, N. (2002) Temped out? Industry rhetoric, labor regulation and economic restructuring in the temporary staffing business, Economic and Industrial Democracy, 2 (23), pp. 143–175. Peng, Xizhe and Yao, Yu (2004) Clarify the concept of informal employment to promote the development of informal employment [Liqing feizhengguijiuye gainian, tuidong feizhengguijiuye fazhan], Shehuixue [Sociology], 10, pp. 80–88. Princen, T. (2002) Distancing: consumption and the severing of feedback, in: Princen, T., Maniates, M. and Conca, K. (eds.) Confronting consumption. Cambridge, MA: MIT Press. Pun, Ngai and Xu, Yi (2011) Legal activism or class action?: the political economy of the “no boss” and “no labour relationship” in China’s construction, China Perspectives, pp. 9–17. Ren, Yan and Pan, Yi (2009) The absence of state role in the labour reproduction of migrant workers, Chinese Sociology and Anthropology, 1 (42), pp. 51–77. Renminwang (2002) Growing number of laid-off workers turn to employment agencies, Xinhua [online], 13 September 2002. Available at: http://news.xinhuanet. com/english/2002-09/13/content_560669.htm [Accessed 16 May 2008]. Rosemount, H., Jr. (2000) China’s new economic reforms: replacing iron rice bowls with plastic cups, in: Weston, T. B. and Jensen, L. M. (eds.) China beyond the headlines. Lanham, MD: Rowman & Littlefield. Students and Scholars Against Corporate Misbehavior (SACOM) (2009) Report summary: migrant workers in the construction industry: “contract labour in 21th century”—the largest national private developer, the new world China land,

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turn blind eye to the Chinese labour law [online]. Available at: http://sacom.hk/ category/campaigns/new-world-development-construction-workers [Accessed 4 June 2012]. Shanghai Local Gazette Office (n.d.) Subcontractors [baogong] [online]. Available at: http://www.shtong.gov.cn/node2/node2245/node67474/node67479/node67513/ node67523/userobject1ai64515.html [Accessed 12 June 2012]. Shanghai Talents Intermediary Association [Shanghai Rencai Zhongjie Xiehui] (ed.) (2007) The white paper. Shanghai: Shanghai Talents Intermediary Association. Shi, Hong (2010) Labour dispatch spread like crazy, thus seriously attacking the basic labour system [Laowupaiqian fengkuan manyan, yanzhong daji woguode yongguozhidu]. Xi’an Evening Newspaper [online], 7 June 2010. Available at: http://news.xinmin.cn/rollnews/2010/06/07/5124126.html [Accessed 13 May 2013]. Solinger, D. (1999) Contesting citizenship in urban China: peasant migrants, the state and the logic of market. Berkeley: University of California Press. Strauss, K. (2012) Coerced, forced and unfree labour: geographies of exploitation in contemporary labour markets, Geography Compass, 3 (6), pp. 137–148. Swider, S. (2011) Permanent temporariness in China’s construction industry, in: Kuruvilla, S., Lee, C. K. and Gallagher, M. E. (eds.) From iron rice bowl to informalization: markets, workers, and the state in a changing China. Ithaca, NY: Cornell University Press. Vosko, L. (2000) Temporary work: the gendered rise of a precarious employment relationship. Toronto: University of Toronto Press. Vosko, L. (ed.) (2006) Precarious employment: understanding labour market insecurity in Canada. Montreal: McGill-Queen’s University Press. Walder, A. (1986) Communist neo-traditionalism: work and authority in Chinese industry. Berkeley: University of California Press. Wright, M. (2006) Disposal women and other myths of global capitalism. London: Routledge. Xu, F. (2009a) The emergence of temporary staffing agencies in China, Comparative Labour Law and Policy Journal, 2 (30), pp. 431–461. Xu, F. (2009b) Governing China’s peasant migrants: building xiaokang socialism and an harmonious society, in: Jeffreys, E. (ed.) China’s governmentalites: governing change, changing government. London: Routledge. Xu, F. (2012) Looking for work in post-socialist China: governance, active job seekers and the new Chinese labour market. London: Routledge. Xue, Hongli (2008) Some companies set up their own labour dispatch companies to circumvent the labour contract law [Bufeng qiye wei guibi labodongfa zishi paiqiangongsi taobi yonggong zeren]. Xi’an Evening Newspaper [online], 7 June 2010. Available at: http://news.xinmin.cn/rollnews/2010/06/07/5124126.html [Accessed 13 May 2013]. Yang, Yansui and Zhao, Jianguo (2006) Various job & flexible employment mechanism: a new rule, dream of freedom. Beijing: China Labour and Social Security Publishing House. You, Jun (ed.) (2007) Blue book of the Chinese employment: exploring suzhi employment. Beijing: China Labour and Social Security Press. Zhang, Jizheng (2008) Cross-regional association of human resources outsourcing issued declaration of self-regulation [Kuadiqu waibaolianmeng fa ziluexueyan], Xinhua [online], 25 April 2006. Available at: http://www.sh.xinhuanet. com/2006-04/25/content_6839036.htm [Accessed 19 May 2008]. Zhang, Yuejin (2007) Problems facing China’s peasant migrants [zhongguonongmingong wenti jiudu]. Beijing: Guangminribao chubanshe. Zhao, Libo (2003) The reform of non-production and non-profit work unit: exploring the new institutional development of public sector [Shiye danwei gaige: gonggong shiye fazhan xinjizhi tanxi]. Jinan: Shandong People’s Publishing House.

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Zhou, Tingyu, Lu, Wenjun, Tu, Ming, Li, Wenxing, Huang, Haoyuan (2011) The widespread use of labor dispatch, making them feel like second-class citizens [laowupaiqian fanlan, ganjue erdeng gongmin]. Xinhua News Net [online], 30 November 2011. Available at: http://www.qianhuaweb.com/content/2011-11/ 30/content_2432009.htm [Accessed 10 August 2012]. Zuo, Xuejin and Chen, Xiong (eds.) (2007) The report on development of Shanghai’s economy (2006–2007) [Shanghai Jinjifazhan baogao]. Beijing: Social Sciences Academic Press.

NOTES 1. This chapter is an updated and revised version of an article that first appeared in Xu (2009a). 2. Labour Law of the People’s Republic of China, 1994. 3. Labour Contract Law of the People’s Republic of China, 2007. 4. A copy of the publicity literature was given to the author at the time of the interview. 5. Social Insurance Law of the People’s Republic of China, 2010.

8

Unfree Labour and the Regulation of Temporary Agency Work in the UK Kendra Strauss

1.

INTRODUCTION

In February 2004 a group of twenty-three undocumented Chinese migrants drowned on the sands of Morecambe Bay in Northwest England. They had been hired by a labour intermediary, also Chinese, to harvest cockles. In the UK, labour contractors, intermediaries and agencies that provide workers mostly for the agricultural, horticultural and shellfish industries are known as gangmasters; those they employ work in “gangs” and are hired on a short-term seasonal basis to meet the demand for cheap flexible labour in these sectors. The Morecambe Bay tragedy was a turning point in the regulation of this type of intermediated labour, the event that spurred the then Labour government to pass into law the Gangmasters (Licensing) Act,1 which established the Gangmasters Licensing Authority (GLA). Yet gangmasters have been subject to periodic scrutiny and special regulatory oversight by the state since at least the mid-nineteenth century (Strauss 2012b), and when the act was passed, it followed on the heels of the repeal of the licensing conditions of the Employment Agencies Act (1973)2 less than a decade earlier (Scott 2008). In other words, as I argue in this chapter, the Gangmasters Licensing Act represents less a de- or reregulatory model than a socially and politically contingent reregulatory choice. Of prime importance to the passing of the act was the light shed by the workers’ deaths not only on egregious health and safety breaches, but also on a broader range of exploitative practices visited upon gang labourers: intimidation and coercion; confiscation of documents; unfair deductions for housing, transport and equipment; the payment of fees to secure placements; and extremely low rates of pay (Brass 2004; Rogaly 2008a). There had been ongoing concerns throughout the 1990s, raised by trade unions and MPs, about the prevalence of such conditions, their association with this type of intermediated labour (see e.g. MAFF 1999; Trades Union Congress n.d.), and situations of forced labour, “illegal” immigration, trafficking and people smuggling. Campaigns highlighted how the vulnerability of workers was related in important ways by their precarious migrant status and the invisibility of the occupations they filled (Anderson 2010).

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Nevertheless, had Morecambe Bay not happened, it seems unlikely that the Private Members Bill, on which the act was based, would have been passed by a Labour government keen to maintain the UK’s “light touch” regulatory regime (Scott 2008). Gangmasters and gang labour in the UK thus represent a salient case study through which to examine forms of intermediated temporary labour, choices pertaining to their regulation and how and why temporary agency workers become vulnerable to exploitation. The example raises questions about the types of such labour that become the focus of state intervention, how temporary employment agencies are understood and defined and the links between migration regimes, labour law regimes (and their treatment of the temporary employment relationship) and unfreedom in “local” labour markets. In this chapter I examine these questions in turn. My approach is grounded in a heterodox understanding of labour markets that understands them as socially constructed and regulated (Peck 1996). To conclude, I suggest that a social reproduction lens foregrounds the multiple dimensions through which the efficacy of regulatory innovations must be analysed and judged (see e.g. Laslett and Brenner 1989; Mitchell, Marston and Katz 2004; Bakker and Silvey 2008; Strauss 2012b). 2.

INTERMEDIATED EMPLOYMENT AND ITS REGULATION IN THE UK: AN OVERVIEW

Labour intermediaries and labour contractors have existed for as long as there have been labour markets, but their institutional form and function have changed over time. Gangmasters, for example, were historically individuals (often agricultural labourers themselves) who recruited workers from their communities or locales to provide seasonal agricultural labour to local landowners and farmers (Brass 2004; Pollard 2006). Now the organisations registered by the GLA are as likely to be large employment agencies as small local providers; Adecco and Manpower, the two largest global temporary staffing agencies (TSAs) in 2007, are both registered (Coe, Johns and Ward 2007).3 Although labour intermediaries have a long history, temporary employment agencies were banned in most European countries, and many other parts of the world, during the period between the Philadelphia Declaration of 1944 (which heralded the establishment of the International Labour Organisation, or ILO) and the 1970s (Vosko 2008). A founding tenet of the ILO, expressed in the Philadelphia Declaration, is that labour is not a commodity. Yet even during in the ILO’s heyday, the ban on temp agencies allowed for exceptions pertaining to certain groups of workers and certain occupations; these became more widespread in the decades after the 1970s, leading to the reregulation of temporary work in many countries. The expansion, albeit uneven, of the temporary staffing industry and an

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increase in the number of workers employed through temp agencies ensued in many countries. The ILO Private Employment Agencies Convention, C181 (1997) can thus be understood as providing an impetus to the legitimisation and spread of TSAs and also as a belated acknowledgement of their growing role in many national labour regimes. As Coe, Johns and Ward (2007) have highlighted, some temporary staffing firms are very large transnational corporations (TNCs) and have been key political and economic actors shaping the de- and reregulatory trends affecting temporary agency work; in the EU, for example, their activities and lobbying efforts have been concomitant with an increasing, if sometimes uncoordinated, emphasis on the benefits of the flexibility offered by TSAs for individual employers, sectors and industries and the single market as a whole (Vosko 2009; Wynn, chapter 3, this volume). In the US, the temporary staffing industry (TSI) has come to fulfil key functions in the regulation of labour markets and the macropolitical economy (Theodore and Peck, chapter 2, this volume). The expansion of the TSI has, however, heralded increasing concern about, and political agitation against, the nature of temporary agency work in some jurisdictions and among some groups. Temporary agency work is a subset of atypical or nonstandard employment, defined in relation to the standard employment relationship (SER) (Fudge and Owens 2006). The SER, which had both numerical and normative weight in the industrialised economies during the postwar period, was based on a male breadwinner model of continuous full-time employment, on an employer’s premises, with associated occupational welfare benefits (unemployment insurance; access to health care, holiday and sick pay and a pension) and a social wage (Vosko 2000; Fudge and Owens 2006; Arthurs and Stone 2012). Nonstandard employment is therefore comprised of part-time work, fixed-term and contract work (including seasonal work), casual work, temporary agency work and self-employment. Many of these forms of employment are on the rise, albeit unevenly: part-time work as a percentage of all employment in the Organisation for Economic Co-operation and Development (OECD) countries increased from 11.9 per cent to 16.6 per cent between 2000 and 2010 (ranging in 2010 from 4.3 per cent in the Czech Republic to 37.1 per cent in the Netherlands), while the same measure of temporary employment increased during the same period from 11.1 per cent to 12.4 per cent (ranging from 30.8 per cent in Chile to 3.7 per cent in Estonia) (Organisation for Economic Co-operation and Development 2012). Nonstandard work in general, and temporary agency work in particular, is of concern precisely because of its association with insecurity and precarity (Vosko 2008; McDowell and Christopherson 2009; Elcioglu 2010). In other words, if the SER is associated with levels of job security, employment protection and pay and benefits—which are highly uneven between labour regimes, sectors, occupations and categories of worker—(see e.g. Roediger

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1991; Rubery 1998; Fudge and Vosko 2001)—what Vosko (2000; 2009) calls the temporary employment relationship (TER) describes an employment relationship typified by less security and fewer employment protections than the SER. As Chris Forde and colleagues (Forde, Slater and Green 2008) describe, there has been considerable debate about whether this lack of security is the desired and freely chosen trade-off made by highly skilled, highly mobile workers in the new economy for increased flexibility and remuneration or the outcome of neoliberal labour market restructuring and the decline in the power of organised labour resulting in the transfer of risk from employers to workers (Peck and Theodore 2007). Although the evidence is somewhat mixed and depends to an extent on the treatment of nonstandard work within national (and, in the case of the EU, supranational) labour law regimes, there is clear evidence that the majority of temporary agency workers experience precarity, especially related to the duration of contracts and the frequency with which workers change their place of work (see e.g. Storrie 2002 on the EU; Forde and Slater 2005 on the UK; Markova and McKay

Table 8.10

Attributes of Standard and Nonstandard (Atypical) Employment

Attributes of standard employment model (as defined by the SER)

Nonstandard or atypical employment (attributes in common with the SER) Part-time

Fixed-term, contract

Temporary agency

Continuous employment (openended contract)

Yes

No

No

Single employer (bilateral employment relationship)

Yes

Yes

No

Full-time

No

Maybe

Maybe

Work on the employer’s premises, under the employer’s supervision

Yes

Yes

No

Access to occupational welfare benefits

Maybe

No

No

No

No*

No

Social wage

* Fixed-term contract work may be generously remunerated, and may in fact pay better than continuous employment in the same sector or workplace, but it nevertheless does not conform to the social wage model (in which security and continuity are factors).

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2008). This has clear implications for social reproduction. Whereas flexible and temporary forms of employment can in theory facilitate the balancing of wage labour and the unpaid work of social reproduction, in practice they often exacerbate insecurity and make planning for the future difficult, if not impossible. Yet temporary agency work is not inherently precarious. Rather, it is rendered precarious because it is associated with employment protections that are less rigorous, and less strongly enforced, than those applied to the SER (Vosko 2009). In England, for example, temporary agency workers have uncertain status in part due to the multilateral nature of their employment arrangement, which is called a “triangular employment relationship” (see also Vallée 1999; Davidov 2004). As Wynn and Leighton (2009: 19–21) have pointed out: One of the difficulties at the contractual level is the often complex and conflicting set of obligations set out in standard form contracts between agency and end user, agency and temp and sometimes between end user and temp . . . A classical contractual analysis of problems resulting from labour market flexibility, however, often distorts employment issues . . . Notions of freedom and sanctity of contract inevitably clash with more distributive concerns, particularly in the context of job security for highly vulnerable workers. Classical contractual analysis in the context of the triangular employment relationship has resulted in interpretations that cast those providing labour through employment agencies as “workers,” as opposed to employees of the user firm, a somewhat ambiguous status (although treated as equivalent within, for example, the EU Directive on Fixed Term Work—see Vosko 2008: 139 and note 25; and Vosko 2009: 131). Recent efforts at the European level to overcome a decade-old stalemate have finally seen the agreement of an EU directive on the regulation of temporary agency work (2008/104/EC). The latter supersedes and extends the regulation of temporary agencies in the UK by the Employment Agencies Act (1973), which provided for the licensing and inspection of temporary staffing firms. The licensing provisions, however, were dropped in 1995 by the then Conservative government. What had remained in place was a weak and reactive regime of inspections dogged by underfunding and staffing, and voluntary approaches grounded in industry-led codes of conduct (Scott 2008). The Directive on Temporary Agency Work, on the other hand, was designed to create a floor of employment rights grounded in the notion of equal treatment and in affirmation of the employment relationship. As Vosko (2008, 2009) has pointed out, however, the compromise that emerged between national governments, bodies representing industry, workers and agencies and the European Commission (EC) is one in which “in departing

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from its precursors on part-time and fixed-term work, it advances a qualified version of equal treatment for temporary agency workers and extends further legitimacy to temporary work agencies in the process” (2009: 404). Furthermore, in the way it affirms the employment relationship, “the Directive sets out conditions for the free operation of temporary work agencies in Member States and, in so doing, constructs an employment relationship between a worker and an agency though not between the worker and the user firm” (Vosko 2009). As Vosko highlights, this selective and compromised approach to “maximum protection” actually falls short of establishing a basic minimum set of rights applicable to all types of worker, in all types of employment relationship, a point to which I will return. The GLA was thus established in the UK in a parallel development to these ongoing manoeuvres at the national and supranational level to selectively reregulate temporary agencies and temp work. The GLA falls under the rubric of a licensing and inspection model. Its self-reported mission is to “to safeguard the welfare and interests of workers as defined by the Gangmasters (Licensing) Act 2004 (the Act), whilst ensuring labour providers operate within the law” (Gangmasters Licensing Authority 2012: 3). The substantive focus of the act, notwithstanding the reference to safeguarding the welfare and interests of workers, is on the sectors covered and the scope of activities within its purview, establishing the legal framework for the licensing activities to be carried out by the GLA and establishing the offences related to this framework (of operating without a licence if a labour provider, and of contracting with a nonlicensed provider if a labour user) and the enforcement power of officers in the newly created agency. A worker is defined by the act as any individual who does work to which the Gangmasters (Licensing) Act applies, and a person is not prevented from being a worker by reason of the fact that “he has no right to be, or to work, in the United Kingdom.”4 In other words, a labour intermediary who is found to be providing the labour or services of undocumented workers in the sectors covered is still considered a gangmaster even if the individuals he or she has contracted with are not normally considered workers due to their immigration status. Agencies covered by the act are no longer covered by the Employment Agencies Act. Scott (2008) provides a cogent analysis of the relative strengths of the regulatory frameworks established by the Gangmasters (Licensing) Act and the Employment Agencies Act, following the repeal of the licensing provisions with the Employment Agencies Act. As he points out, the GLA has a strong focus on, and mandate for, a proactive and intelligence-led inspection regime. It has dedicated enforcement teams with regional coverage, strong working relationships with other agencies including Her Majesty’s Revenue and Customs (HMRC), the UK Border Agency (UKBA), the Serious Organised Crime Agency (SOCA), UK Police Forces and the Employment Agency Standards Inspectorate (EASI) (see also Gangmasters Licensing Authority 2012) and appears to favour a preemptive strategy towards prospective

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offenders based on the strong application of licensing criteria. In practice this means that a significant number of agencies have conditions attached to their operation, at least initially. The GLA itself highlights its commitment to a proactive inspection regime and the importance of the existence of the authority in raising awareness among workers and the broader public about the potential exploitation of agricultural workers (Gangmasters Licensing Authority 2012). Yet at least two areas of concern emerge in relation to the GLA as a perceived model, even where its scope and remit (e.g. the focus on licensing and registration of employers, rather than on workers’ rights) are unquestioned. First, its powers and operational efficacy are vulnerable to intentional weakening either through legislative dilution or by being starved of funding. The current Conservative-Liberal Democrat government in the UK instigated a much-heralded “bonfire of the regulations” aimed at cutting “red tape” for businesses, which initially threatened the GLA’s very existence. Although the GLA has been granted a reprieve, it has become part of the Department for Environment, Food and Rural Affairs (DEFRA) and suffered funding cuts that have limited its ability to carry out inspections. Especially significant has been the loss of funding from local government, which has both curtailed inspection activity and threatened to weaken important inter-agency ties (Gangmasters Licensing Authority 2012). These developments beg the question of whether the Gangmasters Licensing Act might at some point go the way of the Employment Agencies Act. As the second area of concern, the focus on regulating only particular sectors means that the most exploitative employers are free to operate with virtual impunity in other sectors unrelated to agriculture and fisheries. The sectoral and occupational nature of temporary agency employment varies hugely within the EU (Markova and McKay 2008), but in the UK there is concern about industries such as construction, care, hospitality and cleaning and domestic services. Many of the same exploitative conditions are observed in these sectors, especially in relation to the increasing prevalence of migrant workers. The prevalence of these conditions suggests that the problem is not one of a few “rogue” gangmasters, but rather of the socioeconomic, legal and institutional construction of temporary agency work as precarious. 3.

THE NATURE OF TEMP WORK AND THE MAKING OF PRECARIOUS WORKERS

Concerns about, on the one hand, the extreme exploitation of individuals under the power of labour contractors (like the cockle pickers at Morecambe Bay and, more recently, examples of “modern slavery” in the UK— see Strauss 2012a) and, on the other, the more systemic and structural vulnerability of temporary agency workers in low-wage sectors overlap but

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are often treated as epistemologically distinct, as the differential regulation of gangmasters and labour intermediaries in other sectors shows. A parallel set of issues concerns the making of precarious temporary workers. Is temp agency work precarious because vulnerable segments of the labour market cluster in these types of jobs, or are temp agency workers (whatever their social location) made precarious because of the nature of the work? This may sound like a tautology, but it is not: these questions draw attention to the interrelated norms, processes and institutions that simultaneously construct temp agency jobs as precarious work and those who fill them as precarious workers (see Strauss and Fudge, chapter 1, this volume, on social location and precarity). There are a number of pieces of research that have sought to analyse the empirical evidence on agency work in the UK even though, as Storrie (2002) and Markova and McKay (2008) point out, the statistics are notoriously problematic. This can be confirmed from a relatively simple assessment of the data from the UK Quarterly Labour Force Survey: in the quarter October–December 2011, 53.3 per cent of those surveyed (aged sixteen years and older and not in a training scheme or aged sixty-five years or older) had engaged in paid work either as an employee or as a self-employed person, of which 86.1 per cent identified as an employee and 13.5 per cent as selfemployed. Of the workers, 6 per cent identified as nonpermanent in some way, and of that group 19.1 per cent of workers identified as working for an employment agency. But a further 1.2 per cent of permanent workers identified as working for an employment agency, and 9.9 per cent of those who identified as self-employed reported being paid a salary or wage by an employment agency. In other words, there is overlap between categories of worker, which means that those defined by the headline categories of “permanent” or “self-employed” might miss being counted as agency workers, even if they work for an agency or are paid by an agency. Notwithstanding questions of robustness and categorisation, there are common characteristics of agency workers that have been identified across a range of studies focusing on the UK. Forde and Slater (2005: 256–257) found, in 2000, that just over half of agency workers were male and were less likely to be married or have a child than other workers (although women are more likely to be in temporary work overall). A relatively high proportion of agency workers were between the ages of sixteen and twenty-four, and most were in clerical and secretarial and routine operative jobs. The authors found a clear wage penalty for temporary agency work (an average wage gap of 22 per cent, with a much higher wage gap for male workers than females) both in comparison with standard jobs and fixed-term contract jobs. The analysis did not look at ethnicity and/or migrant status, but Forde, Slater and Green (2008: 4) found that “black and minority ethnic workers and new arrivals in the UK are over-represented in agency work compared to permanent jobs. Five per cent of the agency workforce has arrived in the UK since 2004, and 80 per cent of these agency workers are

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from the EU accession states.” They also found a wage penalty of around 32 per cent, larger than in earlier data. Researchers focusing specifically on the experiences of migrant workers offer a more nuanced picture of their vulnerability in relation to precarious work situations. “Research has found that some of the difficulties faced by migrants relate to UK labour market factors, obfuscated employment relations, particularly the use of agency labour and limited enforcement of labour rights, as well as to their status as migrants” (Anderson and Jayaweera n.d.: 5–6; for a broader set of international case studies see Pratt 1999; Peck and Theodore 2001; Dyer, McDowell and Batnitzky 2008; Anderson 2010; Goldring and Landolt 2011). Anderson and Jayaweera (n.d.), using one-quarter of 2007 Labour Force Survey (LFS) data, found that 11 per cent of recent migrants were in temporary work but stated that this was likely to be a significant underestimate. The West Midlands migrant workers survey, quoted in their study, found that 38 per cent of A8 nationals and 68 per cent of A25 nationals had obtained their current job through a recruitment or employment agency (Anderson and Jayaweera n.d.: 23). In the LFS data, of recent migrants who said they had a job that was not permanent in some way, 6.5 per cent were in seasonal work and 30 per cent were in agency work. Vosko (2000; Cranford, Vosko and Zukewich 2003) and Fudge (1997; Fudge and Vosko 2001), in their earlier work on the precarious employment relationship and the SER, used theories of labour market segmentation to understand how categories of social difference relate to hierarchies and social segregation in labour markets. Peck and Theodore (2001; 2002; Theodore and Peck 2002) too have explored the role of temporary employment agencies in simultaneously exploiting, and constructing, new and evolving forms of segmentation in labour markets that are simultaneously “local” and shaped by a variety of multi-scalar processes and institutions—including of regulation (see also Fudge and Vosko 2001). The empirical findings described here clearly indicate forms of segmentation related, in complex ways, to gender, ethnicity, migrant status and class (the latter dimension is barely touched on in many of the studies on temp agency work and migrant labour). Segmentation theory developed to describe and explain the empirically observed phenomenon of primary and secondary labour markets, the former typified by the SER and the latter by atypical and precarious forms of work, contra orthodox economic theories that treated labour markets as commodity markets (Peck 1996). Temporary agency employment is a driver of segmentation in some firms and industries, where temp workers labour alongside permanent employees for less pay and with few or no opportunities for training, advancement or access to occupational benefits (like employerprovided pensions). The fact that ethnicity, migrant status and gender are associated in different ways with a higher likelihood of being a temp agency worker means that the evolution of segmentation theory to tackle structural labour market inequalities is again relevant here;6 racialisation as a process,

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for example, occurs through (and simultaneously helps define) an evolving set of labour market institutions. Temp agency work, however, is unevenly distributed across sectors of the economy, as well as within firms and across worksites within specific sectors, indicating segmentation beyond internal labour markets. This suggests that intra- and interfirm comparisons need to be examined alongside sector-based analyses. Such analyses are relatively rare, however (e.g. Forde, Slater and Green 2008 look at occupation rather than sector). Analyses of data from the Worker Registration scheme, which operated between 2004 and 2011 for A8 migrants, suggests that temp workers were concentrated in three sectors—administration, business and management (42.8 per cent); hospitality and catering (17.9 per cent); and agriculture (9.6 per cent)—with the administration, business and management category de facto designating temporary agency work, which was also prevalent in other sectors (McCollum et al. 2012; see also Anderson and Jayaweera n.d.). In a sense the sector- and industry-specific model of regulation adopted in the context of the establishment of the GLA represents a recognition of these patterns. But it can also be seen as an attempt to confine the regulation of labour intermediaries to those sectors and industries most visibly associated with the use of undocumented workers (and where there is thus a dual purpose of controlling “illegal” immigration) and in which exploitation and occupational health and safety breaches often affect groups rather than individuals. Thus hospitality, cleaning and catering work, care work and domestic work, which are all occupational categories in which temp agency and migrant workers are prevalent, have escaped the licensing and inspection regime imposed on labour providers in sectors covered by the GLA. These are more individualised occupations to which large numbers of workers are not recruited for short (seasonal) periods, and are not often housed together on the same site, in the same way. Moreover, because of the distinctions created by the Gangmaster (Licensing) Act, certain sectors (agriculture, food processing) have become implicitly associated with problems of coercion and unfreedom, to the exclusion of others (such as social care and construction). Yet new forms of segmentation are also creating divisions on the basis of degrees and/or dimensions of unfreedom. 4.

UNFREEDOM AND THE TEMPORARY EMPLOYMENT RELATIONSHIP

There is ontological and epistemological complexity—and sometimes confusion—in discussions of unfree, forced, coerced and slave labour. The concept of unfree labour is often associated with debates, in the fields of Marxist and orthodox economic history and agrarian studies, about patterns of development within capitalist economies (Hayek 1954; Hobsbawm and Rude 1969; see Brass 2004 and Strauss 2012b for overviews; Brass

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2011). These debates are grounded in the understandings, shared by Marxist and orthodox strands of political economy, in the core (ontological) conditions that differentiate free and unfree labour (Strauss and Fudge, chapter 1, this volume; Strauss 2012a). Unfreedom is mostly discussed vis-à-vis historical and “developing world” contexts, as well as in relation to theoretical debates about how to conceptualise unfreedom where it does occur (see e.g. Brass 2011 on deproletarianisation cf. Phillips 2011 on adverse incorporation). There is thus a tacit recognition of the fact that most of us are compelled to commodify our labour in order to live in the language of the policy literatures (including from Left organisations, the ILO, and NGOs and charities focused on campaigning against worker exploitation—cf. Table 8.11), which instead tend to use the terms “coerced labour” (International Labour Organization 2009), “forced labour” (Anderson and Rogaly 2005; Rogaly 2008b; Allamby et al. 2011) or “slavery” (Martinez 1999; Androff 2011; also used in the mainstream media e.g. Press Association 2011). The ILO has gone the farthest in attempting to define, in a global context, what constitutes forced labour (see Anderson and Rogaly 2005 for an overview of the international legal framework and Rogaly 2008b for a critique)—starting from the premise that economic necessity is not itself a sufficient condition to constitute forced labour. It has identified conditions which, taken together or individually, can indicate a situation of forced labour (International Labour Organization 2009). One of the fuzziest areas in the epistemological definitions of free and unfree labour is the actual conditions of freedom of contract. In reality, the legal and regulatory regimes pertaining to employment allow for at least some constraints on freedom of contract where employment is concerned; these apply to both employers (proscriptions against whom they may contract with, e.g. adults but not children, and when a contract may be terminated, e.g. dismissal protection) and employees (in the case of the latter, e.g. required notice periods). But the nature and degree of those constraints relate to the type and degree of unfreedom experienced by workers. Temporary agency work, for example, often places additional restrictions on freedom of contract: temps often have little say in where they are placed (either the location of the workplace or the type of firms); they may also be barred from accepting a permanent position if it arises with the placement firm, although this is technically forbidden in many countries. Because of the triangular nature of the TER, workers and firms do not enter into a process of contract in the way suggested by the models of orthodox or Marxist theory, and the fact that legal and regulatory protections are themselves normatively and substantively based on that model, which itself underpins the SER, means these protections may ill serve temp workers. This is a significant dimension of the precarity experienced by temp agency staff. The links between intermediation and unfreedom are even more apparent, and the potential for exploitation even more glaring, in the case of

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Typology of Free and Unfree Labour

Work without economic compulsion

“Truly free” labour

Fully decommodified labour

• Workers control • Social welfare system the means and disconnects relations of social production reproduction • Radical and wage labour autonomy (of choice) • Wage labour may be truly, and radical freely chosen openness (to what constitutes • Recognition work) of social reproduction as labour

Work with economic compulsion Unfree labour (ILO conditions)

Free wage labour

• Freedom of contract • Freedom of choice regarding sector and type of work, pay, terms and conditions, and working time

• Threats • • •

•

•

or actual physical harm Restriction of movement or confinement Debt bondage Withholding wages or excessive deductions Retention of identity and/or travel documents Threats of denunciation to the authorities (for real or perceived irregularities e.g. immigration status)

workers with a precarious migrant status. In 2006, fully 11 per cent of all temporary agency workers in the EU 15 were not citizens of the countries in which they were employed as opposed to 5 per cent of permanent employees (Vosko 2009: 399); these migrants will have different statuses, some of which render their lives precarious across multiple dimensions (Butler 2009). Undocumented migrants are an obvious example; prevented from circulating freely in the labour market of the country in which they wish to work, temp agencies in sectors such as agriculture may represent an entry point. Yet vastly unequal power relations, and the vulnerability conveyed by their “illegal” status, markedly increases the risks of coercion and exploitation. The same is true of direct employers, of course, but again the intermediated employment relationship offers opportunities for the obfuscation of the status of workers and allows the labour user to avoid responsibility for employment checks. It is thus not surprising that agriculture in the UK, a

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sector heavily reliant on temporary migrant labour, much of it employed through the Seasonal Agricultural Worker Scheme (SAWS) for A2 migrants, has required additional regulation through the establishment of the GLA. Yet as the UK has opened its borders to migrants from within the EU, they are increasingly closed to workers from outside the EU (including from Asia, India and Africa). The conditions for work visas for non-EU migrants who wish to work occupations such as care, clearing and catering are being progressively tightened. There is no evidence that this will stem the tide of such workers attempting to come to the UK; it is however likely that it will make them more vulnerable to exploitation if they arrive as undocumented migrants. But if the unfreedom of undocumented workers is of concern to national governments and supranational organisations (either for genuine reasons of worker welfare or as de facto immigration policy, especially as it relates to trafficking and people smuggling), a less debated type of unfreedom related to precarious migrant status is that conferred by special categories within immigration regimes. These include guest worker programmes for specific nationalities or types of workers and sector-specific or firm-specific categories of temporary visa. Often such immigration categories have written into them restrictions on changing employer, on general mobility (included relating to where a worker may be housed or choose to live, which cannot be off premises) and on the length of stay permitted (see Fudge and Parrot, chapter 4, this volume). These forms of unfreedom increase the vulnerability of workers to other relations of coercion and exploitation. Skrivankova (2010) critiques the focus of many national policy makers on trafficking and people smuggling; she points out that although both processes can cause terrible suffering and exploitation, the lack of definition of labour unfreedom in legal and regulatory regimes other than as an outcome of the criminal act of trafficking elides coercion where it occurs either without trafficking or people smuggling and diverts attention away from employers who violate migrant and nonmigrant workers’ rights. Nor does it bolster, in a substantive way, the rights of trafficked persons as workers. She proposes a continuum of exploitation with the ILO-defined (1996) normative category of decent work at one pole and forced labour at its other. What is useful about this approach is that it resists both narrow criminal definitions focused on mobility and/or slavery and what Skrivankova (2010: 18) perceptively calls a “hierarchy of suffering”; it instead “provides for a positive definition of what labour exploitation entails as a continuum ranging from the positive extremity (desirable situation) of decent work to the negative extremity of forced labour . . . it comes to help us understand how the denial of rights to certain categories of worker (allowing for their exploitation) fills the space between the desirable . . . and the unacceptable.” Furthermore, a continuum approach provides a framework for understanding the complexity of evolving normative, institutional and socioeconomic dimensions at multiple scales, including the scale of the individual

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or personal work relation. Although space and place are not among the dimensions discussed, the ways in which some work spaces increase worker vulnerability—for example the designation of “the home” as within the private sphere, with implications for the regulation of wage labour performed within it (for perspectives on care and space see for e.g. Pratt 1999; Coppola et al. 2007; Cox 2007)—could easily and fruitfully be encompassed within such a framework. There is, however, a potential problem with the continuum approach if its poles are circumscribed by the concepts of decent work and coerced labour. The ILO’s agenda on decent work replaced its commitment to labour decommodification: the idea that labour is not a commodity underpinned the suspicion of private employment agencies that guaranteed their robust regulation. In abandoning, or at least dramatically diluting, this commitment, the ILO tacitly endorsed the position of maximum protection rather than minimum rights, a position to which the EU also seems to have defaulted. While decommodification (in the social welfare sense) and the ascription of full employment rights to temporary agency work are not direct corollaries, the bargain struck in the negotiation of the Directive on Temporary Agency Work for maximum protection has, as Vosko (2009) pointed out, paved the way for the inclusion of temporary agency work within the remit of the EU Services Directive (Directive 2006/123/EC on services in the internal market) and thus for their increasingly commercial regulation. As I suggest in Table 8.11, the poles of the continuum should be framed in such a way as to highlight, rather than conceal, the role and significance of economic compulsion in wage labour. While such a suggestion might seem politically naive and hopelessly utopian, it nevertheless serves to draw attention to the distance between the norms of truly free work relations, decommodification, free wage labour and different forms of unfree labour. 5. CONCLUSION: THE GANGMASTER LICENSING ACT— REGULATORY MODEL OR REGULATORY CHOICE? All these examples point to a key weakness in regulatory approaches like the one adopted by the GLA. While licensing and enforcement regimes are entirely welcome, and should be supported with full economic and political resources, they cannot not comprehensively address the more systemic and widespread forms of worker exploitation and unfreedom to which temp agency workers in low-wage sectors in general, and migrant workers in particular, are vulnerable. To address these forms of exploitation requires the introduction of a full and equal suite of rights, and this is itself a regulatory choice. Within regulatory compromises distributions of risk are formalised and institutionalised, with concomitant implications for social and economic inequality.7

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What is often lost in debates about the nature of temp agency work, where the preference exists for a permanent job (which survey data tells us is the case for the majority of temp workers in the UK) (Forde and Slater 2005), is who benefits: employers, but also the temp industry itself. Employers shift almost all the risk inherent in the process of contract onto the worker and agency and in doing so achieve numerical flexibility and lower wage costs. Agencies often work on wafer-thin margins in what is frequently a fiercely competitive industry (Peck, Theodore and Ward 2005), yet the wage penalty suffered by temp agency staff suggests that it is workers who pay the price. While a stepping stone for some, many find themselves caught in a cycle of low-wage precarious work that creates durable forms of labour market segmentation characterised by Wills and colleagues (2009) as the “migrant division of labour” (see also McDowell, Batnitzky and Dyer 2009 on the immigrant division of labour). Where forms of social welfare and occupational welfare exist that are de-linked from the SER, this wage penalty may be ameliorated (even if, as in the case of the working tax credits in the UK, these amount to the state subsidisation of low-wage work), but the precarity associated with frequent changes in the type, place and hours of work that temp agency work may engender can make even these difficult to access. What this means is that temporary agency workers suffer multiple forms of insecurity in relation to the social norms and institutions of social reproduction. The wage penalty means that they may be more likely to be in in-work poverty. The precarity associated with temp agency work makes it difficult to afford, and access, appropriate forms of child care and social care (e.g. to help with the needs of parents, disabled children and/or partners with health conditions) to facilitate irregular hours and places of work. Moreover, the evidence on the ways in which wage temp work is transforming pathways into the labour market (see Theodore and Peck, chapter 2, this volume) suggests that these dimensions of precarity are increasingly “sticky” (difficult to transcend through labour market progression). In addition, a social reproduction lens reminds us that for migrant workers, the wage penalty is attenuated by the reality that many of the costs related to bearing, raising and educating children; caring for the sick and elderly; and perpetuating community and cultural relations over time are transacted in, and in some cases borne by, the “sending” nation. This reality is often glossed over in discourses that cast migrant workers as a drain on the host country’s welfare state. And where workers do migrate with family members, the way that those costs are socialised within the family and between communities defrays the costs to employers (as they do for other types of worker). This analysis suggests that what is needed, if we are even to take the first step of addressing inequality, precarity and unfreedom in temp agency work, are mechanisms for rebalancing risk that establish a common set of employment rights applicable to all workers. Moreover, such an approach must recognise that “worker” is not a stable identity, but rather one that

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varies (not just for temp workers) over the life course and in the context of the full range and scope of purposive activities that can and should count as work (Supiot and Meadows 2001)—including the work of social reproduction. If temp agency work subordinates social reproduction through precarity, unfreedom and hefty wage penalties, this is in and of itself a dimension demanding of reform. The purpose of this chapter is not to suggest what those rights might entail, or how (through what socioeconomic and institutional-legal mechanisms) they might be achieved, but rather to apply the logic of this analysis to the GLA as a potential model of regulation. It is from this perspective, however, that the GLA needs to be understood not as a model, but as a regulatory choice made by the state in the context of competing demands and discourses. As such the GLA has achieved gains, through its licensing and inspection regime, in oversight and compliance—in fact the introduction of such a regime means that such employment protections that exist are more likely to be upheld because of such oversight even where it is not so directed (Scott 2008; Wynn 2009). The GLA has also raised the profile, and awareness of, labour exploitation in the sectors it covers. All these achievements, applied to the sectors of the UK economy where employment agencies currently operate more or less freely, would be significant. Yet they are not likely to fundamentally change the nature of temp agency work, especially those dimensions of unfreedom discussed here. It is from this perspective that the GLA must be understood as only a partial solution. BIBLIOGRAPHY Allamby, L., Bell, J., Hamilton, J., Hansson, U., Jarman, N., Potter, M. and Toma, S. (2011) Forced labour in Northern Ireland: exploiting vulnerability. York: Joseph Rowntree Foundation. Anderson, B. (2010) Migration, immigration controls and the fashioning of precarious workers, Work Employment & Society, 24 (2), pp. 300–317. Anderson, B. and Jayaweera, H. (n.d.) Migrant workers and vulnerable employment: a review of existing data. Report for TUC Commission on Vulnerable Employment. Oxford: Centre on Migration, Policy and Society (COMPAS). Anderson, B. and Rogaly, B. (2005) Forced labour and migration to the UK. Oxford: Study prepared by COMPAS in collaboration with the Trades Union Congress. Androff, D. K. (2011) The problem of contemporary slavery: an international human rights challenge for social work, International Social Work, 54 (2), pp. 209–222. Arthurs, H. and Stone, K. (eds.) (2012, in press) Employment regulation after the standard contract of employment: innovations in regulatory design. New York: Russell Sage. Bakker, I. and Silvey, R. (eds.) (2008) Beyond states and markets: the challenges of social reproduction. London: Routledge. Balch, A. (2012) Regulation and enforcement to tackle forced labour in the UK: a systematic response? York: Joseph Rowntree Foundation. Brass, T. (2004) “Medieval working practices?” British agriculture and the return of the gangmaster, Journal of Peasant Studies, 31 (2), pp. 313–340.

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Brass, T. (2011) Labour regime change in the twenty-first century: unfreedom, capitalism and primitive accumulation. Leiden: Brill. Butler, J. (2009) Performativity, precarity and sexual politics, AIBR. Revista de Antropología Iberoamericana, 4 (3), pp. i–xiii. Coe, N. M., Johns, J. and Ward, K. (2007) Mapping the globalization of the temporary staffing industry, Professional Geographer, 59 (4), pp. 503–520. Coppola, M., Curti, L., Fantone, L., Laforest, M.-H. and Poole, S. (2007) Women, migration and precarity, Feminist Review, 87 (1) pp. 94–103. Cox, R. (2007) The au pair body: sex object, sister or student? European Journal of Women’s Studies, 14 (3), pp. 281–296. Cranford, C. J., Vosko, L. F. and Zukewich, N. (2003) The gender of precarious employment in Canada, Relations Industrielles—Industrial Relations, 58 (3), pp. 454–482. Davidov, G. (2004) Joint employer status in triangular employment relationships, British Journal of Industrial Relations, 42 (2), pp. 727–746. Dyer, S., McDowell, L. and Batnitzky, A. (2008) Emotional labour/body work: the caring labours of migrants in the UK’s National Health Service, Geoforum, 39 (6), pp. 2030–2038. Elcioglu, E. F. (2010) Producing precarity: the temporary staffing agency in the labor market, Qualitative Sociology, 33 (2), pp. 117–136. Forde, C. and Slater, G. (2005) Agency working in Britain: character, consequences and regulation, British Journal of Industrial Relations, 43 (2), pp. 249–271. Forde, C., Slater, G. and Green, F. (2008) Agency working in the UK: what do we know? Policy Report no. 2. Leeds: Centre for Employment Relations Innovation & Change. Fudge, J. (1997) Precarious work and families. Toronto: Centre for Research on Work and Society. Fudge, J. and Owens, R. (2006) Precarious work, women and the new economy: the challenge to legal norms, in: Fudge, J. and Owens, R. (eds.) Precarious work, women and the new economy: the challenge to legal norms. Oxford: Onati International Institute for the Sociology of Law. Fudge, J. and Vosko, L. F. (2001) Gender, segmentation and the standard employment relationship in Canadian labour law, legislation and policy, Economic and Industrial Democracy, 22 (2), pp. 271–310. Gangmasters Licensing Authority (GLA) (2012) Gangmasters Licensing Authority annual report and accounts. London: Stationery Office. Goldring, L. and Landolt, P. (2011) Caught in the work-citizenship matrix: the lasting effects of precarious legal status on work for Toronto immigrants, Globalizations, 8 (3), pp. 325–341. Hayek, F. A. (1954) History and politics, in: Haye, F. A. (ed.) Capitalism and the historians. London: Routledge. Hobsbawm, E. J. and Rude, G. (1969) Capital swing. London: Lawrence and Wishart. International Labour Organization (ILO) (2009) The costs of coercion: global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work. Geneva: ILO. Laslett, B. and Brenner, J. (1989) Gender and social reproduction: historical perspectives, Annual Review of Sociology, 15 (1), pp.381–404. MAFF (1999) Economic evaluation of operation Gangmaster, section e. London: UK Ministry of Agriculture. Markova, E. and McKay, S. (2008) Agency and migrant workers: literature review. TUC Commission on Vulnerable Employment (CoVE). London: Working Lives Research Institute, London Metropolitan University. Martinez, S. (1999) From hidden hand to heavy hand: sugar, the state, and migrant labor in Haiti and the Dominican Republic, Latin American Research Review, 34 (1), pp. 57–84.

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McCollum, D., Cook, L., Chiroro, C., Platts, A., Macleod, F. and Findlay, A. (2012) Spatial, sectoral and temporal trends in A8 migration to the UK 2004–2011: Evidence from the Worker Registration Scheme. Centre for Population Change Working Paper no. 17. Centre for Population Change. Southampton. McDowell, L., Batnitzky, A. and Dyer, S. (2009) Precarious work and economic migration: emerging immigrant divisions of labour in greater London’s service sector, International Journal of Urban and Regional Research, 33 (1), pp. 3–25. McDowell, L. and Christopherson, S. (2009) Transforming work: new forms of employment and their regulation, Cambridge Journal of Regions Economy and Society, 2 (3), pp. 335–342. Mitchell, K., Marston, S. A. and Katz, C. (2004) Life’s work: an introduction, review and critique, in: Mitchell, K., Marston, S. A. and Katz, C. (eds.) Life’s work: geographies of social reproduction. Oxford: Wiley-Blackwell. Organisation for Economic Co-operation and Development (OECD) (2012) How do OECD labour markets perform? Temporary and part-time employment. Paris: Organisation for Economic Co-operation and Development. Peck, J. (1996) Work-place: the social regulation of labor markets. New York; London: Guilford Press. Peck, J. and Theodore, N. (2001) Contingent Chicago: restructuring the spaces of temporary labor, International Journal of Urban and Regional Research, 25 (3), pp. 471–496. Peck, J. A. and Theodore, N. (2002) Temped out? Industry rhetoric, labor regulation and economic restructuring in the temporary staffing business, Economic and Industrial Democracy, 23 (2), pp. 143–175. Peck, J. and Theodore, N. (2007) Flexible recession: the temporary staffing industry and mediated work in the United States, Cambridge Journal of Economics, 31 (2), pp. 171–192. Peck, J., Theodore, N. and Ward, K. (2005) Constructing markets for temporary labour: employment liberalization and the internationalization of the staffing industry, Global Networks—A Journal of Transnational Affairs, 5 (1), pp. 3–26. Phillips, N. (2011) Unfree labour and adverse incorporation in global production networks: comparative perspectives on Brazil and India. Chronic Poverty Research Centre Working Paper, no. 176. Pollard, D. (2006) The gangmaster system in the UK: perspectives of a trade unionist, in: Barrientos, S. and Dolan, C. (eds.) Ethical sourcing in the global food system. London: Earthscan. Pratt, G. (1999) From registered nurse to registered nanny: Discursive geographies of Filipina domestic workers in Vancouver, BC, Economic Geography, 75 (3), pp. 215–236. Press Association (2011) Woman forced to work as slave awarded £25,000, Guardian, 16 March 2011. Roediger, D. (1991) The wages of whiteness: race and the making of the American working class. London: Verso. Rogaly, B. (2008a) Intensification of workplace regimes in British horticulture: the role of migrant workers, Population Space and Place, 14 (6), pp. 497–510. Rogaly, B. (2008b) Migrant workers in the ILO’s global alliance against forced labour report: a critical appraisal, Third World Quarterly, 29 (7), pp. 1431–1447. Rubery, J. (1998) Women in the labour market: A gender equality perspective. Paris: OECD. Satzewich, V. (1991) Racism and the incorporation of foreign labour: farm labour migration to Canada since 1945. London: Routledge. Scott, S. (2008) Temporary migrant workers and the UK’s flexible labour market: shifting policy narratives and regulatory rebalancing. ESRC Migration Control and Narratives of Societal Steering Workshop. School 11of Social and Political Science, University of Edinburgh. Edinburgh.

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Skrivankova, K. (2010) Between decent work and forced labour: examining the continuum of exploitation. Joseph Rowntree Foundation Programme Paper: Forced Labour. York: Joseph Rowntree Foundation. Storrie, D. (2002) Temporary agency work in the European Union. Dublin: European Foundation for the Improvement of Living and Working Conditions. Strauss, K. (2012a) Migrant workers, unfree labour, and the role of labour intermediaries in the creation of flexible labour markets, Geography Compass, 6 (3), pp. 137–148. Strauss, K. (2012b) Unfree again: social reproduction, flexible labour markets and the resurgence of gang labour in the UK, Antipode, DOI: 10.1111/ j.1467-8330.2012.00997.x. Supiot, A. and Meadows, P. (eds.) (2001) Beyond employment: changes in work and the future of labour law in Europe. Oxford: Oxford University Press. Theodore, N. and Peck, J. (2002) The temporary staffing industry: growth imperatives and limits to contingency, Economic Geography, 78 (4), pp. 463–493. Trades Union Congress (n.d.) Hard work, hidden lives: the full report of the commission on vulnerable employment. Trades Union Congress (TUC) 12Commission on Vulnerable Employment. Vallée, G. (1999) The growth of non-standard forms of employment and the protection of human rights: what role for labour law? Relations Industrielles—Industrial Relations, 54 (2), pp. 277–312. Vosko, L. F. (2000) Temporary work: the gendered rise of a precarious employment relationship. Toronto: University of Toronto Press. Vosko, L. F. (2008) Temporary work in transnational labor regulation: SER-centrism and the risk of exacerbating gendered precariousness, Social Indicators Research, 88 (1), pp. 131–145. Vosko, L. F. (2009) Less than adequate: regulating temporary agency work in the EU in the face of an internal market in services, Cambridge Journal of Regions Economy and Society, 2 (3), pp. 395–411. Wills, J., Datta, K., Evans, Y., Herbert, J., May, J. and Mcilwaine, C. (2009) Global cities and work: new migrant divisions of labour. London: Pluto Press. Wynn, M. (2009) Regulating rogues? employment agency enforcement and sections 15–18 of the Employment Act 2008, Industrial Law Journal, 38 (1), pp. 64–72. Wynn, M. and Leighton, P. (2009) Agency workers, employment rights and the ebb and flow of freedom of contract, Modern Law Review, 72 (1), pp. 91–115.

NOTES 1. Gangmasters (Licensing) Act 2004, c. 11. 2. Employment Agencies Act 1973, c. 35. 3. The terms to describe temporary agencies individually and as a sector include “temporary employment agencies” (TEAs), “temporary staffing agencies” (TSAs), “temporary work agencies” (TWAs) and the “temporary staffing industry” (TSI) or “temporary help industry.” They are used somewhat interchangeably in the literatures, although those discussing developing markets (see e.g. Benjamin, chapter 6, this volume, and Xu, chapter 7, this volume) also use the term “labour brokers.” 4. Gangmasters (Licensing) Act 2004, c. 11, s. 26 (2). 5. A8 nationals are citizens of the eight Central and Eastern European countries that joined the EU in 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia). A2 nationals are citizens of Bulgaria and Romania, which joined the EU in 2007.

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6. Gender is not related with the likelihood of being a temp agency worker in a linear way. The studies discussed here, especially research by Forde and his coauthors, points to a slightly stronger association between being male and being a temp agency worker (as opposed to being temporary worker, broadly defined). But the 2011 LFS data for October–December suggests that among non-UK nationals, women are slightly more likely to describe themselves as being an employee of a temporary employment agency. What this suggests, although more research is warranted, is that in the UK being a temp agency worker is more strongly associated with youth, ethnicity and migrant status than it is with gender (contra e.g. Vosko 2000 on Canada). See also Markova and McKay (2008), who point to the significance of the sector and industryspecific characteristics of temp agency work in different countries in relation to the gender of the temp workforce. 7. It is worth affirming my agreement with Balch’s (2012) endorsement of the extension of the GLA to other sectors, in his comprehensive review of the legal and regulatory frameworks for addressing forced labour in the UK, as better than the status quo. My arguments in this paper seek to go beyond existing regulatory solutions to advocate for deeper structural and political-normative transformations to address labour exploitation.

9

Leased Labour and the Erosion of Workers’ Protection The Boundaries of the Regulation of Temporary Employment Agencies in Québec Stéphanie Bernstein and Guylaine Vallée

1

The institutionalisation of temporary employment agencies in the labour market (Peck and Theodore 2002) and their continuing effects on the regulation of work (Theodore and Peck, chapter 2, this volume) bring to the fore the tensions between a legislative framework designed to offer protection to workers and make more tolerable their subordinate relationship with employers (Verge and Vallée 1997: 40) and current management practices designed to maximize flexibility and reduce labour costs. These tensions are notably apparent in Québec, where legislative action to fill gaps in existing regulation to take into account the growing influence of temporary employment agencies lags behind other jurisdictions in Canada and elsewhere. This situation could be considered paradoxical because Québec has over the years in fact moved towards greater state intervention in employment relationships, rather than less. However, this intervention has—voluntarily or by omission—failed to grasp legal questions surrounding relationships that fall outside of the bilateral, bipartite employment contract. As a result, temporary employment agencies and user firms have been left to construct employment relationships and working conditions within existing legal parameters. This chapter first focuses on the regulatory landscape of temporary employment agencies in Québec within the confines of existing law2 and shows how regulatory actors—the legislature, the courts, enforcement agencies and the temporary employment agency industry itself3—shape and define the precariousness and unfreedom of temporary agency work. This form of employment relationship is invisible in Québec labour legislation, and, to date, temporary employment agencies are not subject to any form of specific accountability outside an industry-based code of ethics. Whereas in some countries and Canadian jurisdictions the identity of the employer in such triangular employment relationships is defined for the purposes of attributing responsibilities and risks to employers, we will see in the second section of this chapter that the law in Québec is still centred around

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determining the one “real” employer for the purpose of applying legislation, in particular minimum employment standards, the focus of this chapter. In practice, temporary employment agencies claim the status of employer, thereby ensuring that user firms—their clients—can lease workers without incurring the responsibilities attached to being employers. The third section examines the particular repercussions of this form of employment relationship on job security, which, at least formally, is a mainstay of Québec labour legislation. Discussing how adjudicators interpret legislation, the fourth section demonstrates that at the same time job security is imperilled for agency workers, they may be bound to agencies by exclusivity and noncompete clauses that impede their ability to find employment. Thus, not only is their employment relationship precarious, but agency workers may be “unfree” to accept employment of their choice. In the fifth section, we briefly examine how work via temporary employment agencies plays an important role in attempting to keep labour costs down, calling into question historic workers’ demands to be able to earn a decent wage for work performed. In conclusion, we discuss how regulatory actors have paved the way for an increased role for the temporary employment agency industry in creating and regulating a flexible labour market. 1. THE REGULATORY LANDSCAPE OF TEMPORARY EMPLOYMENT AGENCY WORK IN QUÉBEC A considerable body of work from Québec (see Trudeau 1997; Vallée 1999; Bernier, Vallée and Jobin 2003; Lippel, Bernstein and Messing 2004; Gesualdi-Fecteau 2008; Bernier 2011) and other Canadian jurisdictions (see Vosko 2000: 200ff; Arthurs 2006: 233ff; Barnett 2008; Bartkiw 2009) sheds light on the misfit between labour law designed for the model of the “standard,” bilateral employment relationship between an employee and one clearly identifiable employer and tripartite relationships involving temporary employment agencies. Beyond the problem of employers’ identity for the purpose of applying labour law premised on bilateral employment relationships (Trudeau 1997; Gesualdi-Fecteau 2008), other issues also warrant consideration such as the important disparities of treatment between agency workers and other employees (Bernier and Vallée 2004; Galarneau 2005; Paquet 2005), obstacles to unionization and collective bargaining (Vallée 2005; Pineau 2009) and prevention and compensation of work accidents and diseases (Lippel et al. 2011; Lippel and Laflamme 2011). As well, clauses in employment contracts that require the agency workers to work exclusively for the agency, that demand workers not work for either competitors or client firms (known as noncompete clauses) or that require workers to make themselves available to the agency can severely limit agency employees’ right to work and the possibility of enjoying stable employment (Vallée 2010). In this sense, as Strauss (chapter 8, this volume) highlights,

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some agency workers may experience interlinked forms of precarity and unfreedom. The situation in Québec clearly illustrates how legal and extralegal (see Theodore and Peck, chapter 2, this volume) regulation participate in attributing a role to temporary employment agencies in the configuration of power relationships between workers and those who provide work. Over the years in Québec, the legislator has guaranteed a relatively high level of intervention to limit the imbalance of power between workers without union representation and their employers. This intervention, however, does not include the specific regulation of temporary agency employment. The vast majority of temporary agency workers in Québec are nonunionized (Bernier 2011: 22; Galarneau 2005: 14–15), despite the fact that it is the province with the highest unionization rate (at around 40 per cent) in Canada. Due to the structure of collective bargaining in Québec, and North America more generally, access to unionization and collective bargaining is severely limited for these workers. Unionization generally takes place at the firm level: the often imprecise relationship between the temporary employment agency and the workers, coupled with the fact that temporary agency workers do not work together in the same workplace—or often in the same sector—creates huge impediments under collective bargaining law for finding the requisite “community of interest” to certify a bargaining unit, which is the process for obtaining collective bargaining rights in Québec and Canada. It also creates huge barriers for agency workers who are working at different sites to communicate for the purpose of organizing a union at the agency. The inclusion of agency workers in a certification application by a union for a client firm and the coverage of temporary agency workers by a client firm’s existing collective agreements when they are leased to unionized client firms can also vary from one situation to the next (Pineau 2009). In the absence of legislative provisions, these issues are decided on a case-bycase basis according to the principles laid out in the case law according to the “global approach” discussed further on (Pineau 2009; Bernier 2011: 22–23). In addition, contrary to some other Canadian provinces (Bartkiw 2009; Bernier 2011: 33–35) and policy tendencies internationally (International Labour Office 2008: 13–33)4, there is no regulation of temporary employment agencies in Québec (Bernier 2012: 286–287). There is no requirement to obtain a licence or to provide financial guarantees for payment of wages and other benefits, few limitations on noncompete or exclusivity clauses (Béliveau 2008) and only limited and nonexplicit provisions requiring agencies and user firms to share liability for employment related violations (known as joint and several liability) (De Tonnancour and Vallée 2009: 420–424). There is also no regulation to impede temporary employment agencies from charging workers service and training fees.5

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Minimum employment standards legislation is therefore the main source of protection of working conditions and employment for temporary agency workers.6 By North American standards, Québec has a tradition of a relatively high level of state intervention in the employment relationship through the establishment of minimum standards (Bernstein 2006; Désilets and Ledoux 2006). The Labour Standards Act7 provides a quasi-universal (Québec. Ministère du travail 2002: 11) minimum legislative threshold for wages, working time, legal holidays, vacation periods, parental and family leave, job security after two years of continuous service in the same enterprise and protection against reprisals in the case of pregnancy, illness and claiming rights under the act. However, temporary employment agency work is invisible in the Labour Standards Act, and the act’s protection is limited by a series of factors. There is relatively little literature on the implementation and enforcement of labour law and on the adjudication of cases involving minimum employment standards legislation, a discrete and often forgotten area of labour law (Fudge 1991; Bernstein 2006) in relation to temporary employment agency workers. One Québec study (De Tonnancour and Vallée 2009) examined a sample of complaints filed under the act (sixty-eight complaints filed between 2004 and 20068), accompanied by semidirected interviews with labour inspectors and other representatives from the Labour Standards Commission, the government body responsible for enforcing the act. The study revealed that this governmental agency had managed to take a more pragmatic and realistic view of these employment relationships at the inspection and mediation stages to give effect to the law. As the next section shows, in the event of adjudication the courts often cling to an approach to these relationships which ignores their tripartite and complex nature. An analysis of the case law, while it shows how courts interpret the legislation, only explains part of the problems of applying minimum employment standards legislation. First, it is difficult to identify relevant cases using traditional legal research methodology because of the heterogeneous nature of these employment relationships which defies effective indexing for research purposes, and second, because a very small minority of cases reach the adjudication stage (De Tonnancour and Vallée 2009: 402).9 It is also difficult to obtain a clear, representative picture of working conditions and employment situations with temporary employment agencies. These employment relationships are diverse and, in some ways, defy typologies as they mutate and evolve according to user firms’ search for maximal numerical and functional flexibility (Theodore and Peck, chapter 2, this volume). As well, in Québec the law, which is the first reference for legal definitions, does not mention temporary employment agencies or agency workers. There is no distinction made between multinational staffing agencies and fly-by-night or smokescreen agencies used to circumvent legal regulation (De Tonnancour and Vallée 2009: 428). There is also little reliable

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data on agency workers’ “social location” with respect to gender and ethnicity, for example (Cranford and Vosko 2006), on their wage levels and access to benefits or on their sector of activity in Québec. Although there is information on the temporary agency industry’s revenues in Canada10 (see e.g. Canada. Statistics Canada 2010), the lack of data on the number and characteristics of workers hired through temporary employment agencies (Galarneau 2010: 11; Bernier 2012: 296) exacerbates their invisibility in the law and contributes to the difficulties of regulating practices in the industry. 2. THE INDETERMINATE EMPLOYER: DEFINING THE PARTIES TO THE EMPLOYMENT CONTRACT As with labour law more generally, the Québec Labour Standards Act is premised on bipartite employment relationships and therefore has many shortcomings that make its application to tripartite employment relationships difficult. In a landmark Supreme Court of Canada decision involving determining employer obligations in the context of workers employed in a client firm through an agency, Chief Justice Lamer underlined the lack of fit between tripartite employment relationships and employment and labour legislation based on a bipartite employment relationship:11 Unfortunately, tribunals and courts must often make decisions by interpreting statutes in which there are gaps . . . Situations involving tripartite relationships can cause problems when it comes to identifying the “real” employer if the labour legislation is incomplete in this regard. The tripartite relationship does not fit very easily into the classic pattern of bilateral relationships . . . The traditional characteristics of an employer are shared by two separate entities—the personnel agency and its client—that both have a certain relationship with the temporary employee . . . In the final analysis, however, it is up to the legislature to remedy those gaps. An examination of the case law confirms that courts are generally loath to recognise tripartite employment relationships because they do not correspond to the traditional model of labour law based on bipartite relationships. This forced “bilateralisation” of employment relationships in order to apply the law fails to grasp the complex realities of what are tripartite—and often multipartite (De Tonnancour and Vallée 2009)—relationships. Whereas the international (Boston Consulting Group and CIETT 2011: 69 and 109)12 and national13 temporary employment agency industries insist that agencies are employers for the purpose of attributing legal responsibilities, the case law shows that the situation in Canada (Bartkiw 2009) and Québec is far from clear. For the purposes of enforcing the Labour Standards Act before adjudication, a determining factor for the Labour

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Standards Commission is the length of the assignment for a same user firm (De Tonnancour and Vallée 2009: 421). The longer the assignment, the more difficult it is to determine who is the “real” employer (for both the worker and the Labour Standards Commission). The shorter the assignment, the higher the likelihood the commission will consider the agency as the employer. The longer the assignment, the more likely it is that the user firm exercises a greater degree of control on a daily basis of the work performed, and, thus, it may be possible to hold the agency and the user firm jointly liable for monetary claims14 (Gesualdi-Fecteau 2008: 39–41; De Tonnancour and Vallée 2009: 420–421). Within the legal logic of the traditional bipartite relationship, and in the absence of specific provisions recognising multiple employers in Québec, identifying one sole “real” employer with legal obligations towards its employees becomes paramount and is reflected in the case law. In recognition of the legislative gaps in the treatment of tripartite employment relationships, Chief Justice Lamer, on behalf of a majority of the Supreme Court of Canada, decided that the identification of the employer required a “global approach,”15 whereby the “real” employer is the entity, between the user firm and the temporary employment agency, that has the most control over all the aspects of the employment relationship according to the factual situation of each case. Furthermore, the court determined that the legislative objective of each statute must also be taken into consideration in order to give full effect to the law: for example, the employer might be determined to be one legal entity for the application of the collective agreement and collective bargaining, but another one for the purposes of minimum employment standards or occupational health and safety legislation. To illustrate the complexity of this approach, in one of the recent Québec cases studied, it was even decided that some of the employees assigned by an agency were considered to be employees of the agency, whereas others, assigned by the same agency to the same user firm, were considered to be employees of the user firm.16 In addition, the same agency may or may not be the employer, depending on the user firm.17 The “global approach” thus leads to different results regarding the identification of the employer in cases where the legal questions and the facts are similar.18 This “global approach” creates uncertainty as to the entity responsible for legal obligations and imposes a legal fiction that denies that employment relationships can be other than bilateral or bipartite. Even more troubling is the fact that the legal question “who is the real employer” often does not arise in the case law19 or the complaints procedure (De Tonnancour and Vallée 2009), even if the facts reveal that the user firm exercises considerable control over the performance of work. It is simply often assumed that the agency is the employer. In these ways, economic risk and legal liability in the employment relationship are transferred to the agency and leave the user firm to act as it sees fit within a logic of maintaining a “flexible” and “reasonably priced” arm’s-length workforce. Ultimately, the economic risk

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is borne by the workers who rely on the agency to ensure that their labour is leased. This is an additional dimension of precarity; dependency and unfreedom may thus be related in the dynamics of temporary agency work. Similarly, those subject to precarious agency work may also face related conditions of precarity associated with social reproduction, derived from low and/or uncertain pay, unstable and unsociable working hours and barriers to future planning. 3.

JOB SECURITY: THE CORNERSTONE OF THE “SOCIAL CONTRACT”

Fifty years ago, Kahn-Freund pointed out that the “most noteworthy—and in practice by far the most important—extension of regulatory legislation . . . is concerned with the duties it imposes upon the employer at the moment when the employment is terminated,” laying “some essential foundations for a law of job security” (Davies and Freedland 1983: 38–39). The counterpart of this security according to this model is the employer’s right to manage in the context of a relationship whose main characteristic is the subordination of one party to another (Deakin and Wilkinson 2005: 8). Job security is increasingly being eroded on several fronts—or has, in practice, been unattainable for many workers in employment relationships that do not correspond to the standard employment relationship model, which has been the foundation for the legal regulation of the employment relationship (see e.g. Verge 1993: 245–247; Supiot 2001: 46ff). In Québec, strong legal regulation nevertheless plays a pivotal role in guaranteeing job security to nonunionized workers, and this security is embedded in the interpretation and culture of labour law in the province (Verge and Vallée 1997: 86–9). In comparison to other provincial legislation, the Labour Standards Act provides for relatively strong job security protection against different forms of reprisals and the right to stay in employment unless a just and sufficient cause for termination can be proven. The law states that an employee’s absence due to, for example,20 illness and maternity and parental leave cannot be a cause for dismissal or other forms of reprisal (Bernstein, annual update). It is also illegal for an employer to sanction workers because they have claimed a right under the act (e.g. payment of wages or refusing to work overtime due to family responsibilities).21 In cases of such illegal acts on the employer’s part, the worker can file a complaint with the Labour Standards Commission, which then proposes voluntary mediation to reach a settlement. In the absence of a settlement, the worker can request that the complaint be referred to a specialised labour tribunal (Labour Relations Commission), which can order reinstatement and back pay as remedies.22 Workers also have the right to free legal representation by the Labour Standards Commission. The law establishes a presumption in favour of the worker, and the employer must demonstrate a just and sufficient cause for

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the sanction to be maintained. In addition to protection against retaliation, workers who have two years of continuous service in the same enterprise cannot be terminated without just and sufficient cause, which, again, must be proven by the employer.23 The complaint process is the same, but the possible remedies are more extensive because the employer can be ordered to pay material, moral and punitive damages in addition to back pay and reinstatement. Several provisions of the Labour Standards Act require an employee to have a certain length of continuous service for the same employer in order to acquire rights (e.g. longer annual leave, access to extended sick leave) and, significantly, as we have seen, the right to not be fired without just cause, which requires two years of continuous service with the same employer. For agency workers, continuous service will have to be calculated in the tripartite framework although the rule is designed for a bipartite relationship, posing problems when the identity of the employer is ambiguous.24 For instance, a worker can be transferred from the employment of the user firm to the temporary employment agency and back again, or be employed through a succession of agencies at the same user firm, doing the same work for several years.25 Such situations undermine the effectiveness of minimum employment standards regarding continuous service, and specifically job security, because workers may not be recognised as having two years of continuous service with the same employer.26 As well, in the case of employment via a temporary employment agency, fuzzy boundaries exist between termination and temporary layoffs and between termination and lack of assignments. The effectiveness of legal provisions is inevitably affected by ambiguities in determining the “real” employer (De Tonnancour and Vallée 2009: 410, 414–417). Other issues are also peculiar to situations involving temporary employment agencies: Who decides to terminate or not reassign a worker? Is the lack of assignment a termination? Where are terminated employees to be reinstated if their termination is determined to be illegal? In the case of leased labour, termination often occurs in two steps involving two actors—the user firm and the temporary employment agency. First, the agency may cancel a worker’s assignment to a specific user firm at the latter’s request. In principle, this should not constitute a termination if the agency is considered to be the employer because the agency should normally reassign the worker to another user firm. If this does not happen, the agency has, in effect, put an end to the employment relationship. The borders between dismissals, temporary layoffs and resignations, however, are extremely fluid during periods when the worker is not assigned to a user firm (De Tonnancour and Vallée 2009: 410, 414–417). By not reassigning the worker, the agency can also avoid giving prior notice for temporary layoffs or severance pay in lieu of notice.27 Workers, left in limbo, seek other employment, find other employment, be it temporary, and then refuse an assignment. In this event, they may then be considered to have

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resigned, allowing the agency and the user firm to avoid liability for unjust termination.28 Terminating the employment relationship in two steps thus raises the question of the user firm’s responsibilities when its reasons for asking the agency to put an end to a worker’s assignment are illegal or not for just and sufficient cause, or when the commercial contract between the agency and user firm ends for economic or contractual reasons. When the user firm is not considered to be the employer, can its motives for asking that the worker be removed from an assignment be contested? What is the worker’s recourse when the temporary employment agency implements its sole client’s decision and dismisses the worker without reassignment by claiming lack of work?29 What happens when the contract between the worker and the agency stipulates that the worker is terminated in the event that the contract between the agency and the user firm comes to an end?30 Is the agency or the user firm responsible for the illegal or unjustified reasons leading to the end of a worker’s assignment and dismissal? These are some of the questions raised in the case law. There is a clear and dominant tendency in recent decisions not to attribute any form of responsibility to user firms when they initiate a termination for allegedly illegal or unjustifiable reasons.31 The same tendency is also reflected in preadjudication settlements. This can be gleaned from De Tonnancour and Vallée’s study (2009: 425) where the analysis of the complaints for dismissals and illegal practices showed that in the vast majority of cases, only the agency was involved in the settlement, even though the facts available suggested that in most of the cases the user firm had played a part in the decision to sanction the worker. In the case law, only the temporary employment agency is considered to be the employer, and the identity of the “real” employer is not even at issue.32 When complaints for dismissal are received by the Labour Standards Commission, in most cases before adjudication begins, only the agency is called upon to explain the reasons behind the dismissal (De Tonnancour and Vallée 2009: 414–416). Preadjucation settlement practices and recent case law thus illustrate user firms’ impunity in cases of illegal and unjustified employment termination.33 In one case involving a dismissal without just and sufficient cause after two years of service,34 the agency fired a call-centre worker at the request of its client, a major telecommunications company. The agency’s client controlled most aspects of the work, notably by monitoring workers’ calls, and accused the worker of hanging up on a client, leading to a request that the worker no longer handle its calls. The agency had no other clients and immediately fired the worker. The tribunal decided that the dismissal was not for just and sufficient cause because the agency had not established that the client’s motivation for ending the assignment warranted a dismissal35 and ordered the agency to pay back wages, an amount to compensate job loss and moral damages (even if the dismissal was at the behest of the client).36

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Other cases illustrate user firms’ impunity in the case of illegal firings when workers do not enjoy two years of service for the same employer.37 In Leduc vs Serti Informatique Inc.,38 the agency dismissed a worker pursuant to a clause in his work contract stipulating that employment with the agency ended with the termination of the contract with the client firm. In this case, the contract between the agency and the user firm ended while the worker was absent because of illness. Under the law, an employment contract cannot be terminated on the grounds of such an absence, and the employer must demonstrate a just and sufficient cause to warrant dismissal. The tribunal acknowledged that the agency and the user firm could agree to put an end to the assignment if there was no longer a contract between them but that this did not automatically constitute just and sufficient cause to terminate the worker because this would allow an employer to indirectly do what it is prohibited from doing under the law. In Bernier vs CCI, Consultantes en remplacement Inc.,39 a personal finance advisor who worked for an agency that only had one client, a credit union with numerous branches, claimed that she had not been called back after a leave of absence for illness. The tribunal found that this did not constitute a dismissal because the employment relationship had not been explicitly terminated and the agency had taken reasonable measures, seemingly without success, to find another assignment that corresponded to her need for a gradual return to work on a part-time basis.40 The agency claimed that it had no part-time assignments available and could not accommodate the worker. Normally, if the user firm were the employer, it would have a duty to accommodate the worker and facilitate her return to work (Laflamme 2010). In other cases, the tribunal has decided that just and sufficient cause has been demonstrated if the agency establishes that its client was justified in giving a negative evaluation to the agency worker41 or that the acts for which the worker was reproached by the client were verified and justified a change of assignment.42 These cases illustrate how user firms can hide behind their contractual relationship with the agency as clients, and at the same time dictate whether a worker will remain in employment or not. In such cases, most often only the agency is considered to be the employer and the issue of who is the “real” employer is not raised, even in cases where the agency has a sole client.43 Again, this leads to the conclusion that agencies “take the fall” for user firms to preserve their commercial contractual relationship, suggesting that user firms can use temporary employment agencies as a means of avoiding strong job protection provisions in the law and of doing indirectly what they are not allowed to do directly. In addition, the ambiguity of the agency worker’s status during periods of nonassignment transfers all of the risk to the worker, while benefiting the agency, which has a pool of available workers to replace the “unassigned” employee44 who may in some cases, as we will see, also be bound by contractual exclusivity clauses limiting his or her professional mobility.

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The case law also illustrates the ineffectiveness of reinstatement as a remedy when the employer is the agency and the termination is at the initiative of the user firm.45 This is particularly true when the agency has only one client and the user firm refuses to let the reinstated worker have access to the production site.46 Illegal behaviour by the entities that profit from the work is yet again not sanctioned as provided for by law. Reinstatement as a remedy under the act provides for a rebalancing of the power relationship between nonunionized workers and their employers; this modicum of power is in effect not available to temporary employment agency workers. 4. EXCLUSIVITY AND NONCOMPETE CLAUSES: THE RIGHT TO WORK AND UNFREE LABOUR The chapter on the employment contract in the Québec Civil Code,47 a separate statute governing private, and specifically contract, law in the province, also contains provisions relevant for temporary agency workers, in particular those pertaining to exclusivity and noncompete clauses in individual employment contracts. Temporary employment agency workers can be bound by noncompete and exclusivity clauses, either directly in their employment contract or indirectly in a commercial contract between the agency and the user firm by impeding the latter from directly hiring the agency’s workers.48 Such clauses would appear to be contrary to principles regarding freedom to work and to gain one’s livelihood (Roux 2005: 223– 226). They are, however, not illegal, although they must respect certain rules detailed in the Civil Code when they are included in a labour contract.49 A worker’s obligation to not compete (even if an employment relationship no longer exists) or to exclusively offer services to specific user firms through a given temporary employment agency must be contained in a written contract between the worker and the agency. The stipulation must be limited as to time, place and type of employment to the extent necessary to protect the legitimate interests of the employer. The employer has the burden of proving that the clause is sufficiently limited, is necessary to protect its interests and does not impede employees’ right to gain their livelihood (Béliveau 2008). In one case,50 an employee had signed such a contract with a temporary employment agency specialising in providing personnel for financial institutions. Her contract stipulated that she could only work for a financial institution through the agency and that if she did not respect the contract, she could be liable for a penalty of Cdn. $1,200. The judge determined that the clause was abusive because the agency had acted in bad faith by not fulfilling its promise of a fixed number of hours of work per week. In the judge’s estimation, this restriction prevented her from gaining a livelihood. One could presume that if the agency had acted in good faith, and ensured

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that she worked the number of hours agreed upon, the contract would have been declared legal. In another case,51 involving butchers assigned to supermarkets through an agency where they earned Cdn. $14 per hour (minimum wage when the decision was rendered was Cdn. $9 per hour), the agency workers had signed contracts which contained a noncompete clause that impeded them from working for the agency’s clients, directly or through another agency, for one year after the termination of their contract. The butchers began working for a client firm, a supermarket belonging to a major chain, through another agency. The court determined that the penalties contained in the contract for breach of the noncompete clause were exorbitant (the agency had calculated that penalties amounted to a total of Cdn. $120,000 based on a Cdn. $500 penalty per day worked for a competitor or directly for the client firm) but nevertheless ordered the butchers to pay a reduced penalty (Cdn. $3,000). The court arrived at its conclusion even after determining that the noncompete clause did not meet the legal criteria, and it did not offer an analysis of the need for the clause to protect the legitimate interests of the agency. In this case, the user firm was also sued, but the court found that it could not be held liable for a noncompete clause to which it was not a party. Significantly, the agency (and implicitly the court because the butchers’ employment status was not at issue) considered the butchers to be independent contractors and not employees, even though their capacity to “sell” their services and to work for other “clients” was severely limited. Noncompete and exclusivity clauses are contrary to the precepts of freedom to work and of commercial freedom. The case law in fact often refers to interfirm noncompete clauses when dealing with such clauses in the context of employment relationships,52 confirming the principle that “there may, within reasonable limits, be contractual restrictions on the freedom to conduct a specified commercial activity.”53 This underlines the application of commercial contract law principles to employment relationships, despite the specific nature of these relationships. At the same time, one Superior Court judge bluntly stated that an employee “is not an asset or a thing belonging to the employer” and “an employer cannot prevent the employee from using, even to the profit of a competitor, his aptitudes, skills and intellectual capacity. Nor can he prohibit the employee from using the training and knowledge gained in his firm”54 (our translation). This principle has been reiterated, for example, in another case55 involving clerical workers leased through a temporary employment agency who decided to work for a competitor that had taken over the first agency’s contract with the client firm, a major tobacco company. The judge in this instance found that the agency’s main motivations appeared to be to prevent the employees from leaving the agency and working elsewhere, thereby acting as though the employees “belonged” to the agency. The court found that the clause was unreasonable and abusive and far exceeded what was necessary to protect

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the agency’s legitimate commercial interests, especially given the nonspecialised nature of the work performed by the employees. In the particular context of temporary employment agencies, the commodification of the workers’ labour which is the object of leasing places these clauses at the frontier of commercial and labour law, where the worker is considered to be an asset, in the proper sense of the term. These clauses are not illegal in Québec although they undermine workers’ right to work and professional mobility (Vallée 2010: 16–22). It should be noted that the Canadian temporary employment agency industry association’s voluntary code of ethics provides that agencies “will not restrict the right of a candidate or employee to accept employment of their choice” (Association of Canadian Search, Employment and Staffing Services n.d.). Multiple examples in the case law, however, contradict this affirmation. 5.

CIRCUMVENTING HISTORIC GAINS FOR WORKERS: KEEPING REMUNERATION DOWN

A 2005 Statistics Canada study estimated that the wage difference between regular employees and those working via temporary employment agencies was 40 per cent (Galarneau 2005: 18). These wage disparities are beneficial for the user firm because they can put downward pressure on working conditions for their regular employees.56 In addition to wage disparities, there is sometimes a lack of coordination and exchange of information between user firms and agencies regarding, for example, the number of hours to be paid.57 In one case that went to court and involved an illegal firing following a claim for unpaid wages, the facts revealed that the agency stopped paying the worker because the user firm was in default of payment.58 Other situations documented illustrate how tripartite relationships are not taken into account by the legislation or how tripartite relationships are used to avoid the application of minimum employment standards. These strategies are facilitated by the lack of regulation of agencies. One subterfuge identified in the case law and in complaints filed with the Labour Standards Commission is the use of an agency for the purpose of avoiding the remuneration of overtime. The employee works for one legal entity during the normal workweek and is then “employed” by an agency to avoid paying the overtime premium.59 Agencies within agencies (“twoheaded” and smokescreen agencies), that are different corporate entities, can also be created to avoid paying overtime (De Tonnancour and Vallée 2009: 408–410). Such strategies target cost reduction for both the agencies and the user firms. The use of temporary employment agencies in the public health sector is another example of cost reduction by lowering wages. These specialised agencies often have protocols with public health establishments

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that condition their wage practices. In one case,60 an agency specialising in home care was taken to court for unpaid wages under the Labour Standards Act. The agency contended that health establishments would only pay a certain amount for a particular home service and that workers could not claim more even if it took longer, for example, to bathe an ill or elderly person than the health establishment’s estimation. The agency was nevertheless ordered to pay the difference in wages. The protocols also may not provide for the payment of travel time between the homes of the people needing care (De Tonnancour and Vallée 2009: 414), even if the agency worker may have to make several home visits in one day and the Labour Standards Act provides for the payment of travel time if the travel is at the request of the employer.61 These examples show that contracts between an agency and a user firm may stipulate conditions that run contrary to the Labour Standards Act. If the agency is considered to be the employer, it is responsible for violations of the law, even if the rules are set down by the user firm. Very few cases reach adjudication, however. Unsurprisingly, settlements tend not to impute responsibility to the user firm, although, in theory, they could be held jointly liable for monetary claims (De Tonnancour and Vallée 2009: 419–420).62 Temporary employment agencies logically oppose joint liability, fearing no doubt that this will negatively affect their commercial relationship with user firm clients. Joint liability is also in contradiction with the idea of agencies providing a turnkey service to their clients that in theory eliminates the latter’s direct liability for labour-related claims. 6.

CONCLUSION: REGULATORY ACTORS IN QUÉBEC: LAISSER-FAIRE?

An examination of the regulatory landscape of leased labour in Québec shows that the legislator has up until now not interceded on behalf of temporary agency workers to ensure that existing standards, such as minimum employment standards, fully apply to them. Nor has the legislator intervened to ensure a modicum of accountability and control (licensing, etc.) over the temporary employment agency industry, which has developed selfregulation mechanisms such as a code of ethics, which may forestall legal regulation of its activities. For a number of years, workers’ representatives and experts (see for e.g. Bernier, Vallée and Jobin 2003) have been calling for stricter controls over practices in the industry, but the legislative agenda has not followed.63 Temporary agency workers thus remain invisible in the legislation. This invisibility is reflected in the application of the Labour Standards Act and other similar laws as other actors, such as the Labour Standards Commission, tribunals and courts, attempt to apply laws designed for bipartite

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relationships to tripartite relationships—the challenge of fitting the square peg into the round hole. Despite the “global approach” developed by the Supreme Court as a partial answer to the problem of ensuring that labour laws meet their goals and that employer responsibility can be attributed accordingly, a study of the Labour Standards Commission’s enforcement of the Labour Standards Act and of the case law tends to confirm the agency’s role as the “real” employer. This tendency, in turn, consolidates user firms’ impunity and, ultimately, in the absence of legal regulation, allows these firms to circumvent legal obligations and to do indirectly what they are not permitted to do directly. The too-easy assumption that the agency is the real employer is often the case for monetary complaints, thereby undermining the guarantee of adequate remuneration for work performed in accordance with legal standards. Job security protection is also affected by the uncertainty surrounding the identity of the “real” employer and by the tendency to attribute responsibility to the agency and not the user firm. As well, the tripartite or multipartite nature of the employment relationship leads to confusion as to the qualification of the termination of services and the identification of the real motive behind the termination. The nature of the employment relationship is in addition a determining factor in the efficiency of existing remedies designed for bipartite relationships. The extent of the extralegal regulatory impact of these tripartite relationships on job security protection in Québec is difficult to evaluate in light of case law to date, which only represents the tip of the iceberg in a context where the vast majority of complaints are settled before adjudication, if they are ever brought to the Labour Standards Commission at all. The leasing of labour not only weakens existing job security protection, but it also brings to light an acceptance of applying commercial contract law principles to the area of labour law, which, in theory, is a discrete category of law that has distanced itself from general contract law. The ambivalent case law on exclusivity and noncompete clauses in Québec undermines the autonomy of labour law. By binding workers to such clauses when they have little or no control over the conditions of their leasing, exclusivity and noncompete clauses represent a new means of control not only over work performed but over professional mobility more generally. In short, the legality of these clauses encourages a commodification of work and of the worker, the agency’s primary “asset,” and limits their freedom to circulate in the labour market. In addition, they suffer a wage penalty which is likely to generate additional precarity in relation to social reproduction. The various regulatory actors—the legislature, the courts and the temporary employment agency industry itself—thus shape and define the precariousness and unfreedom of temporary agency work.

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BIBLIOGRAPHY Arthurs, H. W. (2006) Fairness at work: federal labour standards for the 21st century [online]. Gatineau, Québec: Human Resources and Skills Development Canada. Available at: http://www.hrsdc.gc.ca/eng/labour/employment_standards/fls/ final/page00.shtml [Accessed 25 October 2012]. Association of Canadian Search, Employment and Staffing Services (ACSESS) (n.d). Code of ethics [online]. Available at: http://www.acsess.org/ABOUT/ethics.asp [Accessed 25 October 2012]. Barnett, G. (2008) Employment standards for non-standard employment: a legislative framework for agency work in Canada, Appeal, 13, pp. 74–89. Bartkiw, T. J. (2009) Baby steps? Toward the regulation of temporary help agency employment in Canada, Comparative Labor Law & Policy Journal, 31 (1), pp.163–206. Bartkiw, T. J. (2012) Unions and temporary help agency employment, Relations industrielles/Industrial Relations, 67 (3), pp. 453–476. Béliveau, N.-A. (2008) Les conditions de validité des clauses de non-concurrence dans les contrats d’emploi: synthèses, Développements récents sur la non-concurrence, 289, pp. 3–36. Bernier J. (2011) L’industrie des agences de travail temporaire: Avis sur une proposition d’encadrement, Cahier de transfert CT-2011–001, ARUC Innovations, travail et emploi, Ste-Foy (Québec). Bernier, J. (2012) La location de personnel temporaire au Québec: un état de situation, Relations industrielles/Industrial Relations, 67 (2), pp. 283–303. Bernier, J. and Vallée, G. (2004) Pluralité des situations de travail salarié et égalité de traitement en droit du travail québécois, in: Bouilloux, A., Béraud, J.-M., Dockès, E. and Jeammaud, A. (eds.) Analyse juridique et valeurs en droit social, Études offertes à Jean Pélissier. Paris: Dalloz, pp. 69–91. Bernier, J., Vallée G. and Jobin, C. (2003) Les besoins de protection sociale des personnes en situation de travail non traditionnelle, Rapport final du Comité d’experts chargé de se pencher sur les besoins de protection sociale des personnes vivant une situation de travail non traditionnelle. Québec: Gouvernement du Québec. Available at: http://www.travail.gouv.qc.ca/publications/archives.html [Accessed 25 October 2012]. Bernstein, S. (2006) Mitigating precarious employment in Québec: the role of minimum employment standards legislation, in: Vosko, L. F. (ed.) Precarious employment: understanding labour market insecurity in Canada. Montreal: McGill-Queen’s University Press. Bernstein, S. (2008) The “complexificaton” of labour law and of its teaching, Canadian Labour and Employment Law Journal, 14, pp. 129–138. Bernstein, S. (annual update) Exécution du travail, durée du travail et congés, in: JurisClasseur Québec. Rapports individuels et collectifs du travail. Montreal: LexisNexis Canada. Boston Consulting Group and CIETT (International Confederation of Private Employment Agencies) (2011) Adapting to change: how private employment services facilitate adaptation to change, better labour markets and decent work [online]. Brussels: CIETT. Available at: http://www.ciett.org/fileadmin/templates/ciett/docs/Stats/Adapting_to_Change/CIETT_Adapting_to_Change.pdf [Accessed 25 October 2012]. Canada. Statistics Canada (2010) Employment services. Service bulletin. Ottawa: Statistics Canada. Catalogue no. 63-252-X., p. 1–8. Commission des normes du travail (2011) Rapport annuel de gestion 2010–2011. Québec: Commission des normes du travail.

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Cranford, C. J. and Vosko, L. F. (2006) Conceptualizing precarious employment: mapping wage work across social location and occupational context, in: Vosko, L. F. (ed.) Precarious employment: understanding labour market insecurity in Canada. Montreal: McGill-Queen’s University Press, pp. 43–66. Davies, P. and Freedland, M. (1983) Kahn-Freund’s labour and the law. 3rd ed. London: Stevens & Sons. De Tonnancour, V. and Vallée, G. (2009) Les relations de travail tripartites et l’application des normes minimales du travail au Québec, Relations industrielles/ Industrial Relations, 64 (3) pp. 399–441. Deakin, S. and Wilkinson, F. (2005) The law of the labour market: industrialization, employment and legal evolution. Oxford: Oxford University Press. Désilets, C. and Ledoux, D. (2006) Histoire des normes du travail au Québec de 1885 à 2005: De l’Acte des manufactures à la Loi sur les normes du travail. Québec: Publications du Québec/Commission des normes du travail. Fudge, J. (1991) Reconceiving employment standards legislation: labour law’s little sister and the feminization of labour, Journal of Law and Social Policy, 7, pp. 73–89. Galarneau, D. (2005) Earnings of temporary versus permanent employees, Perspectives on Labour and Income., 6 (1) (Statistics Canada—Catalogue no. 75-001XIE), pp. 5–18. Galarneau, D. (2010) Temporary employment in the downturn, Perspectives on Labour and Income, 11 (11) (Statistics Canada—Catalogue no. 75-001-X ), pp. 5–17. Gesualdi-Fecteau, D. (2008) Fragmentation de l’entreprise et identification de l’employeur: où est Charlie? Développements récents en droit du travail, 293, pp. 1–49. International Labour Office (ILO) (2008) Guide to private employment agencies— regulation, monitoring and enforcement [online]. Geneva: ILO. Available at: http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/ instructionalmaterial/wcms_083275.pdf [Accessed 25 October 2012]. Laflamme, A.-M. (2010) Le maintien en emploi du salarié handicapé : effets et limites de l’obligation d’accommodement raisonnable en droit québécois, Pistes [online], 12 (1). Available at: http://www.pistes.uqam.ca/v12n1/pdf/v12n1a1.pdf [Accessed 25 October 2012]. Lippel, K., Bernstein S. and Messing, K. (2004) Travail atypique: protection légale des conditions minimales d’emploi et de la santé, Rapport final soumis au FQRSC dans le cadre du programme d’Actions concertées Le travail atypique, la mutualisation du risque, la protection sociale et les lois du travail [online]. Montreal: Université du Québec à Montréal. Available at: http://www.invisiblequifaitmal. uqam.ca/fr/pdf/travail-atypique%202004.pdf [Accessed 25 October 2012]. Lippel, K. and Laflamme, A.-M. (2011) Les droits et responsabilités des employeurs et des travailleurs dans un contexte de sous-traitance: enjeux pour la prévention, l’indemnisation et le retour au travail, Développements récents en droit de la santé et sécurité du travail, 334, pp. 267–360. Lippel, K., MacEachen, E., Saunders, R., Werhun, N., Kosny, A., Mansfield, L, Carrasco, C. and Pugliese, D. (2011) Legal protections governing the occupational safety and health and workers’ compensation of temporary employment agency workers in Canada: reflections on regulatory effectiveness, Policy and Practice in Health and Safety, 9 (2), pp. 69–90. Paquet, E. (2005) Le statut d’emploi: un élément constitutif de la condition sociale? Relations industrielles/Industrial Relations, 60 (1), pp. 64–87. Peck, J. A and Theodore, N. (2002) Temped out? Industry rhetoric, labor regulation and economic restructuring in the temporary staffing business, Economic and Industrial Democracy, 23 (2), pp. 143–175.

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Pineau, A. (2009) Agence de personnel: que le véritable employeur se lève, Bulletin d’informations juridiques de la CSN, April, pp. 1–19. Québec. Ministère du travail (2002) Revoir les normes du travail au Québec, un défi collectif [online]. Québec: Ministère du travail. Available at: http://www.travail. gouv.qc.ca [Accessed 25 October 2012]. Roux, D. (2005) Le principe du droit au travail: juridicité, signification et normativité. Montreal: Wilson & Lafleur. Supiot, A. (2001) Beyond employment: changes in work and the future of labour law in Europe. New York: Oxford University Press. Trudeau, G. (1997) Temporary employees hired through a personnel agency: who is the real employer? Canadian Labour & Employment Law Journal, 5, pp. 359–376. Vallée, G. (1999) Pluralité des statuts de travail et protection des droits de la personne: quel rôle pour le droit du travail? Relations industrielles/Industrial Relations, 52 (2), pp. 277–312. Vallée, G. (2005) Pour une meilleure protection des travailleurs vulnérables: des scénarios de politiques publiques, Réseaux canadiens de recherche en politiques publiques (RCRPP)/Canadian Policy Research Networks (CPRN), No. 2, mars 2005, 69 pages. Vallée, G. (2010) Les nouvelles formes d’emploi et le “brouillage” de la frontière entre la vie de travail et la vie privée: jusqu’où va l’obligation de disponibilité des salariés? Lex Electronica [online], 15 (2). Available at: http://www.lex-electronica.org/fr/resumes_complets/285.html [Accessed 25 October 2012]. Vallée, G. and Dorion, M. H. (annual update) Rupture à l’initiative du salarié et congédiement déguisé, in: JurisClasseur Québec. Rapports individuels et collectifs du travail. Montreal: LexisNexis Canada. Verge, P. (1993) Le contrat de travail selon le Code civil du Québec: pertinence ou impertinence? Revue générale de droit, 24, pp. 237–253. Verge, P. and Vallée, G. (1997) Un droit du travail? Essai sur la spécificité du droit du travail. Montreal: Yvon Blais. Vosko, L. F. (2000) Temporary work: the gendered rise of a precarious employment relationship. Toronto: University of Toronto Press. Vosko, L. F. (2009) Less than adequate: regulating temporary agency work in the EU in the face of an internal market in services, Cambridge Journal of Regions, Economy and Society, 2, pp. 395–411.

NOTES 1. This research was supported by a grant from the Canadian Social Sciences and Humanities Research Council and is part of the Interuniversity Research Centre on Globalization and Work (CRIMT) research programme. 2. Approximately 90 per cent of the Canadian labour force is governed by provincial labour laws. The Canadian Constitution recognises the exclusive legislative powers of the provinces regarding property and civil rights and matters of a local or private nature, which includes employment relations, while the powers of the federal parliament are limited to certain enterprises and to unemployment insurance (Constitution Act 1867, 30 & 31 Victoria, c. 3 (UK), ss. 91 and 92). 3. Unions, of course, also play a role in the regulation of temporary agency work, but this role is not specifically addressed in this chapter. On the role of unions in Ontario, see for example Bartkiw (2012).

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4. See also Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on Temporary Agency Work. 5. For example, in Commission des normes du travail vs Agence de personnel Parador Inc., [1986] A.Q., no. 621, the Court of Appeal stated that it would not decide if agencies could charge workers. The Association of Canadian Search, Employment and Staffing Services’ (ACSESS) voluntary code of ethics, however, states that its members “will derive income only from clients and make no direct or indirect charges to candidates or employees unless specified by a license.” 6. With the notable exception of occupational health and safety, which is covered by other laws. Legislation governing the employment relationship and working conditions is fragmented in a series of separate laws in Québec, and in North America generally (Bernstein 2008). 7. Revised Statutes of Québec, RSQ c. N-1.1. 8. There have been no significant legislative changes or case law developments in Québec since 2006. 9. This is true of all complaints filed with the Labour Standards Commission, as confirmed in the commission’s annual reports. See e.g. Commission des normes du travail (2011: 46, 90–91). 10. Temporary employment agencies are classified under the North American Industry Classification System (NAICS) as “employment services” and include “temporary staffing,” “permanent placements and contract staffing” and “other goods and services.” In 2010, “temporary staffing” made up just over 56 per cent of the industry’s sales (Canada. Statistics Canada 2010: 4). 11. City of Pointe-Claire vs Québec (Labour Court), [1997] 1 SCR 1015, par. 63. 12. The 2008 European Directive on temporary agency work clearly identifies temporary agencies as the employers: Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on Temporary Agency Work, section 1(b) and (c). See Vosko (2009) for a critical analysis of the European Directive. 13. This is confirmed on the Association of Canadian Search, Employment and Staffing Services (ACSESS) Web site: http://www.acsess.org [Accessed 25 October 2012]. 14. Labour Standards Act, s. 95. This provision does not explicitly refer to temporary employment agencies. 15. City of Pointe-Claire vs Québec (Labour Court), [1997] 1 SCR 1015. 16. Syndicat des professionnelles en soins du CSSS de la Montagne (FIQ) vs Centre de santé et de services sociaux de la montagne, 2009 QCCRT 0442, judicial review rejected: 2011 QCCS 81. 17. Drakkar Ressources Humaines vs Lévy Transport Ltée, [2000] AZ50080472 (CS); Drakkar Ressources Humaines vs Raymond-Chabot Inc. and Annick Émard et al., [2003] AZ-50180964 (CS). 18. Compare the following decisions: Syndicat des infirmières, infirmières auxiliaires et inhalothérapeutes de l’Est du Québec (CSQ) vs Centre de santé et de services sociaux de la Mitis (2009 QCCRT 0233, judicial review rejected: 2009 QCCS 5571) and Professionnelles et professionnels en soins de santé unis (FIQ) vs Hôpital Maisonneuve-Rosemont (2011 QCCRT 0447, review rejected: 2012 QCCRT 0082, application for judicial review, CS 29/03/12), in which the user firm is designated as the employer, compared with Syndicat des travailleuses et travailleurs des résidences et centres d’hébergement privés de la Rive-Sud de Montréal—CSN vs Jardins intérieurs de St-Lambert Inc. (2006 QCCRT 78) where the agency is identified as the employer, and with

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Syndicat des professionnelles en soins du CSSS de la Montagne (FIQ) vs Centre de santé et de services sociaux de la montagne (2009 QCCRT 0442, judicial review rejected: 2011 QCCS 81) where the agency or the user firm is considered to be the employer, depending on the employee. 19. See e.g. Leduc vs Serti Informatique Inc., 2010 QCCRT 0065, review rejected, 2010 QCCRT 0556; Aspirot vs Synergie Contact Inc., 2011 QCCRT 0243. 20. Labour Standards Act, ss. 79.1 to 81.17.6 and 122 ff. 21. Labour Standards Act, ss. 122 ff. 22. Similar recourses exist under other Québec laws in the case of reprisals for union activities, for denouncing health and safety violations, etc. 23. Labour Standards Act, ss. 124 ff. 24. See e.g. Corriveau vs Résidence St-Philippe de Windsor, [1997] CT 464. 25. See e.g. Daigle vs Les Augustines de la miséricorde de Jésus du Monastère de l’Hôpital général de Québec and Services & organisation de soins Inc., 2004 QCCRT 0241; Chantal vs Alcoa-Aluminerie de Deschambault, 2007 QCCRT 0336. 26. This has also been confirmed in interviews with representatives from the Labour Standards Commission (De Tonnancour and Vallée 2009: 418). 27. Labour Standards Act, ss. 82ff. 28. Unless a constructive (or “disguised”) dismissal can be demonstrated (Vallée and Dorion, annual update). 29. Aspirot vs Synergie Contact Inc., 2011 QCCRT 0243; Bernier vs CCI, Consultantes en remplacement Inc., 2009 QCCRT 0231. 30. Leduc vs Serti Informatique Inc., 2010 QCCRT 0065, review rejected, 2010 QCCRT 0556. 31. Leduc vs Serti Informatique Inc., 2010 QCCRT 0065, review rejected, 2010 QCCRT 0556; Aspirot vs Synergie Contact Inc., 2011 QCCRT 0243. 32. See however Tremblay vs Ameublement Tanguay Inc., [1996] AZ-96144530 (CT); Theveno vs Mega Brands, 2009 QCCRT 0344. 33. Leduc vs Serti Informatique Inc., 2010 QCCRT 0065, review rejected, 2010 QCCRT 0556; Aspirot vs Synergie Contact Inc., 2011 QCCRT 0243. 34. Aspirot vs Synergie Contact Inc., 2011 QCCRT 0243. 35. For an example in a unionized workplace, see also: G.K. Cronos Building Maintenance Ltd. vs Union des employées et employés de service, section locale 800, [1996] AZ-96141262 (arbitration). 36. The law does not provide for joint and several liability in cases of dismissal. See Labour Standards Act, s. 95. 37. Labour Standards Act, ss. 122ff. 38. Leduc vs Serti Informatique Inc., 2010 QCCRT 0065, review rejected, 2010 QCCRT 0556. 39. Bernier vs CCI, Consultantes en remplacement Inc., 2009 QCCRT 0231. 40. See however Koné vs 9223–7882 Québec Inc. Ressources RH, 2012 QCCRT 0125. In this case the agency did not offer another assignment after the worker had filed a monetary claim with the Labour Standards Commission and the tribunal found that she had been illegally fired. 41. Janvier Joseph vs 2320–4035 Québec Inc., 2011 QCCRT 0252. 42. Ouellet et Sécurité Kolossal Inc., 2010 QCCRT 0529, request for revision rejected, 2011 QCCRT 0325 (recourse against reprisals for union activities under the Québec Labour Code). 43. Aspirot vs Synergie Contact Inc., 2011 QCCRT 0243. See however Theveno et Mega Brands, 2009 QCCRT 0344; Tremblay et Ameublement Tanguay Inc., [1996] AZ-96144530 (CT).

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44. See however Koné vs 9223–7882 Québec Inc. Ressources RH, 2012 QCCRT 0125. Here, the tribunal determined that the fact that the agency had not offered another assignment to the worker after she had filed a monetary complaint with the Labour Standards Commission constituted an illegal dismissal. 45. See e.g. Gallant vs Corporation Nordia, 2011 QCCRT 0367. 46. See e.g., by analogy, a subcontracting case: Hamilton vs ETI Canada Inc., 2007 QCCA 707, permission to appeal to Supreme Court of Canada denied 13/12/2007. Only the subcontractor was ordered to reinstate the worker and further recourse against the client firm was unsuccessful: Hamilton et QIT— Fer et titane Inc., 2007 QCCRT 0514 (rejection of a reinstatement order against the client firm); Hamilton vs QIT-Fer et titane Inc., 2008 QCCS 949 (rejection of a contempt of court order against the client firm). 47. Statutes of Québec 1991, c. 64, ss. 2085–2097. Private law is governed by the Civil Code in Québec and by Common Law in other provinces. Other laws—such as the Labour Standards Act—may complement the code or make exceptions to it. 48. For example, in Drakkar Ressources Humaines Inc. v. Levy Transport Ltée, DTE 2000T-1180 (CS), which does not specifically concern the legality of such clauses, the court implies that they are legal. The agency in this case successfully sued a client firm for hiring drivers who had previously worked for the agency. 49. Civil Code, ss. 2089 and 2095. 50. Agence de placement Hélène Roy v. Nancy Rioux, (1997) R.L. 297 (CQ). 51. Agence Maître Boucher Inc. vs Robert, 2009 QCCS 1120. 52. See for example: Ikon Solutions de bureau Inc. vs Docu-Plus Conseillers en gestion de documents Inc., 2009 QCCS 123 p. 7–8. The judge cites a Court of Appeal decision involving two photocopy machine suppliers. See also: Agence Maître Boucher Inc. vs Robert, 2009 QCCS 1120. 53. Copiscope Inc. vs T.R.M. Copy Centers (Canada) Ltd., JE 99–77 (CA) p. 19. 54. GS/C Communication Inc. vs Maurice, 2007 QCCS 4646, par. 31 and 32. The judge distinguished this case involving a specialised communications technician from another case involving an expert in the development of computer games (par. 30): Ubi Soft Divertissements Inc. vs Champagne-Pelland et al. REJB 2003–48437 (CA). 55. Ikon Solutions de bureau Inc. vs Docu-Plus Conseillers en gestion de documents Inc., 2009 QCCS 123. 56. See the facts and analysis in Commission des droits de la personne et des droits de la jeunesse vs Syndicat des constables spéciaux 2010 QCTDP 3, par. 207 to 216; permission to appeal granted: 2010 QCCA 641. 57. Interviews with representatives of the commission have confirmed that this was a recurring problem and complicated the application of the law (De Tonnancour and Vallée 2009: 405–406). 58. Koné vs 9223–7882 Québec Inc. Ressources RH, 2012 QCCRT 0125. 59. See e.g.: Comité paritaire des agents de sécurité vs Agence de sécurité régionale Inc., DTE 2000T-1080 (CQ), permission to appeal dismissed, 17/10/00 (CA no. 500-09-010134-005) (this case applied a sectoral regulation on minimum working conditions for security guards, and not the Labour Standards Act). 60. Commission des normes du travail vs Gamma Personnel Inc., 2011 QCCQ 15500. 61. Labour Standards Act, s. 57(3). 62. This was confirmed in the De Tonnancour and Vallée study. In 56.25 per cent of the settled monetary claims studied, the agency paid, in 37.5 per cent

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the user firm paid; in only 6.25 per cent of the claims did both pay. In 87.5 per cent of the settled claims concerning job security, the agency paid, and in 12.5 per cent the user firm paid (De Tonnancour and Vallée 2009: 425) 63. In 2010, the minister of labour requested an opinion from an advisory council on labour and employment concerning the regulation of agencies (see Bernier 2011). No legislative changes have been proposed to date.

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Contributors

Paul Benjamin, Professor, Department of Commercial Law, University of Cape Town, and practising attorney Stéphanie Bernstein, Professor, Faculty of Political Science and Law, Université du Québec à Montréal Neil M. Coe, Professor of Economic Geography, National University of Singapore Judy Fudge, Professor and Lansdowne Chair, Faculty of Law, University of Victoria Nik Theodore, Associate Professor in the Urban Planning and Policy Program, University of Illinois at Chicago Daniel Parrott, Director of Legal and Education Services, Labour Standards Division, Ministry of Labour Relations and Workplace Safety, Government of Saskatchewan Jamie Peck, Canada Research Chair in Urban & Regional Political Economy and Professor of Geography, University of British Columbia Kendra Strauss, Lecturer, Department of Geography, University of Cambridge Guylaine Vallée, Professor, School of Industrial Relations, Université de Montréal Kevin Ward, Professor of Human Geography, School of Environment and Development, University of Manchester Michael Wynn, Reader in Law, Kingston University London Feng Xu, Associate Professor in Political Science, University of Victoria

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Index

The term ‘agencies’ stands for all forms of labour intermediaries Aaronson, D. 45 Abel, R. 138 Adecco 54, 95, 96, 112, 151, 165 African Labour Services 135 age and agency work 6, 183n.6 agency workers see temporary agency workers agricultural labour: in South Africa 124 – 5; in UK 164 – 5, 169 – 70, 172 – 3, 175 – 9; see also migrant workers Agunias, D. R. 89 Ahmed, G. 114 Allamby, L. 179 Allan, Nancy 85, 89 Allbecon Olympia 54 Allman, M. 89 American Staffing Association 34, 44, 101, 114 Anderson, B. 20, 179 Andersson, P. 114 Andreas, R. 138 Androff, D. K. 179 Antonpoulos, R. 20 Appelbaum, E. 45 Arrowsmith, J. 66, 114 Arthurs, H. 179 Arthurs, H. W. 199 Arts, W. 114 Association of Canadian Search, Employment and Staffing Services (ACSESS) 80 – 1, 89, 196, 199 Association of Caregiver & Nanny Agencies Canada (ACNA Canada) 81, 82, 88 atypical employment see nonstandard employment

Auer, P. 66 Australia 98, 99, 101, 106 – 12 Autor, D. H. 45 Bakan, A. B. 90, 91 Bakker, I. 159, 179 Balch, A. 179 Baldwin, P. 114 Barber, P. G. 90 Barnett, G. 199 Bartkiw, T. J. 199 Basok, T. 20 Batnitzky, A. 22, 180, 181 Bauder, H. 20 Beck, U. 20 Beck-Gersheim, E. 20 Belgium 53, 99 Béliveau, N.-A. 199 Bell, M. 66 benefits see occupational benefits Benería, L. 20, 90 Benjamin, Paul 138; on South Africa and Namibia 118 – 42 Benner, C. 21 Berchem, S. P. 45 Bergström, O. 114 Bernier, J. 199 Bernstein, Stéphanie 199, 200; on temporary work in Québec 184 – 205 Bezuidenhout, A. 138, 139 Bianxiezu 159 bilateral employment 5, 7, 8, 185, 189 blacks and agency work 6, 171 Bourdieu, Pierre 10 Bradshaw, M. 114 Brass, T. 21, 179, 180

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Index

Brassey, M. 139 Brenner, J. 180 British Columbia: live-in caregivers 71 – 5, 76, 80 – 5; and Philippines bilateral agreement 78, 79, 84; regulation shortcomings 72 Brogan, T. W. 45 Brunk, T. 116 Burroni, L. 66 business cycle, impact of agencies 27 – 8, 38 – 45 Business Europe 53 Butler, J. 180 Campbell, I. 24 Canada: and immigration consultants 80; labour case law 188 – 9; LiveIn Caregiver Program (LCP) 70 – 89; obtaining permanent residence status 73; and provincial powers 201n.2; rules on job placement fees 79; temporary foreign worker programs 73, 87, 88; wage suppression in 196 – 7; see also by province Cao, Haidong 159 Cappelli, P. 45 Carnoy, M. 21 Castells, M. 21 Castree, N. 21 Chang, Kai 160 Chari, S. 22 Cheadle, H. 139 Chen, Jingjing 160 Chen, Xiong 163 Cheng, Qijin 160 China: contract employment 145 – 7; impact of agencies 153 – 8; internal migrant workers 144 – 5, 157 – 9; role of agencies 143 – 4, 147 – 53; state-owned enterprises (SOEs) 145 – 6, 148, 149 Christopherson, S. 22, 181 Ciscel, D. H. 21 citizenship see immigrant status class: in China 145, 158; formation of 18 – 19, 172 clerical workers 27, 30 client firms (user enterprise): flexibility 26, 184; lower labour costs 43, 153; management practices 42 – 3, 63, 127, 184 – 5, 196 – 7; relationship with agencies 7, 13, 28 – 30, 64 – 6, 123;

responsibilities 123, 133 – 5, 138, 192 – 4; short-term savings 44 – 5 code of ethics 81, 196 Coe, Neil M. 21, 45, 115, 160, 180; on distinctive national markets 20, 94 – 117 coerced labour, use of term 174 collective representation: obstacles to 185, 186; in South Africa 119, 121, 122, 125, 126, 127; see also trade unions Confederation of British Industry (CBI) 55 – 6, 59 – 60 construction work 3, 36, 38, 155 – 6 contingent work 5, 9, 26 – 30, 42 – 5; see also precarious work relationships contract workers: and agencies 13; fixed-term 102, 166, 167; noncompete clauses 194 – 6; in UK 63 – 6 Convention 181 see European Directive on Agency Workers (2008/104/EC) Cooney, S. 139 Coppola, M. 180 Cossman, B. 21 Countouris, N. 66, 67, 139 Cousins, C. 67 Cox, R. 180 Cranford, C. J. 180, 200 Cridland, John 60 Cumbers, A. 21, 22 Czech Republic 98, 106 – 11, 112 Datta, K. 21, 24 Davidov, G. 180 Davies, P. 139, 200 Dayangwang 160 Deakin, S. 200 decent work 14, 176 – 7 Degiuli, F. 115 Denmark 53, 99, 101 DeRemer, D. 45 Désilets, C. 200 De Tonnancour, V. 200 direct employment relationships 7, 8 Directive on Temporary Agency Work see European Directive on Agency Workers discrimination: based on employee status 121, 122; and migrant workers 12, 176; and precarious work 6, 12, 171 – 2, 183n.6

Index dismissal protection 8, 35, 123, 125, 190 – 4 disposable temporary worker 4, 18 domestic agencies 97, 101 – 2, 106, 112 – 13 domestic workers 70, 72, 81, 92n.1, 173 Duffy, M. 90 Dyer, S. 22, 180, 181 Dyson, Dave 85, 90 economic migration 7, 9; see also migrant workers Edior 54 education and skills training 52, 53, 124, 172 Elcioglu, E. F. 180 employer/employee relationship: bilateral 5, 7, 8, 185, 189; and immigration status 70; and legal obligations 8, 188 – 90; risk transfer 1, 6, 35, 38, 42, 178 – 9; role of agencies 28 – 30, 42 – 5; tripartite 7 – 8, 26, 54, 55 – 6, 120, 168, 188 – 9 employer-of-record designation 30 employment agencies: terminology 183n.3; see also temporary employment agencies (TEAs) employment hire services (EHS) 128 employment rights: and employee status 8, 132, 168, 185; and equal treatment principle 57, 59 – 60, 177, 178; eroding of 26 – 8, 30; and period of assignment 52 – 3, 59 – 60, 63 – 4, 122, 191; termination/temporary layoffs 125, 191; see also job security; mobility of labour Englelandt, A. 45 equality principle: and European Directive 61, 65, 121 – 2; and nonstandard contracts 50, 51, 54; and qualifying period 55, 59 – 60, 61, 63 – 4 equal pay see wages Esping-Andersen, G. 99 – 101, 115 ethnic minorities: and agency work 6, 171, 183n.6; and labour markets 172; migrant workers 12; postwar changes 2 EuroCIETT 45, 52, 54, 67 European Directive on Agency Workers (2008/104/EC): and China 148;

211

and flexicurity 49 – 51; legislative process 51 – 60; and Namibia 129, 130; provisions 61 – 2, 120 – 2; and UK 48, 62, 165 – 6, 168 – 9, 177 European Economic and Social Committee (EESC) 56 European Employment Strategy (EES) 50 European Parliament 56 – 60 European Trade Union Confederation (ETUC) 53, 54, 55, 69n.9 European Union (EU): composition of 49; flexible labour markets 9; flexicurity agenda 49 – 50, 51, 62, 66; legislative process 51 – 60; qualified majority voting (QMV) 49, 53, 59; and temporary agency workers 52 – 3; see also European Directive on Agency Workers Evans, Y. 21, 24 Fairey, D. 90 farm labour see agricultural labour Federici, S. 21 feminist labour theory 4, 15 – 16, 19 Finland 53, 101 Fisher, P. 45 flexicurity 49 – 50, 51, 62, 66 forced labour 13, 14, 174, 176 – 7 Forde, C. 21, 180 foreign workers: live-in caregivers 70 – 89; transnational migrant workers 13, 18, 178 France 52, 53, 99, 101, 102 Freedland, M. 139, 200 Freeman, R.B. 45 free/unfree distinction: degrees of 14 – 16, 19, 174 – 7, 185; noncompete clauses 194 – 6; and precarious work 3, 12 – 14, 70, 137 – 8, 153 Fudge, Judy 21, 68, 90, 180, 200; on temporary work 1 – 25; on transnational agencies in BC 20, 70 – 93 Galarneau, D. 200 Gallagher, M. E. 160 Gangmasters Licensing Authority (GLA) 164 – 5, 169 – 70, 173, 176, 177 – 9 Gelissen, J. 114

212

Index

gender: and agency work 16 – 19, 172, 183n.6; contract 1, 17; and social reproduction 16 – 19 Germany 52, 53, 101 Gesualdi-Fecteau, D. 200 Gidwani, V. K. 22 Gill, S. 159 Godfrey, S. 139 Golden, L. 45 Goldring, L. 22, 180 Gonos, G. 45 Gonzales, F. 22 Goodman, C. J. 45 Gordon, J. 46 Gottfried, H. 46 Green, F. 21, 180 Grimshaw, D. 23 Guevarra, A. R. 90 Guo, Hong 160 Guowuyuan Yanjiushi 160 Hall, P. A. 115 Hall, R. E. 46 Harrington, J. 22 Hatton, E. 46 Hayek, F. A. 180 health and safety: breaches of 164, 173; legislation 56, 121, 124, 128, 189 health care workers 31, 124 Heery, E. 115 Hegel, G. W. F. 14 Hepple, B. 68 Herbert, J. 21, 24 Herod, A. 22 Herrera, G. 22 Hobsbawm, E. J. 180 home support workers 72, 197 Horton, R. 67, 139 hospitality sector workers 6, 173 hours of work 81, 122, 178; overtime 41, 70, 196 Houseman, S. N. 45 Hui, Mingsheng 160 ICN Consulting Inc. (ICNC) 83 – 4 illegal labour practices: in China 155 – 6; nonpayment of wages 123, 140n.9; of recruiters in BC 82, 84 – 5; and seasonal workers 164 – 5 Imai, J. 115 immigrants see migrant workers

immigrant status: illegal 7, 164, 169, 173, 175 – 7; and immigration controls 11 – 12; tied to work 70, 73, 176 immigration consultant fees 70 – 1, 80, 81 – 4 independent contractors 133, 195 industrial workers 27, 30, 34 intermediated employment relationships: defined 5; terminology 183n.3; triangular nature of 7 – 8, 26, 54, 55 – 6, 120, 168, 188 – 9 International Confederation of Private Employment Agencies (CIETT) 52, 54, 104, 112 International Labour Organisation (ILO) 13, 22, 152, 160, 180; and labour as a commodity 89, 129, 165, 177; see also European Directive on Agency Workers international migrant workers 11 – 12, 13, 18, 178 Ireland 99 Italy 52, 99, 101, 102 Japan 98, 101, 106 – 11, 112 Jauch, H. 139 Jiang, Yungzhang 160 job creation 43, 126; jobless recovery 38, 40 – 1 Jobin, C. 199 job markets see labour markets job placement fees 79, 81, 82 – 3, 86, 121 job security: of contract labour 26, 51, 130, 190 – 4, 198; and dismissal protection 8, 35, 123, 190 – 4; termination/temporary layoffs 125, 191 Johns, J. 21, 45, 115, 160, 180 Jones, E. 68 Julve, Bernadino 79, 85 Katz, C. 160 Katz, L. F. 46 Kelly Services 54, 95, 151, 160 Keter, V. 68 Keune, M. 66 Kilcoyne, P. 46 Kitschelt, H. 68 Korea 122 Krahn, Christopher Taiho 82

Index Krissman, F. 22 Krueger, A. B. 46 labour as a commodity 14 – 15, 89, 129, 165, 177 labour brokers: in South Africa 123 – 7, 131–3, 136–8; see also temporary employment agencies (TEAs) labour costs: and agencies 6, 85 – 6; and flexibility 26, 29, 184; and migrant workers 154; see also wages labour hire 119, 120; see also temporary agency workers labour law: avoidance by agencies 125, 127; international labour standards 120 – 2; lack of protection for agency workers 119; and non standard contracts 7 – 8, 50; see also regulatory process labour market intermediaries (LMIs) 5 – 6, 7, 146 labour markets: business cycles 27 – 8, 38 – 45; and flexicurity 49 – 51; job creation 38, 40 – 1, 43, 126; local 44, 97, 143 – 4; national comparisons 94 – 114; polarisation 9, 15; and precarious work 6, 10 – 13, 26 – 30, 170 – 3; regulatory process 19 – 20; restructuring in US 28 – 45; segmentation of 172; and social reproduction 178 – 9; temporary job niches 43 labour unions see trade unions Laflamme, A.-M. 200 Lambert, S. J. 46 Lamer, Chief Justice 188, 189 Lamphere, L. 22 Landolt, P. 22, 180 Laslett, B. 180 leased labour: in Québec 184 – 98; see also temporary agency workers Ledoux, D. 200 Lee, C. K. 160 Lee, M. 161 Leighton, P. 68, 182 Lin, G. 161 Lippel, K. 200 Liu, Panpan 161 Live-In Caregiver Program (LCP) 70 – 89

213

Ma, Hangqing 161 McCollum, D. 181 MacDonald, M. 24 McDowell, L. 22, 180, 181 McFadden, Pat 58, 60 McIlwaine, C. 21, 24 McKay, S. 22, 181 MacKenzie, D. 115 MacKinnon, D. 22 Macklin, A. 90 management sector workers 173 Mance, S. M. 45 Manitoba 72, 85 – 8, 89 Manpower 54, 95, 96, 112, 151, 161, 165 Markova, E. 22, 181 Martin, P. 91 Martinez, S. 181 Marx, Karl 14, 16, 22 May, J. 21, 24 Meadows, P. 24, 182 Mehta, C. 46 men, decline of family wage 1, 17 Michael Page 95, 112 migrant workers: in China 144 – 5, 157 – 9; and class 18 – 19; families of 178; gender inequalities 18, 52; and labour markets 172; live-in caregivers 70 – 89; mandatory remittances 77; short-term jobs 63; in South Africa 118 – 19, 122; transnational 11 – 12, 13, 18, 178; see also agricultural labour; immigrant status Miles, R. 22 mining industry 118, 119 Mitchell, K. 181 Mitlacher, L. W. 115 mobility of labour: and market polarisation 9; noncompete clauses 185, 194 – 6; and professionals 2; restrictions 12, 19, 176 Moore, M. A. 46 Morocco 101 Moss, P. 46 multinational companies see transnational employment agencies Namibia 118, 119, 128 – 31, 133 – 5 Nannicini, T. 115 Nash, B. J. 46

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Index

national economies: classification of 98 – 106; comparisons of 94 – 114; global changes 1 – 4; recession 31, 32, 34, 35, 38 – 42; variety of temporary agency markets 94 – 8 nationality of migrant workers 11, 12 Nativel, C. 21 Naughton, B. 161 Netherlands 7, 8, 101 Neumark, D. 45 Newson, M. 91 New Zealand 99 nonstandard employment 2, 5, 9, 102, 166 – 8 nurses and agency work 72, 124 Nystrom, B. 115 occupational benefits 9, 61, 65, 154, 166, 172; social insurance 124, 154, 156, 157 Ono, Y. 46 Owens, R. 21, 180 Pan, Yi 161 Paquet, E. 200 Parreñas, R. S. 22 Parrott, Daniel 91; on temporary work in BC 20, 70 – 93 part-time employees 102, 166 Paton, C. 139 pay differential see wages Peck, Jamie 22, 23, 24, 46, 47, 68, 115, 116, 161, 181, 182, 200; on temporary work in US 20, 26 – 47 Peng, Xizhe 161 pensions 61, 65, 124, 172 permanent employees: as agency workers 171; decline of 31, 40 – 1; earnings of 6; in triangular employment 123 Philippines: bilateral agreements 79, 84; emigration policy 75 – 80; mandatory remittances 77, 78 – 9; as source of migrants 73, 75 Philippines Overseas Employment Office Administration (POEA) 71, 77 – 8, 79, 85, 88 Phillips, N. 23, 181 Picchio, A. 23 Pijpers, R. 23 Pineau, A. 201 Poland 7, 98, 106 – 11, 112 Pollard, D 181 Pollin, R. 46

Pratt, G. 91, 181 precarious work relationships: construction work in China 154 – 6; contingent work 5, 9, 26 – 30, 42 – 5; defined 5, 10 – 13; entrenchment in UK 63 – 6; lack of job protection 168; live-in caregivers 70 – 89; and migrant workers 156 – 8, 170 – 8; and social location 11, 12, 171, 188; and social reproduction 16 – 19, 178; and unfree labour 13 – 16 Prince George Nannies and Caregivers (PG Nannies) 82 – 3 Princen, T. 161 productivity and temporary workers 35, 44 – 5 professional jobs 2, 6, 152, 167, 173 P-Serv 152 Pun, Ngai 161 Qiao, Jian 160 Québec: employment contracts 194 – 7; job security 190 – 4; labour regulation 184 – 90, 197 – 8 race and work 6, 12, 72 Randstad 54, 95, 96, 151, 152 Razavi, S. 23, 91 recession: and agencies 31, 32, 34, 35; and recovery cycles 38 – 42 Recruitment and Employment Confederation (REC) 64, 66, 101, 102, 116 regulatory process: and agencies 8, 19 – 20; differences within labour market 102 – 3, 113; and labour market polarisation 9, 102; role in labour market 48, 97 – 8, 100 Ren, Yan 161 Renminwang 161 Rich, M. 46 Riphahn, R. T. 45 risk transfer: and agencies 6, 35, 38, 42; rebalancing of 178 – 9; standard model 1 Rissman, E. R. 45 Rittich, K. 23 Robert Walters 95, 112 Rodgers, G. 23 Rodrigez, R. M. 91 Roediger, D. 182 Rogaly, B. 182 Rogowski, R 68

Index Romero, J. 46 Rosemount, H. 161 Routh, R. 139 Routledge, P. 21 Roux, D. 201 Rubery, J. 23, 113, 116, 182 Salzman, H. 46 Sassen, S. 23 Satzewich, V. 23, 182 Schreft, S. L. 46 Schweitzer, M. 47 Scott, S. 182 seasonal workers see agricultural labour Segal, L. M. 47 self-employment 8, 166, 171 Shanghai Talents Intermediary Association 151, 152, 153, 162 Sharma, N. 23 Sheng, Yu 160 Shi, Hong 162 Shipman, J. 47 Shire, K. 115 Silber, J. M. 47 Silver, B. J. 23 Singh, A. 46 skilled labour see professional jobs Skrivankova, K. 23, 182 Slater, G. 21, 180 slavery, modern 13, 86, 129, 174 Smith, B. E. 21 social insurance: in China 154, 156, 157; in South Africa 124 social location and precarious work 11, 12 social reproduction: in China 158; concept 16 – 19; families of migrant workers 178; lack of integration of workers in UK 66; and live-in caregivers 70, 71, 89; and regulatory innovation 165, 168 social security benefits 61, 121, 153 Solinger, D. 162 Soskice, D. 115, 116 South Africa 118 – 20, 131 – 3, 136 – 7 Spain 52, 53 staffing companies see temporary employment agencies (TEAs) standard employment relationship (SER): attributes 1 – 2, 5, 166 – 8; decline of 40 – 1, 44 – 5; employer obligations 30; family wage 1, 17, 113, 166

215

Standing, G. 24, 47, 68, 139 Stasiulis, D. K. 90, 91 Stenning, A. 114 Stone, K. V. W. 47 Storrie, D. 24, 114, 116, 182 Strauss, Kendra 24, 162, 182; on agency work in UK 20, 164 – 83; on temporary work 1 – 25 strike action 118, 119, 125, 126 subcontracting 5; in China 155 – 6; and wage suppression 3 Sullivan, D. G. 45, 47 Supiot, A. 24, 182, 201 Sweden 53, 98, 99, 100, 101, 106 – 11, 113 Swider, S. 162 temporary agency work (TAW): in EU 48, 52 – 8; see also temporary employment agencies (TEAs) temporary agency workers: attributes 6 – 8, 16 – 20; as compared to employees 168; eroding ecomonic position 9, 42 – 5; impact of layoffs 34 – 5, 42, 191; lack of options 103 – 4; long-term implications 44 – 5; and period of assignment 52 – 3, 59 – 60, 63 – 4, 122; screening of 33; shift in function 31 – 2; and social location 11, 12, 171 – 2, 188; statistics 52, 171; strike in South Africa 119; in UK 62 – 6; wages 36 – 8 temporary employment agencies (TEAs): attributes 4 – 10; and business cycles 38 – 42; diversification 31; price-based competition 33 – 4, 44; profit of 6, 7, 110; role in labour market 28 – 30, 101 – 6; and strike in South Africa 119; suppression of wages 6, 13; see also transnational employment agencies temporary employment relationship (TER) 167, 174; see also employer/employee relationship temporary employment service (TES) see temporary employment agencies (TEAs) temporary foreign workers 73, 84, 85 – 8

216

Index

temporary staffing agencies (TSAs) see temporary employment agencies (TEAs) temporary staffing “industry” (TSI) see temporary employment agencies (TEAs) termination see job security Terry, W. C. 24 Thelen, K. 116 Theodore, Nik 23, 24, 46, 47, 68, 115, 116, 161, 181, 182, 200; on temporary work in US 20, 26 – 47 Theron, J. 139 Thompson, M. 91 Thorsén, Y. 116 Tigges, L. M. 47 Tilly, C. 46 Trades Union Congress (TUC) 59 – 60, 68, 182 trade unions: and agency workers 53, 102, 185, 186; lobbying of 10, 104, 106; strike action 118, 119, 125, 126; in UK 63, 64, 102; see also collective representation trafficking and people smuggling 13, 176 transnational employment agencies: abuses of 70 – 1, 84 – 5, 86, 89; avoidance of regulation 75, 79 – 80; in BC 71 – 5, 80 – 5; in China 143 – 4, 151 – 3; growth of largest 94 – 7; lobbying of 54, 104, 166; and local markets 97, 102; in Manitoba 85 – 9; role in different markets 94 – 8, 102 transnational migrant workers 11 – 12, 13, 18, 178 Treaty on the Functioning of the European Union (TFEU) 53, 55, 56 tripartite employment relationships 7 – 8, 26, 54, 55 – 6, 120, 168, 188 – 9 Tros, F. 69 Trudeau, G. 201 unemployment insurance 30, 154, 157 unfree labour: degrees of 14 – 16, 174 – 7, 185; new forms of 19; noncompete clauses 194 – 6; and precarious work 3, 12 – 14, 70, 137 – 8, 153 Union of Industrial and Employers Confederations of Europe (UNICE) 53 – 4, 69n.10

United Kingdom: agency workforce 6, 52, 53, 63, 101 – 2, 170 – 3; agency work regulation 62 – 6, 164 – 79; agricultural labour 164 – 5, 169 – 70, 172 – 3, 175 – 9; average hourly wages 65, 69n.16; economic classification of 99, 100, 102; and the European Directive 48, 56 – 66, 165 – 6, 168 – 9 United States: average hourly wages 36 – 8; business cycle changes 38 – 45; economic classification of 99, 100; growth of temporary jobs 26 – 36, 101 – 2; wage suppression 6, 33 – 4, 36 – 8 unpaid work 16 – 17, 71, 72, 168 user enterprise see client firms USG People 54, 95 Uys, N. 139 Vaes, T. 68 Valiani, S. 91 Vallée, Guylaine 182, 199, 200, 201; on temporary work in Québec 184 – 205 Vandenbrand, T. 68 Vedior 7, 112 Velluzzi, N. 22 Verge, P. 201 Vidal, M. 47 Vigna, P. 47 Vitils, K. 116 Vosko, L. 21, 24, 47, 68, 91, 139, 162, 180, 182, 200, 201 Wadensjö, E. 114 wages: family 1, 17; hours of work 81, 122, 178; nonpayment of 70, 123, 140n.9, 196 – 7; for overtime 41, 70, 196; pay differential 36, 38, 56, 65, 178; and short-term contracts 64 – 6; suppression of 6, 13, 33 – 4, 127; of temporary agency workers 36 – 8 Walby, S. 24 Walder, A. 162 Walwei, U. 116 Ward, Kevin 21, 23, 24, 45, 46, 68, 115, 116, 160, 180, 181; on distinctive national markets 20, 94 – 117 Webster, E. 139 welfare states: and labour markets 97, 99 – 103, 178; types of 100 – 2

Index Whitley, R. 116 Wilkinson, F. 200 Wills, J. 21, 24, 182 Wilthagen, T. 69 women: in China 144, 158; families of migrant workers 178; feminisation of labour 2, 18; live-in caregivers 70 – 89; and precarious work 2, 6, 52; and social reproduction 16 – 19 workers’ compensation 30, 154 working conditions: and labour intermediation 6; live-in caregivers 72 – 3; parity 138; regulation of 49, 61; and segmented workforce 65 workplace: of agency workers 125 – 6, 136; discipline 26, 157; and unionization 125, 186 worksite employers see client firms (user enterprise) Wright, M. 4, 24, 162

217

Wynn, Michael 68, 182; on EU regulatory process 20, 48 – 69 Xu, Feng 162; on work in China 20, 143 – 63 Xu, Yi 161 Xue, Hongli 162 Yang, Yansui 162 Yao, Yu 161 Yeates, N. 91 You, Jun 162 Yun, A. 140 Zaman, H. 73, 91 Zavella, P. 22 Zell, S. 91 Zhang, Jizheng 162 Zhang, Yuejin 162 Zhao, Jianguo 162 Zhao, Libo 162 Zhou 162 Zuo, Xuejin 163