A Strategic Approach to Regulating Unacceptable Forms of Work

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DOI	http://doi.org/10.1111/jols.12152
Published date	01 June 2019
Author	Deirdre McCann,Judy Fudge
Date	01 June 2019

JOURNAL OF LAW AND SOCIETY

VOLUME 46, NUMBER 2, JUNE 2019

ISSN: 0263-323X, pp. 271±301

A Strategic Approach to Regulating Unacceptable

Forms of Work

Deirdre McCann* and Judy Fudge**

Upgrading low-waged and insecure work is central to contemporary

labour and development initiatives, from the UN Sustainable Develop-

ment Goals to the United Kingdom `Taylor Review'. The International

Labour Organization's notion of unacceptable forms of work (UFW) is

a crucial contribution. Yet the regulatory frameworks that can effec-

tively address UFW are unclear. This article builds on a novel frame-

work ± the Multidimensional Model of UFW. Drawing on theoretical

literatures at the frontline of regulation scholarship, it proposes a

strategic approach to UFW regulation that supports development,

acknowledges the constrained resources of low-income countries, and

targets expansive and sustainable effects. Two key concepts are

identified: points of leverage and institutional dynamism. Globally-

prominent regulatory frameworks are assessed as a starting point for

mapping the strategic approach: the Mathadi Act of Maharashtra,

India; Uruguayan domestic work legislation; minimum wages in the

global North and South; and United Kingdom regulation of `zero-

hours contracts'.

271

*Durham Law School, Durham University, Palatine Centre, Stockton Road,

Durham DH1 3LE, England

deirdre.mccann@durham.ac.uk

** School of Labour Studies, McMaster University, 1280 Main Street West,

Hamilton, Ontario L8S 4M4, Canada

fudgej@mcmaster.ca

We are grateful for comments on earlier drafts by Laura Addati, Anita Amorim, Beate

Andrees, Simonetta Cavazza, Richard Cholewinski, Colin Fenwick, Horacio Guido,

Susan Hayter, Christian Hess, Richard Howard, Coen Kompier, Christiane Kuptsch,

Thetis Mangahas, Shengli Niu, Martin Oelz, Mustafa Hakki Ozel, Natalia Popova,

Manuela Tomei, and the ESRC Strategic Network on Unacceptable Forms of Work.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited.

ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)

What makes forms of work socially unacceptable? What modes of regulation

can eliminate unacceptable forms of work (UFW)? The United Nations

International Labour Organization (ILO) has made these questions a central

strand of its global policy agenda on its 2019 centenary.

Similar enquiries

motivate a range of pivotal national and supranational regulatory initiatives,

from th e Taylo r Revie w of cont empor ary wor king re latio ns

and

appointment of a Director of Labour Market Enforcement

in the United

Kingdom, to the EU Agency for Fundamental Rights (FRA) initiative on

severe labour exploitation in the EU,

to the inclusion of the `decent work

indicator' among the UN's Sustainable Development Goals.

Most policy makers and commentators would endorse the ILO's broad

definition of UFW as work performed in `conditions that deny fundamental

principles and rights at work, put at risk the lives, health, freedom, human

dignity and security of workers or keep households in conditions of extreme

poverty.'

Yet most would also agree that there is a need for `a more refined

understanding about the dimensions and descriptors of [UFW] . . . to guide

practical action.'

This article responds to the challenge of constructing an analytically

rigorous, theoretically-informed and policy-oriented conception of UFW. It

is animated by a research project on Legal Regulation of UFW

that

proposes a new framework for conceptualizing and addressing unacceptable

272

1 ILO, Towards the ILO Centenary: Realities, Renewal and Tripartite Commitment

(2013a). See, also, ILO, The Director-General's Programme and Budget Proposals

for 2014±15 (2013b) Governing Body (GB), 317th Session, Geneva, 6±28 March

2013 , GB. 317/ PFA/ 1, at ttp s:// www. ilo. org /gb/ GBSe ssi ons/ GB31 7/pf a/

WCMS_203480/lang±en/index.htm>; ILO, The Director-General's Programme

and Budget Proposals for 2018±19 (2017) GB, 329th Session, Geneva, 9±24

March 2017, GB.329/PFA/1, at

WCMS_542955/lang±en/index.htm>.

2 Department for Business, Energy and Industrial Strategy (BEIS), Good Work: The

Taylor Review of Modern Working Practices (2017).

3 See `Sir David Metcalf Named as the First Director of Labour Market Enforcement,'

at //www.gov .uk/gover nment/new s/sir-da vid-metca lf-named -as-the-f irst-

director-of-labour-market-enforcement>.

4 European Union Agency for Fundamental Rights, Severe Labour Exploitation:

Workers Moving Within or Into the European Union (2015).

5 SDG8, at g/sustainabledevelop ment/sustainable- development-

goals/>.

6 ILO, op. cit. (2013b), n. 1, para. 49.

7 ILO, Unacceptable Forms of Work (UFW): Results of a Delphi Survey (2015) 1.

8 See J. Fudge and D. McCann, Unacceptable Forms of Work: A Global and Com-

parative Study (2015), at ;

D. McCann and J. Fudge, `Unacceptable Forms of Work: A Multidimensional

Model' (2017) 156 International Labour Rev. 147; Decent Work Regulation Project,

at . A Network phase of the

UFW project was funded by an ESRC Global Challenges Research Fund Strategic

Network grant (ES/P0074651; 2017); see, further, D. McCann (ed.), Unacceptable

Forms of Work: Global Dialogue/Local Innovation (2018).

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work: the Multidimensional Model of UFW.

This model makes three vital

and novel contributions to the literatures on low-quality work and on labour

market regulation. First, unlike prevailing conceptions of `bad jobs,' vulner-

ability, or precarious work ± which are moulded primarily to the features and

needs of the economies of the global North ± the Multidimensional Model is

designed to be applicable to countries across the world, at widely-varying

levels of development. Second, the model is designed not merely to be

descriptive, but to be used as a rigorous diagnostic tool: to identify and

prioritize the forms of unacceptable work most prominent in each local

context. Finally, the Multidimensional Model has a novel and crucial

regulatory dimension.

The regulatory component of the Multidimensional Model is the subject

of this article. This element is unique in the available typologies of low-

quality work, not least in that it ensures that the model can be opera-

tionalized. It draws upon innovative theories at the frontline of the

interdisciplinary literature on labour regulation to propose a new strategic

approach to UFW regulation. The goal of the strategic approach is to support

the design and implementation of regulatory interventions that are tailored to

development objectives, suited to lower-income countries, and have the

broadest and most sustainable effects. The model therefore integrates local

actors, is directed at transforming the conditions that produce UFW, and is

attentive to the limited resources available for labour regulation in low-

income countries. To these ends, the model has a particular focus on the sites

and modes of legal intervention and emphasizes the design of legal

frameworks, strategies, and tools.

The article both builds upon and contributes to pivotal conceptual and

theoretical debates on the regulation of labour and, more broadly, effective

regulatory models and techniques.

It engages with a critical set of theories

of regulation: on the indeterminacy of regulatory outcomes, the role and

status of law in development, the legal treatment of precarious and non-

standard work, and the merits of a strategic stance (which aims to maximize

the use of finite resources towards effective regulatory outcomes). The

273

9 See, also, McCann and Fudge, id.

10 As illustrations of an extensive literature, G. Davidov and B. Langille (eds.),

Boundaries and Frontiers of Labour Law (2006); C. Arup et al., Labour Law and

Labour Market Regulation (2010); T. Tekle (ed.), Labour Law and Worker

Protection in Developing Countries (2010); M. Freedland and N. Kountouris, The

Legal Construction of Personal Work Relations (2011); S. Lee and D. McCann

(eds.), Regulating for Decent Work: New Directions in Labour Market Regulation

(2011); J. Fudge et al., Challenging the Legal Boundaries of Work Regulation

(2012); C. Costello and M. Freedland (eds.), Migrants at Work: Immigration and

Vulnerability in Labour Law (2014); D. McCann et al. (eds.), Creative Labour

Regulation: Indeterminacy and Protection in an Uncertain World (2014); S.

Marshall and C. Fenwick (eds.), Labour Regulation and Development: Socio-Legal

Perspectives (2016).

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strategic approach to UFW regulation traced in this article brings to bear

these diverse approaches upon the particular challenges of tackling unstable

and low-waged work. It seeks to meld pertinent elements of these contri-

butions to devise an approach that is tailored to the upgrading of UFW.

In doing so, the model adopts a socio-legal method, influenced by the

American legal realists, which begins with social relations and social activity

before proceeding to legal categories.

The starting point is the social

activities that are bound up in work relations rather than the existing legal

categories (`employee,' `worker,' `independent contractor', and so on) The

article therefore adopts a broad conception of labour market regulation that

operates beyond the conventional boundaries of labour law, and even of

legal regulation.

It also embraces the concept of `regulatory space', which

denotes that:

[R]egulatory power is not held solely by governments but is dispersed

throughout a number of bodies or groups such as firms . .. non-governmental

and supra-governmental agencies, standard-setting organisations, credit-rating

agencies, business and professional associations, trade unions, religious

organisations, courts, tribunals, peer groups and others.

Drawing on these insights, the article contends that successful regulatory

strategies must both engage with, and be internalized by, the social actors

whose behaviour is the subject of regulation. The strategic approach to UFW

contributes to the existing scholarship on experimentation in regulatory

design a particular emphasis on the need for a `ground-up' approach, which

begins with the realities of economic relations in the global North and South

and, from there, proceeds to design regulatory solutions. In this regard, the

Multidimensional Model ascribes a uniquely central role to local actors.

Local policy makers, stakeholders, researchers, and workers are empowered

to identify, prioritize, and address UFW in ways that are sensitive to local

political, economic, and social contexts. The model thereby offers a syn-

thesis of theoretical rigour and practical utility that is applicable to specific

regulatory interventions.

Part I of the article outlines the substantive and predictive aspects of the

Multidimensional Model, illustrating how it can be used to identify UFW

across a wide range of working arrangements and social and economic

contexts. Part II turns to the broader debates on labour-market regulation,

culling insights for the design and implementation of frameworks on UFW

regulation. Part III outlines crucial components of a strategic approach to

274

11 See, for example, H. Dagan, `Doctrinal Categories, Legal Realism, and the Rule of

Law' (2015) 163 University of Pennsylvania Law Rev. 1889.

12 R. Mitchell, Redefining Labour Law: New Perspectives on Teaching and Research

(2005); Arup et. al., op. cit., n. 10; Fudge et al., op. cit., n 10.

13 A. Freiberg, The Tools of Regulation (2010) 18±19. The term was first used in C.

Scott, `Analysing Regulatory Space: Fragmented Resources and Institutional

Design' (2001) Public Law 329.

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eliminating UFW. This approach is then further developed, in Part IV, by

identifying key illustrations of existing legal frameworks on unacceptable

work ± the Mathadi Act in Maharashtra, India; Uruguayan domestic work

legislation; minimum-wage legislation in both the global North and South;

and the United Kingdom ban on `exclusivity clauses' in zero-hours contracts.

These models are investigated as a starting point for mapping the range of

regulatory interventions that might embody a strategic approach to UFW

regulation. The article concludes by drawing on these illustrations to

elaborate upon how the principles that underpin the strategic approach to

UFW regulation might be manifested in concrete regulatory frameworks.

I. THE MULTIDIMENSIONAL MODEL OF UFW

The Multidimensional Model of UFW has been developed by identifying the

key academic and policy discourses that categorize central dimensions of

working life as either desirable or unacceptable. The aim was to investigate

the conceptions of unacceptability that are embedded in these literatures and

to draw on their insights to develop a rigorous and policy-oriented concep-

tion of UFW. Each of the discourses ± decent work,

good jobs,

pre-

carious work,

vulnerability,

informal work,

and forced labour

± was

275

14 ILO, Decent Work (1999); see, further, G. MacNaughton and D.F. Frey, `Decent

Work, Human Rights and the Development Goals' (2010) 7 Hastings Race and

Poverty Law J. 303.

15 For example, A. Kalleberg, Good Jobs, Bad Jobs: The Rise of Polarized and

Precarious Employment Systems in the United States, 1970s to 2000s (2011); P.

Findlay et al., `The Challenge of Job Quality' (2013) 66 Human Relations 441.

16 For example, L.F. Vosko, Temporary Work: The Gendered Rise of a Precarious

Employment Relationship (2000); L.F. Vosko, Managing the Margins: Gender,

Citizenship and the International Regulation of Precarious Employment (2010); J.

Fudge and R. Owens (eds.), Precarious Work, Women and the New Economy: The

Challenge to Legal Norms (2006); A. Kalleberg, `Job Quality and Precarious Work:

Clarifications, Controversies and Challenges' (2012) 39 Work and Occupations 427;

G. Standing, The Precariat: The New Dangerous Class (2011).

17 R. Saunders, Defining Vulnerability in the Labour Market (2003); K. Rittich,

Vulnerability at Work: Legal and Policy Issues in the New Economy (2004); J.

Fudge, `Beyond Vulnerable Workers? Towards a New Standard Employment

Relationship' (2005) 12 Cndn. Labour and Employment Law J. 145.

18 M.A. Chen, The Informal Economy: Definitions, Theories and Policies (2012); F.

CarreÂ and J. Heintz, `Toward a Common Framework for Informal Employment

Across Developed and Developing Countries' (2013) WEIGO Working Paper

(Statistics) No. 26.

19 For example, B. Anderson and B. Rogaly, Forced Labour and Migration to the UK

(2004); ILO, Eradication of Forced Labour (2007); ILO, The Cost of Coercion

(2009); K. Skrivankova, Between Decent Work and Forced Labour: Examining the

Continuum of Exploitation (2010); J. Allain et al., Forced Labour's Business Models

and Supply Chains (2013).

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determined to be insufficient on its own, yet crucial to developing a robust

concept of UFW.

The Multidimensional Model diverges from these earlier approaches by

shifting from relatively narrow foci, centred on a limited range of charac-

teristics, towards a more expansive scope, including by configuring un-

acceptability as a continuum. It, further, captures both the supply, demand,

and institutional features of labour markets that tend to be associated with

UFW, and the sites and features of effective intervention. The model

configures UFW to capture (i) the substantive dimensions that render work

unacceptable; (ii) the magnitude of the risks to which a worker is exposed;

and (iii) the sites and modes of effective intervention. Elements (i) and (ii),

summarized in this part, a re explored in more detail in a n earlier

contribution.

This article focuses on element (iii).

In each of its elements, the Multidimensional Model recognizes that the

nature and magnitude of UFW differ from country to country depending

upon factors such as levels of economic developmen t, political and

governance structures, the health of civil society, and the strength and

complexion of labour market institutions and the social partners. In light of

this complexity, local knowledge becomes critical to mapping the severity,

extent, and locations of UFW. The model activates this knowledge by

relying on local policy makers and researchers to map the incidence and

magnitude of UFW and to determine priorities for intervention. The actors

involved in this process are expected to include government ministries and

agencies, social partner organizations, and civil society groups that speak for

key constituencies. The Multidimensional Model is therefore a diagnostic

tool to be used by local actors to identify and to target UFW across a range of

economies and at different levels of development.

1. Substantive dimensions and indicators of UFW

The Multidimensional Model recognizes twelve substantive dimensions of

unacceptability (Table 1). It is more expansive than earlier discourses of

unacceptable work, which tend to centre primarily at the level of the job.

The model captures the range of dimensions of working life, including the

intersection of wa ged labour and communi ty life, social prote ction,

collective mechanisms, job content, and the legal architecture through

which workers identify and enforce their entitlements.

The Multidimensional Model is designed to be sufficiently flexible to take

account of the contingent nature of unacceptability while recognizing a core of

basic and universal human rights. Each of the twelve substantive dimensions is

276

20 McCann and Fudge, op. cit., n. 8.

21 For critiques of this literature, see R. Mun

Äoz de Bustillo et al., `E Pluribus Unum? A

Critical Review of Job Quality Indicators' (2009) Regulating for Decent Work

Conference, Geneva, Switzerland; Findlay et al., op. cit., n. 15.

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277

Table 1. The substantive dimensions of UFW

Dimension 1. Forced labour

* Worker subject to forced labour (including slavery, debt bondage,

trafficking in persons, forced prostitution, forced overtime)

Dimension 2. Health and safety

* Risk to health and wellbeing (physical and mental)

Dimension 3. Income

* Inadequate payment (too low to satisfy basic needs);

* Insecure payments (for example, wage arrears, irregular payments,

unjustified deductions, performance of unpaid work, illegitimate/excessive

recruitment fees)

Dimension 4. Security

* Day-labour (casual contracts, zero-hours contracts);

Insecure employment (no certainty of continuing employment, termination is

possible without a valid reason or without procedural or other protections);

No prospects for promotion;

No opportunities for skill development or training

Dimension 5. Working time

* Excessive weekly hours;

* Weekly rest of less than 24 hours;

* Insufficient daily rest/family/community time;

* Forced overtime;

* Insufficient hours (too few to satisfy basic needs);

* Unprotected night work (no health assessments, no capacity to transfer in

essential circumstances, no additional compensation);

* Paid annual vacation of less than 3 working weeks;

Unpredictable schedules;

Lack of influence over working hours (including the flexibility to deal with

family and community obligations);

Insufficient rest breaks during the working day

Dimension 6. Representation and voice mechanisms

* The right to freedom of association, the right to organize, and the right to

collective bargaining are not respected;

Lack of consultation, denial of participation, or failure to provide voice

mechanisms

Dimension 7. Child labour

* Child labour

(continues)

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278

Table 1 (continued)

Dimension 8. Social protection (health care, pension coverage, paid sick

leave, unemployment insurance)

*Social protection inadequate to satisfy basic needs

Dimension 9. Equality, human rights and dignity (irrespective of gender,

ethnicity, race, nationality, caste, family status, age, disability, religion,

sexual orientation, indigenous identity, HIV-status, trade union affiliation

and activities, political opinion, contractual status/working arrangements)

* Discrimination in working life (including access to education and

vocational training);

* Unequal pay for work of equal value;

* Abuse, violence, and harassment;

* Lack of respect for human rights, including the lack of respect for privacy

(for example, restrictions on transfer of earnings, privacy violated in

employer-provided housing, confiscation of possessions);

Lack of respect for national, ethnic, and social identities and cultures

Dimension 10. Legal protection

* Exclusion from legal protections;

* Inadequate implementation/enforcement of legal protections (ineffective

inspection systems, unspecified allocation of responsibilities in multilateral

relationships);

* Inadequate regulation of the recruitment or placement of workers by

employment agencies, labour providers, and so on;

Lack of information on legal rights;

No express contract

Dimension 11. Family and community life

* No entitlement to paid maternity leave of at least 14 weeks;

* No maternity protection;

No parental leave;

Work inhibits family o r community life (for exam ple, engagements

terminated because a worker has family responsibilities, no flexibility to

deal with family or community obligations)

Dimension 12. Work organization

Lack of control over the work process (task, decision, timing, method);

Excessive workload;

Intense physical and mental demands

Source: McCann and Fudge 2017

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categorized into a set of indicators that are designed to assist researchers and

policy makers to construct models of UFW suited to regional, national,

sectoral, or occupational contexts (Table 1). A number of the indicators mark

certain forms of work as entirely unacceptable and are, therefore, essential

features of all models of UFW (for example, forced labour, discrimination,

child labour). These fundamental indicators, starred in Table 1 (*), indicate

where the most urgent policy interventions are needed. Supplementary

indicators are also identified, which are assumed to be context-specific and to

be linked to levels of development. The Multidimensional Model is therefore a

contextual model, in that it can be adjusted to a range of settings. It is also

dynamic. The fundamental and supplementary indicators indicate a path for

national policy actors incrementally to adjust their economic and labour

policies towards the phased elimination of UFW.

2. The magnitude and complexion of UFW: a predictive methodology

The magnitude of UFW, encompassing both their severity and their extent in

the labour market, is contingent upon a complex range of socio-economic,

governance, and labour-market features. It is therefore critical that local

policy actors and researchers play a central role in mapping UFW and in

selecting intervention strategies.

As part of this process, the Multi-

dimensional Model has been designed for use in discerning patterns and

practices that are common to UFW: the groups of workers involved and the

locations in which these forms of work are found. This approach recognizes

that members of groups that are differentiated along status markers ± sex,

caste or migration status, for example ± are more likely to be found in UFW,

and that certain labour-market locations ± such as the agriculture or

hospitality sectors, or informal work ± are more likely to harbour UFW.

To this end, the model integrates a predictive methodology, which identi-

fies sets of demographic and ascriptive characteristics (`social location') and

labour-market locations (`social context') that are at risk of generating

UFW.

These dimensions are presented in Table 2. Social location identi-

fies the characteristics of workers who may disproportionately be found in

UFW: sex, ethnicity, age, family status, immigration status, linguistic group,

skill and ability levels, and so on.

Social context captures processes and

279

22 The Multidimensional Model is also designed readily to be mapped to common

features of regulatory schemata including ILO international labour standards; see

Fudge and McCann, op. cit., n. 8, pp. 48±51.

23 McCann and Fudge, op. cit., n. 8.

24 See, in particular Vosko, op. cit. (2010), n. 16.

25 See, for example, L. Lamphere et al., Sunbelt Working Mothers: Reconciling Family

and Factory (1993); ESOPE, Precarious Employment in Europe: A Comparative

Study of Labour Market Related Risk in Flexible Economies (2005); D. Arnold and

J.R. Bongiovi, `Precarious, Informali zing, and Flexible Work: Transforming

Concepts and Understandings' (2013) 57 Am. Behavioral Scientist 289.

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institutions that shape how different groups of workers are positioned in

local labour markets, such as regional and local product markets, sectors, and

governance regimes.

As with the substantive dimensions outlined above, the categories listed in

Table 2 are intended to be indicative and are expected to vary according to

local circumstances. These typologies can therefore be used by policy actors

and researchers to identify significant patterns and practices.

II. TOWARDS EFFECTIVE REGULATION

The most prominent labour-market policy discourses from the late 1980s to

the early 2000s posited an inescapable trade-off between protecting workers

and pricing them out of the labour market.

Recognition has since grown,

280

Table 2. Dimensions of social location and social context

Social location:

The interaction of social relations

(for example, gender, ethnicity, social

class) and legal and political

categories (for example, citizenship)

that shape the likelihood of workers'

involvement in UFW

Social context:

The labour market and social welfare

institutions and features of the

political economy that determine (i)

whether work is unacceptable and (ii)

the forms of unacceptable work

Gender

Ethnicity

National origin

Citizenship and immigration status

Social class

Age

Sexual orientation

Family status

Care obligations

Ability

Religion

Caste

Linguistic group

Sector

Occupation

Industry

Labour market

Product market

Firm size

Contractual form (for example,

temporary, part-time)

Labour market institutions (for

example, regulatory regime, union

density)

Social welfare institutions (for

example, social spending)

Geographical region

Levels of atypical employment

Levels of informality

Source: McCann and Fudge 2017

26 See, in particular, the literature associated with the World Bank's Doing Business

project, for example, World Bank, Doing Business 2004 (2005); K.E. Davis and

M.B. Kruse, `Taking the Measure of Law: The Case of the Doing Business Project'

(2007) 32 Law & Social Inquiry 1095; J. Berg and S. Cazes, `Policymaking Gone

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however, of labour regulation's potential role in development: providing

insurance against labour market risks, for example, smoothing market

access, overcoming information asymmetries and collective action problems,

and so on.

This evolving awareness is propelling a growing literature on

the design of effective labour regulation, which can be mined to devise and

assess regulatory strategies for UFW. Four literatures are of particular value

in this regard.

An innovative empirical research, first, has illustrated that the impacts of

labour regulations are difficult to predict a priori. This finding is captured in

Deakin and Sakar's notion of `regulatory indeterminacy.'

Lee and McCann

have extended this notion to capture uncertainty in the protective capacities

of labour law

: `the varying capacity of labour law frameworks to generate

protective outcomes.'

They identify three crucial variables that generate

protective indeterminacy: (i) the accelerating fragmentation of labour markets

into diverse forms of employment; (ii) complex interactions between labour

market institutions; and (iii) impediments to the effective implementation of

labour norms. Lee and McCann argue, usefully for UFW regulation, that

these three factors should shape the design of research and policy agendas on

effective legal regulation.

In part fuelled by these insights into the varying outcomes of labour law

reform projects, a second li terature is investigating the de mands of

integrating effective labour law regimes into development strategies. Deakin

and Marshall's recent reflection on labour market regulation in the least-

developed countries, for example, has generated valuable prescriptions for

`development-friendly' labour law reform.

These authors elaborate a set of

criteria for developing and reforming labour law regimes, suggesting that

regulatory frameworks should be compatible with economic incentives;

complement contiguous and overlapping regulatory domains (corporate

governance frameworks; finance, competition, and tax law, and so on); be

281

Awry: The Labor Market Regulations of the Doing Business Indicators' (2008) 29

Comparative Labor Law and Policy J. 349; S. Lee and D. McCann, `Measuring

Labour Mar ket Institu tions: Con ceptual and M ethodolog ical Quest ions on

``Working Hours Rigidity''' i n In Defence of Labour M arket Institutions:

Cultivating Justice in the Developing World, eds. J. Berg and D. Kucera (2008).

27 S. Deakin, `The Evidence-Based Case for Labour Regulation' in Lee and McCann

(eds.), op. cit., n. 10, p. 31.

28 S. Deakin and P. Sarkar, `Assessing the Long-Run Economic Impact of Labour Law

Systems: A Theoretical Reappraisal and Analysis of New Time Series Data' (2008)

Industrial Relations J. 453.

29 S. Lee and D. McCann, `Regulatory Indeterminacy and Protection in Contemporary

Labour Markets: Innovation in Research and Policy' in McCann et al. (eds.), op. cit.,

n. 10, p. 3.

30 id., p. 26.

31 S. Deakin and S. Marshall, `Checklist for Developing and Reforming Development

Friendly Labour Market Regulation' in Marshall and Fenwick (eds.), op. cit., n. 10,

pp. 318±20.

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`context dependent,' including by being compatible with levels of industrial-

ization and the mix of formal and informal work; support inclusive govern-

ance (encourage participative decision making and broader social and civil

dialogue in the formulation of rules); and be sensitive to institutional

capacities. The authors also stress that regulatory frameworks can support

the core functions of labour market regulation, of economic coordination,

risk distribution, demand management, democratization, and empowerment.

A third strand of analysis speculates on the novel regulatory frameworks

that can effectively regulate precarious and non-standard forms of work. In

this tradition, McCann and Murray's analysis of regulatory mechanisms to

facilitate the formalization of informal work

has built on a `reconstructive

labour law' approach, under which the central objective of regulatory inter-

ventions is `to build coherent and protected working relationships from

intermittent episodes of economic exchange.'

Their `framed flexibility'

model combines supports for standardized working-time norms with a

degree of flexibility in favour of both employers and workers. This model is

grounded in a number of principles that are relevant across the spectrum of

UFW and can be drawn on to shape the regulatory dimension of the

Multidimensional Model. The principle of unity of labour law systems ± that

labour law frameworks should be conceptualized as an integrated whole ±

prevents regulatory strategies on precarious work from undermining the

existing corpus of labour law (for example, by reducing the protection

available under generally-applicable frameworks).

Careful calibration of

regulatory techniques is also crucial, in particular to ensure the optimum

balance of legislated and collectively-bargained norms.

The principle of

innovative regulation recognizes that novel fields and sites of regulation

render the design of apt legal frameworks complex and uncertain, suggesting

that a degree of experimentation is required.

Regulatory settlements should

therefore be dynamic, in the sense of integrating processes of empirical

testing and incremental reform.

Particularly crucial, finally, is Weil's elaboration of a strategic approach

to labour inspection. This aims to maximize the effective use of resources

282

32 D. McCann and J. Murray, `Prompting Formalisation Through Labour Market

Regulation: A ``Framed Flexibility'' Model for Domestic Work' (2014) 43

Industrial Law J. 319.

33 D. McCann, `Equality Through Precarious Work Regulation: Lessons from the

Domestic Work Debates in Defence of the Standard Employment Relationship'

(2014) 10 International J. of Law in Context 507, at 508.

34 McCann and Murray, op. cit., n. 32, pp. 329±30.

35 id., pp. 333±4.

36 id., p. 335.

37 id. See, also, D.F. Frey, `A Diagnostic Methodology for Regulating Decent Work' in

Lee and McCann (eds.), op. cit., n. 10, p. 339; C. Fenwick et al., Labour and

Labour-Related Laws in Micro and Small Enterprises: Innovative Regulatory

Approaches (2007).

ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)

towards the greatest impact.

Weil identifies four criteria for strategic

enforcement. Prioritization requires labour inspectorates to rank workplaces

according to the probable severity of their legal contraventions and to target

the worst.

Deterrence seeks to prevent compliance techniques from drain-

ing state resources.

Instead, these techniques should cultivate a deterrent

effect that convinces firms to comply voluntarily, and should influence the

behaviour even of those employers unlikely to be inspected. Sustainability

supports practices that can reduce the incidence and magnitude of legal

infractions in the longer term, prompting enduring compliance.

The poten-

tial for systems-wide effects, finally, aims for outcomes that are systemic,

rather than exclusively local, in that they have geographic, industrial, and/or

product-market outcomes.

III. STRATEGIC REGULATION OF UFW

The frameworks for labour law reform identified in Part II can be drawn on

to develop the regulatory dimension of the Multidimensional Model.

Maintaining a focus on UFW, the ultimate objective is to propose lessons for

regulatory initiatives that are designed with an awareness of protective

indeterminacy, compatible with development, advance reconstructive labour

regulation, and embed a strategic approach. The range of these responses is

as yet unmapped. Some key components can be identified, however, prior to

deriving lessons from existing legal projects in Part IV.

The Multidimensional Model, fundamentally, is grounded in the concept of

regulatory indeterminacy, discussed in Part II, in that it starts from a

recognition that the influence of legal measures should not be assumed.

Regulatory models and strategies cannot be expected to be equally effective in

every setting. The quest, then, is to identify the most effectual forms of regula-

tion for UFW in each locality. This endeavour must take into account the key

variables of protective indeterminacy identified by Lee and McCann,

considering the extent to which UFW is associated with the regulation of

historically-atypical employment forms, investigating the optimum

interaction between regulatory instit utions, and identifying and testing

strategies to eliminate constraints on the implementation of legal standards.

The first task is to determine the forms of UFW that will be targeted.

Since manifestations of UFW ± and the means available to tackle them ±

283

38 D. Weil, `A Strategic Approach to Labour Inspection' (2008) 147 International

Labour Rev. 349.

39 id., p. 354.

40 id., pp. 354±5.

41 id., p. 355.

42 id., pp. 355±6.

43 Lee and McCann, op. cit., n. 29.

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vary with socio-economic context, the model assigns the allocation of

priorities to local policy actors. This method is in line with Marshall and

Deakin's call for inclusive governance, by expanding upon the constituen-

cies conventionally involved in decision making on regulatory design to

elicit an authentic and wide-ranging social dialogue. It also reflects Weil's

sustainability principle, taken in this context to require the activation of

labour market actors to build their capacities in the longer term and to

incentivize key players such as lead firms.

Another of Weil's strategic principles ± prioritization ± is adapted to

suggest that policy makers should target the most egregious manifestations

of UFW. This principle is already latent in the Multidimensional Model. As

outlined in Part I, the substantive dimensions and indicators of unaccept-

ability, in combination with the predictive methodology, can be used by

local actors to determine which working relations should be categorized as

UFW, their magnitude and concentration. The UFW indicators, further, are

designed to support a dynamic strategy that involves a sequencing of

interventions. Where forced labour is present, for example, it is an urgent site

of intervention. Equally, regulation should immediately target the worst

forms of child labour.

Yet, an effective regulatory strategy cannot be centred on responding to

egregious incidences of UFW on an ad hoc basis. As Weil has observed,

`[e]mployer practices in the workplace are an outgrowth of broader organi-

sational policies and practices, often driven (implicitly or explicitly) by

competitive strategies or forces.'

Strategic regulation of UFW aims to

transform the conditions that produce UFW, while also determining where to

target initiatives to ensure the maximum impact of the available resources.

These objectives are relevant not only to determining where to intervene, but

also to the modes of intervention. In this regard, the Multidimensional Model

places particular emphasis on the design of legal frameworks, strategies, and

tools. The range of feasible mechanisms for the strategic regulation of UFW

requires empirical investigation.

At this stage, however, two key concepts

can be proposed. Both are targeted at achieving systemic effects, the first on

sites of intervention, the second on regulatory design.

1. Points of leverage

To identify effective targets of intervention, the Multidimensional Model

employs the notion of `points of leverage'. Associated with systems theory

and originally identified by Meadows,

points of leverage are the sites in

284

44 Weil, op. cit., n. 38.

45 Research agendas on the empirical investigation of UFW regulation have been

Council Strategic Network on Legal Regulation of Unacceptable Forms of Work

(2017) (ES/P0074651).

46 D. Meadows, Leverage Points: Places to Intervene in a System (1999).

ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)

complex systems at which `small, well-focused actions can sometimes pro-

duce significant, enduring improvements.'

Labour regulation scholarship

has been enriched by systems theory, crucially by being pushed to acknow-

ledge limits on the potential of legal regulation to reform labour markets.

The account of legal systems as autonomous social systems, partially

detached from the economic and political spheres (`operational closure'), has

prompted scholars to recognize that labour regulation is in part determined

by `the internal discourses and processes of law'.

In consequence, law's

potency cannot be assumed. These insights have prompted labour regulation

literatures to attend to the interdependency of legal regulation and self-

regulation of other systems.

In this dimension, systems theory has elicited

a degree of apprehension for the normative goals of labour regulation due to

a tendency to downplay the role of the state, in particular with respect to

regulation in low-income countries.

Yet the resonance of the notion of points of leverage ± in particular, to

reflect upon apt entry points for effective regulation ± has been neglected.

Meadow's elaboration of leverage points has been influential in the field of

sustainable development.

In the study of labour markets, however, the

concept is as yet nascent. Niforou has investigated leverage points in global

285

47 P.M. Senge, The Fifth Discipline : The Art and Practice of t he Learning

Organization (2006) 64, cited in N.C. Nguyen and O.J.H. Bosch, `A Systems

Thinking Approach to Identify Leverage Points for Sustainability: A Case Study in

the Cat Ba Biosphere Reserve, Vietnam' (2013) 30 Systems Research and

Behavioral Science 104, at 110.

48 R. Rogowski and T. Wilthagen (eds.), Reflexive Labour Law. Studies in Industrial

Relations and Employment Regulation (1994); S. Deakin and F. Wilkinson, The

Law of the Labour Market: Industrialization, Employment and Legal Evolution

(2005); R. Rogowski, Reflexive Labour Law in the World Society (2013); S. Deakin,

`Addressing Labour Market Segmentation: The Role of Labour Law' (2013) ILO

Governance and Tripartism Department, Working Paper No. 52, 5.

49 Deakin, id.

50 R. Rogowski, `Industrial Relations, Labour Conflict Resolution and Reflexive

Labour Law' in Rogowski and Wilthagen (eds.), op. cit., n. 48; Deakin, id.;

Rogowski, op. cit., n. 48.

51 K. Kolben, `Transnational Labor Regulation and the Limits of Governance' (2011)

12 Theoretical Inquiries in Law 403, at 433, calling for labour governance literatures

to focus on the development of state capacity.

52 Leverage points have been used to design sustainable development strategies for the

Biosphere, see Nguyen and Bosch, op. cit., n. 47; M. Keegan and N. Nguyen,

`Systems Thinking, Rural Development and Food Security: Key Leverage Points for

Australia's Regional Development and Population Policy' (2001) 1 Migration

Australia 1; and for agribusiness in Africa, see K.E. Banson et al., `A Systems

Thinking Approach to Address the Complexity of Agribusiness for Sustainable

Development in Africa' (2015) 32 Systems Research and Behavioural Science 672.

In legal scholarship, an early contribution by Levi called for the identification of

`pressures points' at which to deploy legal doctrine towards solving the housing

problems of the poor: J.H. Levi, `Focal Leverage Points in Problems Relating to

Real Property' (1966) 66 Columbia Law Rev. 276.

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value-chains that can be capitalized on by labour actors to improve working

conditions, for example, lead firm Corporate Social Responsibility codes,

long-term relationships with suppliers, local union or NGO presence.

And

Doellgast et al., reflecting on the challenges of organizing call-centre

workers, have elaborated on the range of leverage points for collective action

that are offered by European states' diverse labour market institutions and

that vary with differences in the role of the state or formal bargaining

rights.

Points of leverage have not, however, been examined as they are

present across broader regulatory frameworks or with a focus on regulating

precarious work across an economy.

The Multidimensional Model configures leverage points as crucial to the

strategic regulation of UFW. The contention is that they are particularly

critical in contexts in which the resources available to curb labour market

disadvantage are profoundly constrained. It is expected that points of

leverage will be found at different levels: national, regional, industrial,

sectoral, and so on. They can be expected to include, for example, the

presence of lead firms that have sunk costs in a specific market, or of

workers' organizations that have the potential to assist to bring order to

chaotic labour markets.

Yet, it is not possible to predict apt points of

leverage a priori. For this reason, under the Multidimensional Model they are

again to be identified by local actors, who are familiar with local regulatory

and institutional frameworks. Examples of leverage points that have been

identified and capitaliz ed upon are highlighted in the di scussion of

illustrative regulatory frameworks in Part IV below, in relation to the

regulation of Mathadi workers, domestic work in Uruguay and, with less

success, the regulation of `zero-hours contracts' in the United Kingdom.

2. Institutional dynamism

The second key concept in the regulation of UFW is `institutional dyna-

mism.' This notion has been proposed by Lee and McCann to account for the

capacity of legal frameworks to operate beyond their formal parameters.

Institutional dynamism, first, captures the influence of labour law norms

beyond their formal reach (`external dynamism').

In this form, it embraces

processes through which labour norms have effects in informal settings

(shaping norms of social behaviour, influencing working relations through

286

53 C. Nif orou , `La bour L ever age in G lob al Val ue Cha ins: T he Rol e of

Interdependencies and Multi-level Dynamics (2015) 130 J. of Business Ethics 301.

54 V. Doellgast et al., `Introduction: Institutional Chang e and Labour Market

Segmentation in European Call Centres' (2009) 15 European J. of Industrial

Relations 349.

55 See, further, C.J. Cranford et al., Self-Employed Workers Organize: Law, Policy and

Unions (2005); Weil, op. cit., n. 38.

56 Lee and McCann, op. cit., n. 29, p. 3.

57 id., p. 13.

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awareness of statutory standards, and so on). Institutional dynamism also

captures the capacity of regulatory regimes to host interactions between a

range of institutions (`internal dynamism').

The notion of institutional dynamism, then, is attentive to the convergence

of labour and development objectives that is captured in Marshall and

Deakin's `development-friendly' labour law model,

and in particular to the

interaction of informal and formal forms of labour. It also embodies the

insights of McCann and Murray's reconstructive labour law model

attending to the interaction of regulatory mechanisms. These dynamics can

be absorbed and elaborated to advance UFW regulation. In this context,

policy actors are expected to remain alert to the dynamic capacities of labour

regulation in order to trigger and to magnify systemic effects. Institutional

dynamism has particular resonance for the strategic regulation of UFW,

especially in low-income settings, in that it extends the effects of legislated

standards without costly investments in labour inspection and enforcement.

This benefit is illustrated by the discussion of institutional dynamism in

minimum-wage laws in Part IV.

IV. STRATEGIC REGULATION IN ACTION: TARGETING

UNACCEPTABLE FORMS OF WORK

Increasingly, regulatory initiatives are being devised that specifically target

UFW. This Part selects key illustrations that are prominent in the global

literature on effective labour regulation. It returns to these initiatives,

drawing on the priorities and insights of the strategic regulation approach to

reassess their contributions and effectiveness. The aim is to illustrate the

value of the strategic approach in assessing UFW regulation and to derive

insights into the range of interventions that this approach might support.

Four regulatory initiatives are evaluated. Three ± regulatory frameworks on

Mathadi work in Maharashtra, India, domestic work in Uruguay, and mini-

mum wages in the global North and South ± are conceptualized as

contrasting interventions that have successfully targeted and transformed

UFW by embodying elements of the strategic approach. The final illustration

± recent legislation on `zero-hours contracts' in the United Kingdom ± is

included to illustrate the failure of a regulatory measure to address the range

of dimensions that make a form of work unacceptable or to ensure effective

enforcement and to propose other options that are likely to be more fruitful.

287

58 id.

59 Deakin and Marshall, op. cit., n. 31.

60 id.

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1. Mathadi workers: tripartite regulation of informal work

The Mathadi Act, 1969

targets Mathadi workers: head-load carriers who

work for transport companies and retail merchants in ports, docks, market

yards, and wholesale markets in the state of Maharashtra in India.

This

work is physically demanding and takes place in challenging outdoor

conditions. Prior to the Act, Mathadi work was profoundly insecure: a form

of casual day labour, it was irregular and without fixed wages, overtime

payments, or holiday or leave entitlements. Mathadi work exemplified an

unacceptable form of informal employment: workers fell outside the scope

of social protection and had very limited access to medical care.

The Mathadi Act regulates the engagement and conditions of Mathadi

workers as well as providing social protection and access to medical

services. To do so, it established a tripartite Mathadi Board for each district

in the state, which is composed of representatives of workers, labour-users,

and the government. The Boards directly intervene in the labour market by

acting as the exclusive labour intermediary for the hiring of Mathadi

workers. To reduce unemployment, the Boards limit the number of workers

they register. They also set the wage rate and social security/benefit levy that

the labour-user must pay. The Act requires workers and users to register with

a Board, which receives the workers' wages and disperses them according to

hours worked. The Boards also administer pension funds and workers'

compensation as well as providing medical care and educational assistance

to workers and their families.

The Mathadi Act does not directly address the insecurity of what still

remains a form of casual work. Yet it sets wages at a level that provide a

living wage, and the workers and their families have access to social

protection and health care.

The Act has therefore been successful in

formalizing Mathadi work, increasing wages, lifting workers and their

families out of poverty, and providing insurance against a range of risks.

The Mathadi Act can also be configured as a pioneering illustration of the

strategic regulation of UFW. It illustrates key features of the strategic

regulation approach. Centrally, it has prioritized an UFW for intervention.

This regulatory model, further, demonstrates the necessary awareness of

regulatory techniques. The tripartite configuration of the Mathadi Boards has

stimulated institutional dynamism in its internal form, by mobilizing labour-

market actors as partners in regulation, promoting social dialogue, and

288

61 Maharashtra Mathadi Hamal and other Manual Workers (Regulation of Employ-

ment and Welfare) Act, 1969.

62 This discussion draws on R. Agarwala, Informal Labour, Formal Politics and

Dignified Discontent in India (2013) and S. Marshall, `How Does Institutional

Change Occur? Two Strategies for Reforming the Scope of Labour Law' (2014) 43

Industrial Law J. 286.

63 Agarwala, id., p. 53.

64 Marshall, op. cit., n. 62, p. 310.

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developing the capacity of workers to organize. The point of leverage was

the intersecting interests of unions and employers. Despite the inability of

Mathadi workers' unions to institutionalize collective bargaining, they were

sufficiently strong politically and economically to secure the new form of

regulation. The legislation therefore leveraged the ability of unions to

organize Mathadi workers, and effective worker representation has since

been critical to the Act's success. Crucial also was the desire of labour-users

to reform a chaotic labour market, to formalize Mathadi work, and to

eradicate its most unacceptable features.

The regime is development-friendly, in that it is sensitive to institutional

capacities. Without relying on costly labour inspection strategies, it has had a

deterrent effect, successfully dissuading labour-users from reverting to

unacceptable practices. The regime has also been sustainable. Over the last

decade, union disunity and decline have weakened the effectiveness of some

Boards and, as a result, a small proportion of Mathadi work now operates

informally.

Yet, overall, the regulatory regime has been a success. Indeed,

it has had system-wide effects, in that the Mathadi Act model has been

adapted for other groups of informal workers, including transport workers in

Kerala and bidi workers in Gujarat and Maharashtra.

The Mathadi Act, then, provides a model of tripartite regulation of

informal employment in sectors in which capital is not mobile, but rather

rooted: the work takes place in a fixed location, and the relationship between

the workers and labour-users is direct.

The framework indicates that, if

designed properly, regulation that targets low-paid, unsafe, and insecure

informal employment can contribute to the elimination of UFW by improv-

ing wages, increasing security, and providing access to social protection and

to medical assistance. This form of regulation also has broader collective

effects, promoting social dialogue, mobilizing labour-market actors as

partners in regulation, and developing the capacity of workers to organize.

2. Domestic workers in Uruguay: extending traditional techniques

An alternative to the Mathadi Act's model of UFW regulation ± a devoted

regulatory scheme ± is to expand the coverage of generally-applicable legis-

lated standards to previously excluded groups. The regulation of domestic

work in Uruguay is a leading example.

Domestic work is a significant

289

65 Agarwala, op. cit., n. 62, p. 160.

66 Marshall, op. cit., n. 62, p. 311.

67 id., p. 312.

68 This discussion draws on D. Budlender, `Informal Workers and Collective Bargain-

ing: Five Case Studies' (2013) WIEGO Organizing Brief No. 9, at

wiego. org/si tes/wie go.org /files/ public ations/ files/ Budlend er-Info rmal-W orkers-

Collective-Bargaining-WIEGO-OB9.pdf>; M.R. Goldsmith, Collective Bargaining

and Domestic Workers in Uruguay (2013), at

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source of employment in Uruguay, particularly for women.

Domestic

workers have long been entitled to a range of social security benefits ±

disability, old age and survivor pensions (since 1942), maternity benefits and

family allowance (since 1980), medical coverage and sick pay (since 1984) ±

and also to a minimum wage (since 1990). In 2006, however, legislation was

enacted to extend to domestic workers the labour and social security rights

already available to other workers.

This law mandated rights that include a

minimum working age of 18 years and rights to an eight-hour day and 44-hour

week, daily rest periods and rest breaks, and a 36-hour weekly rest, while a

2007 Decree added overtime pay, paid sick leave, and a right to food and

lodging for live-in workers.

These reforms also introduced a structure for tripartite negotiation. In

2008, a negotiating forum specifically for the domestic service sector was

established as part of the Wages Council of Uruguay. The Domestic Work

Sector of the Council is composed of representatives from the Ministry of

Labour an d Social S ecurity, t he Sindic ato U

Ânico de Tra bajador as

Dome

Âsticas (SUTD) ± the only union that represents domestic workers ±

and the association for the employers of domestic workers, the Liga de Amas

de Casa (LACCU). The Domestic Work Sector negotiates collective agree-

ments and has secured wage increases, work clothes and equipment, a

seniority bonus, additional compensation for night work, and a paid holiday

that is designated as Domestic Workers' Day. The parties have also agreed to

comply with international labour standards on freedom of association and

collective bargaining.

Like the Mathadi Act, the Uruguayan domestic work regime can be

assessed through the lens of strategic regulation of UFW. In this regard, it

meets the prioritization criterion by centring on a marginalized form of work

that was previously excluded from legal protection. The points of leverage

for this intervention were both national and sectoral: extensive legislated

labour rights and the presence of both a domestic workers' union ± a single,

strong membership-based organization ± and an employers' organization.

Also in line with the strategic approach, the regulatory framework attends to

the strengths of different regulatory modes. Centrally, the framework for

290

files/resour ces/files/Gold smith-Collect ive-Bargaining -Uruguay-ISBN .pdf>; ILO,

Domestic Workers Across the World: Global and Regional Statistics and the

Extent of Legal Protection (2013).

69 Between 2006 and 2010, the number of persons employed in domestic work in

Uruguay increased from 105,572 to 120,164. Almost 99 per cent of all domestic

workers are women and they disproportionately identify as black or of African

ancestry: Goldsmith, id., pp. 3, 5.

70 Law 18.065.

71 In addition to defining the terms of Law 18.065, Decree 224/007 explicitly excluded

rural domestic service personnel (domestic workers who are employed by the

owners of farms and ranches).

72 Goldsmith, op. cit., n. 68, p. 11.

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tripartite negotiation has been the key to securing significant wage increases.

The tripartite Wage Council leveraged the social partners in the sector and

the existing labour law framework. It was able to formalize and strengthen

the representative bodies, and tripartite negotiations enabled the government

and social partners to tailor standard labour law entitlements to domestic

workers through collective agreements.

The framework also embodies McCann and Murray's principle of inno-

vative regulation, by incorporating novel and experimental approaches to

implementation.

The Banco de Previsio

Ân Social (BPS, Social Security

Institute) mounted a publicity campaign to raise awareness about domestic

workers' legal rights, and to boost social security registration, in which

inventive techniques were used. These included information pamphlets

designed as doorknob tags for employers' homes, which announced that

`[t]he domestic worker in this house is enrolled in the BPS'. Television

adverts promoted domestic workers' rights and socio-dramas were aired on

the public transport system. Inspection strategies were also innovative.

Labour inspectors visited private homes to determine whether domestic

workers were registered for social security. They requested documents but

did not enter the households. Rather than inspection in its traditional form ±

centred primarily on sanctioning employers ± the inspectors used their visits

as an opportunity to educate employers about their obligations and about

workers' rights, and to encourage them to comply with the law.

The Uruguayan domestic work regime, finally, meets the sustainability

criterion. Since 2006, the number of domestic workers contributing to the

BPS has increased by 45.6 per cent.

Further expansion, though, and

elevation towards systems-wide effects,

seem more problematic. The

intervention appears to have reached a plateau in formalizing domestic work:

the level of social security coverage remains around 40 per cent and there are

signs that employers are adopting strategies to avoid compliance.

3. Institutional dynamism: minimum wage regulation in developing and

advanced economies

Institutional dynamism, outlined in Part III, captures the emphasis of the

Multidimensional Model on the design of legal regimes and strategies. This

priority is substantiated by the research that points to elements of regulatory

design and the strategies of labour market actors that have the potential to

improve UFW. Institutional dynamism is particularly visible in research

findings on the operation of minimum wage regulation in both developing

291

73 id.

74 id.

75 On domestic work regulation as a gateway to formalization, see McCann and

Murray, op. cit., n. 32.

76 Goldsmith, op. cit., n. 68, p. 20.

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countries and advanced industrialized economies.

In this regulatory arena,

it is present in both its external and internal forms. External dynamism ± the

influence of labour laws beyond their formal scope ± is highlighted in

research that is tracking the influence of minimum wages in informal

settings.

This evolving literature confirms that minimum wages can exer-

cise an influence ± `lighthouse effects' ± on wages in informal employment.

Groisman, for example, has investigated the sustained commitment of

successive Argentinian governments to a national minimum wage, finding

that the national Employment Contract Law (Ley de Contrato de Trabajo)

has had a substantial impact on the wages of informal workers.

The minimum wage also provides a potent illustration of the internal

dimension of institutional dynamism: the capacity of regulatory regimes to

host interactions between a range of institutions. The literature underscores

the protective outcomes that can be generated for workers. In Europe,

Grimshaw et al. have identified `ripple effects,' through which minimum

wage increases influence wages above the minimum.

These effects can be

leveraged to raise wages in low-pay sectors through the interaction of

legislative and collective bargaining regimes. Strong collective bargaining

regimes were found to bolster the effects of minimum-wage legislation,

improving pay equity through the impact on low-waged employment, gender

pay inequality, and wage compression in the lower half of the wage

structure.

The authors concluded that strong ± dual or inclusive

industrial relations systems support the higher-value minimum wages that

enhance pay equity.

Ripple effects of minimum wages have also been found in low-income

settings. These effects can be substantial if the minimum wage ± and espe-

cially the magnitude of an increase ± is used by workers' organizations as a

basis for wage negotiation. This strategy has been successfully developed by

trade unions in a number of Asian countries, including the Philippines,

China, and Viet Nam.

In these contexts, workers who already earn more

292

77 Lee and McCann, op. cit., n. 29.

See, for example, S. Lemos, `Minimum Wage Effects in a Developing Country'

(2009) 16 Labour Economics 224; T. Boeri et al., `The Lighthouse Effect and Beyond'

(2011) 57 Rev. of Income and Wealth S54; T. Dinkelman and V. Ranchod, `Evidence

on the Impact of Minimum Wage Laws in an Informal Sector: Domestic Workers in

South Africa' (2012) 99 J. of Development Economics 27; F. Groisman, `Employ-

ment, Inequality and Minimum Wages in Argentina' in McCann et al., op. cit., n. 10.

79 Law No. 20.744.

80 Groisman, op. cit., n. 78.

81 D. Grimshaw et al., `The Pay Equity Effects of Minimum Wages: A Comparative

Industrial Relations Approach' in McCann et al. (eds.), op. cit., n. 10, p. 126.

82 See, also, J. Rubery and D. Grimshaw, `Gender and the Minimum Wage' in Lee and

McCann (eds.), op. cit., n. 10, p. 226.

83 D. Gallie (ed.), Employment Regimes and the Quality of Work (2007).

84 S. Lee and S. Gerecke, `Regulatory Indeterminacy and Institutional Design in

Minimum Wages: Decentralization, Coordination, and Politics in Asian Minimum

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than the new minimum wage rate have used it as a benchmark for their wage

demands.

This evolving body of research, then, points to a significant role for

institutional dynamism in efforts to buttress wage laws, and potentially other

labour standards, to the benefit of workers in UFW.

It suggests integrating

institu tional dy namism in to the plan ning and de sign of reg ulatory

frameworks. It also showcases to labour-market actors strategies that can

strengthen and extend regulatory frameworks.

The minimum wage, first,

can be integrated into formalization and poverty alleviation strategies in low-

income countries. Rather than assuming an ignorance or irrelevance of

formal norms in informal settings, policy-makers would recognize the

potential of formal rules to have dynamic effects. The modes through which

these effects operate, however, is not entirely clear; further research is

needed. Elements of the research, for example, point to the minimum wage

operating as a reference wage in the informal sector, and serving as a basis

for wage determination.

Another strand of the literature is revealing

relatively wi despread aware ness of legisla tive standards i n informal

settings.

It may also be that fashioning devoted legislation for sections of the

economy that are characterized as informal could be more potent than

conventionally assumed. Dinkelman and Ranchod have investigated the

introduction of a minimum wage into the South African domestic work

sector in 2002.

They note that the conventional mechanisms of state

enforcement were largely irrelevant in this setting. Yet the legislation

successfully achieved large increases in domestic workers' wages: as much

as 13±15 per cent for workers in provinces in which the pre-law median

wage was below the minimum. It therefore embodies the strategic approach

to UFW regulation: an economical intervention with strong deterrent effects.

As Dinkelman and Ranchod conclude, `labour market regulation in an

informal sector of considerable importance can have a real and immediate

impact, even with very limited monitoring and enforcement.'

Turning to internal dynamism, interrelationships among labour market

institutions can be integrated into both regulatory design and actor strategies.

There is a case for strengthening and extending collective bargaining

institutions, in particular in low-income settings. New strategies can also be

293

Wages' (2013), paper presented at the 3rd Regulating for Decent Work Conference,

Geneva.

85 Lee and McCann, op. cit., n. 29.

86 id.

87 Groisman, op. cit., n. 78.

88 S. Lee and D. McCann, `The Impact of Labour Regulations: Measuring the Effec-

tiveness of Labour Norms in a Developing Country' in Lee and McCann (eds.), op.

cit., n. 10, p. 291.

89 Dinkelman and Ranchod, op. cit., n. 78.

90 id., p. 41.

ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)

adopted by collective bargaining actors, for example, to heighten pay equity

outcomes. Grimshaw et al.'s findings challenge bargaining actors to fashion

explicit pay equity strategies,

the most convincing results being likely

where bargaining outcomes peg a sectoral minimum wage or the entire wage

grid to increases in the minimum wage.

4. The resurgence of day labour in industrialized countries: `zero-hours

contracts' in the United Kingdom

In industrialized countries, an evolving casualization of working arrange-

ments has surfaced in the debates on labour market regulation. The concern

is that certain forms of work are beyond the reach of labour law.

A key

illustration is the United Kingdom debate on the regulation of zero-hours

contracts (ZHCs): working arrangements ± also characterized as `casual,'

`on-call,' or `on-demand' ± in which individuals are requested to work as

and when required without guaranteed hours or income. There is widespread

concern that zero-hours work is increasing. The Office for National

Statistics (ONS) estimates that there are 1.7 million `no guaranteed hours

contracts' (NGHCs)

in the United Kingdom economy ± about 6 per cent

of all employment contracts.

NGHCs are also concentrated among groups

that encounter broader labour market disadvantage, including women and

young workers.

The available evidence on the conditions of zero-hours

work suggests a profoundly disadvantageous working experience for many.

The data highl ights working -time insecu rity: insuffi cient hours and

substantial variations (short notice of schedules, for example, or unexpected

changes).

There is also some evidence that wages in ZHCs are a matter of

concern.

These disadvantages are shaped and intensified by the United Kingdom

labour law framework, which has enduring problems in conceptualizing

294

91 See, also, R. Freeman, `The Minimum Wage as a Redistributive Tool' (1996) 106

Economic J. 639.

92 On the informalization of formal jobs more broadly, see D. McCann, `Informalisa-

tion in International Labour Regulation Policy: Profiles of an Unravelling' in Re-

Imagining Labour Law For Development: Informal Work in the Global North and

South, ed. D. Ashiagbor (2019).

93 This definition is used in the Office for National Statistics (ONS) business survey:

ONS, Contracts that do not Guarantee a Minimum Number of Hours (2016) 2.

94 id., p. 4.

95 United Kingdom Labour Force Survey (LFS) data: ONS, People in Employment on

a Zero-Hours Contract (2017) 6±7.

96 ONS, id., pp. 8±10, Fig. 8; TUC, Casualisation and Low Pay (2014) 27; Chartered

Institute of Personnel and Development, Zero Hours Contracts: Myth and Reality

(2013). See, also, A. Wood, `Flexible scheduling, degradation of job quality and

barriers to collective voice' (2016) 69 Human Relations 1989.

97 TUC, id., pp. 18±23, 25.

ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)

casual work.

Central is the complexity of determining the legal identity of

casual work and the related constraints on the coverage of the law. Key

employment protections are attached to qualifying periods, most signifi-

cantly rights to protection from unfair dismissal and redundancy payments

(two-year qualifying periods)

and to parental leave (26 weeks).

100

Workers

must have a contract of employment across a qualifying period, with

interruptions of a week or more breaking continuity.

101

In identifying the

contract of employment, the courts require `mutuality of obligation': a

continuing obligation on the hirer to offer work and on the worker to accept

it.

102

Yet the courts generally hold that an employment contract exists only

during periods in which individuals are engaged in a stint of work.

103

There

is no mutuality of obligation ± and therefore no contract of employment ±

between engagements. This continuity requirement excludes zero-hours

workers from employment rights that are attached to qualifying periods,

even where they have worked for the same hirer for a number of years.

Recently, however, the United Kingdom government has embraced a new

regulatory approach to ZHCs, namely, specific regulation. This strategy has

centred on the use of exclusivity clauses: contractual clauses that purport to

prohibit zero-hours workers from working for another hirer.

104

In 2015, the

United Kingdom government banned these clauses.

105

This ban meets the

Multidimensional Model's prioritization criterion by targeting UFW. Casual

work can also be conceptualized as a point of leverage for broader reform: at

295

98 G. Pitt, `Law, Fact and Casual Workers' (1985) 101 Law Q. Rev. 217; S. Fredman,

`Labour Law in Flux: The Changing Composition of the Workforce' (1997) 26

Industrial Law J. 337; B. Burchell et al., The Employment Status of Individuals in

Non-Standard Employment (1999); H. Collins, `Employment Rights of Casual

Workers' (2000) 29 Industrial Law J. 73; S. Fredman, `Women at Work: The

Broken Promise of Flexicurity' (2004) 33 Industrial Law J. 299; A. Davies, `Casual

Workers and Continuity of Employment' (2006) 35 Industrial Law J. 196; S.

Fredman, `Precarious Norms for Precarious Workers' in Precarious Work, Women,

and the New Economy: The Challenge to Legal Norms, eds. J. Fudge and R. Owens

(2006) 176; D. McCann, Regulating Flexible Work (2008) 37±8, 111±12, 140±1; M.

Freedland, `The Regulation of Casual Work and the Problematical Idea of the ``Zero

Hours Contract''' (2014), at x.ac.uk/the-regulation-of-casual-

work-and-the-problematical-idea-of-the-zero-hours-contract/>.

99 Employment Rights Act 1996, ss. 108(1), 155.

100 Shared Parental Leave Regulations 2014, Regulation 35.

101 For example, Employment Rights Act 1996, ss. 108(1), 210(4) (protection from

unfair dismissal).

102 See, for example, N. Countouris, `Uses and Misuses of ``Mutuality of Obligations''

and the Autonomy of Labour Law' in The Autonomy of Labour Law, eds. A. Bogg et

al. (2015) 169.

103 Carmichael v. National Power Plc [1999] ICR 1226.

104 Department for Business Innovation and Skills (BIS), Zero Hours Employment

Contracts: Consultation (2013); BIS, Zero Hours Employment Contracts ± Banning

Exclusivity Clauses: Tackling Avoidance (2014).

105 Employment Rights Act 1996, ss. 27A±27B.

ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)

the confluence of employment status, legal protection, and working time, it

offers an entry-point for more extensive improvements.

Yet the exclusivity ban is of limited value and does not meet the demands

of the Multidimensional Model. Regulating casual work solely through

exclusivity ignores the substantive multidimensionality of UFW, outlined in

Part I, by neglecting the legal protection, working time, and income

dimensions. The exclusivity ban, for example, does not target an obvious

problem: an exclusive working relationship is as likely to be generated by

the complexities of combining two jobs with unpredictable schedules as by

an express contractual clause.

106

On the legal protection dimension, the

legislation leaves entirely untouched the core problem of the exclusion of

zero-hours workers from legislated labour rights.

107

Further, casualized

working relations are not exclusively a matter of contractual form and status:

they are also a function of the arrangement and predictability of working

hours.

108

A multidimensional conception of casual work would sustain

strategies that address casualization even where a working relationship is

framed within an enduring contractual relationship.

It is evident that casual workers need specific rights that `recognise the

intricacies of their working arrangements . . .'.

109

Such regulatory strategies

are being explored in the academic literature. McCann and Murray have

identified a set of `framed flexibility' mechanisms:

110

the prohibition of

casual work in vulnerable arenas; notice of schedules and overtime;

111

incentives for continuous hours; compensation for short or cancelled call-out

periods;

112

and in-shift travel periods counted as working time. Other ideas

include guaranteed hours or income,

113

`conversion rights' to open-ended

296

106 See, also, Adams and Deakin on restraint of trade: Z. Adams and S. Deakin, `Work

is Intermittent but Capital is Not: What to do about Zero Hours Contracts' (2014), at

//www. ier.or g.uk/b log/wo rk-int ermitt ent-ca pital- not-wh at-do- about- zero-

hours-contracts>.

107 id.; Freedland, op. cit., n. 98; Z. Adams et al., `The ``Zero-Hours Contract'':

Regulating Casual Work, or Legitimating Precarity?' (2015) European Labour Law

Network Working Paper 5/2015.

108 McCann, op. cit., n. 33; McCann and Murray, op. cit., n. 32; B. Burchell and A.

Wood, `Zero Hours Employment: A New Temporality of Capitalism?' (2015), at

://cr itco m.cou ncilf oreur opea nstud ies.o rg/ze ro-ho urs- emplo yment -a-ne w-

temporality-of-capitalism/>.

109 McCann, op. cit., n. 98, p. 180.

110 D. McCann and J. Murray, The Legal Regulation of Working Time in Domestic

Work (2010); McCann and Murray, op. cit., n. 32.

111 Proposed initially in K. Ewing (ed.), Working Life: A New Perspective on Labour

Law (1996) 95±6.

112 See, also, V. De Stefano, `Casual Work Beyond Casual Work in the EU: The

Underground Casualisation of the European Workforce ± and What to Do about it'

(2016) 7 European Labour Law J. 421.

113 Ewing, op. cit., n. 111, pp. 95±6; see, also, Adams et al., op. cit., n. 107.

114 See, for example, Resolution Foundation, A Matter of Time: The Rise of Zero-Hours

Contracts (2013); N. Pickavance, Zeroed Out: The Place of Zero-Hours Contracts

ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)

contracts,

114

abolishing or reducing qualifying periods,

115

and liberalizing

rules on continuity.

116

More wide-ranging proposals tend to centre on the

social protection system, to permit job-seekers to refuse ZHCs,

117

enhance

unemployment benefits,

118

or adopt a new funding model for homecare.

119

Alternative models are also being tested in the policy realm. The Scottish

government's statutory guidance on procurement encourages public bodies

to avoid `inappropriate and potentially exploitative' ZHCs.

120

More expan-

sively, in New Zealand the Employment Relations Act was amended in 2016

to require that contracts and collective agreements specify guaranteed

hours

121

and to prohibit employers from cancelling shifts without notice.

122

The report of a recent government-commissioned independent review of

employment practices in the modern economy (the `Taylor Review')

123

proposed legislative reforms on ZHCs that pick up on some of these ideas:

extending the permissible break in continuous service from a week to a

month;

124

introducing a right to request fixed hours after one year and

requiring larger firms to report on such requests;

125

extending the reference

period for annual leave payments;

126

and investigating whether a higher

minimum wage rate might be made applicable to non-guaranteed hours.

127

The regulatory reforms that will result from these proposals remain to be

seen. In February 2018, the government issued a response that announced a

consultation on the reform of employment status;

128

signalled the intention

297

in a Fair and Productive Economy (2014); Northern Ireland Department for

Employment and Learning, Zero Hours Contracts (2014).

115 Adams et al., op. cit., n. 107.

116 McCann, op. cit., n. 98.

117 Adams and Deakin, op. cit., n. 106; Z. Adams and S. Deakin, Re-regulating Zero

Hours Contracts (2014).

118 id.

119 J. Rubery et al., `Zero hours contracts in social care' (2014) FairWRC Research

Briefing No. 3.

120 Scottish Government, `Statutory Guidance on the Selection of Tenderers and Award

of Contracts. Addressing Fair Work Practices, including the Living Wage, in

Procurement' (2015) 4, 8. See, further, P. Findlay, `Calm Seas or Choppy Waters?

The Role of Procurement in Supporting Fair Work' (2017) Fraser of Allander

Institute Economic Commentary.

121 Employment Relations Act 2000 (New Zealand) s. 67C, inserted by Employment

Relations Amendment Act 2016 (2016 No. 9).

122 id., s. 67G. On the New Zealand legislation, see, further, P. Nuttall, `Good News at

Last fro m Downun der on ``Zero H ours'' Cont racts? ' (2016) , at ://

ohrh.law.ox.ac.uk/good-news-at-last-from-downunder-on-zero-hours-contracts/>.

123 BEIS, op. cit., n. 2.

124 id., p. 45.

125 id., pp. 48, 55.

126 id., p. 47.

127 id., p. 44.

128 HM Government, Good Work: A Response to the Taylor Review of Modern Working

Practices (2018) 31. See, also, BEIS/HMT/HMRC, Employment Status Consultation

(2018).

ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)

to introduce a right for all workers to request `a more predictable contract

where appropriate',

129

to extend the permissible break in continuous service

beyond one week,

130

and to increase the holiday pay reference period to 52

weeks.

131

It also made a request to the United Kingdom's independent

advisory body on the minimum wage, the Low Pay Commission, to explore

the impacts of introducing a higher National Minimum Wage rate for non-

guaranteed hours.

132

Yet even if such measures are adopted, the key challenge to regulatory

frameworks on ZHCs is effective enforcement. In the exclusivity ban, as an

illustration, the conventional `command-and-control' model pairs statutory

allocation of obligations with individualized enforcement. Yet this frame-

work does not meet the deterrence principle and is unlikely to be sustainable

or to have systemic effects: a vulnerable segment of the labour force is

unlikely effectively to enforce their legal rights. In developing new legal

mechanisms on zero-hours work, then, it is essential to transcend command-

and-control models. The government Response to the Taylor Review stated an

intention to extend state enforcement for vulnerable workers to a wider range

of basic employment rights.

133

Yet in line with the experimental drive of the

innovative regulation principle, a more promising method would be to require

business representatives and trade unions to develop autonomous sector-

specific agreements on the fair use of ZHCs. This approach is not unknown in

the United Kingdom policy literature. The government consultation that

preceded the ban hinted at this regulatory model,

134

and the Taylor Review

identified collective agreements as a mechanism to implement guaranteed

hours.

135

The Review also favoured sectoral approaches, including sector-

specific codes of practice or guidance on quality of work that could

incorporate advice on the use of certain types of contract.

136

CONCLUSION

This article responds to heightening awareness that a growing segment of the

global labour force is in work that is unacceptable: low-waged, insecure,

unsafe, harbouring mistreatment, beyond the reach of the state, adrift from

298

129 HM Government, id., p. 39. The mechanism is the subject of a consultation: BEIS,

Consultation on measures to increase transparency in the UK labour market (2018).

130 HM Government, id., p. 31.

131 id., p. 34.

132 id., p. 39. See, further, Low Pay Commission Consultation Letter 2018, at

www.gov.uk/government/consultations/low-pay-commission-consultation-2018>.

133 HM Government, op. cit., n. 128, at 48±9. See also HM Government, Consultation

on Enforcement of Employment Rights Recommendations (2018).

134 See BIS, op. cit. (2014), n. 104, p. 5.

135 BEIS, op. cit., n. 2, p. 44.

136 id., p. 108. Mandatory sectoral collective bargaining is explicitly excluded: id. p. 93.

ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)

labour rights, devoid of collective strength. There is an urgent need to

respond. Yet the mechanisms that can improve UFW are either elusive or

heavily contested. The capacity of the legal construct of the `contract of

employment' to allocate the risks of working life is increasingly disputed,

not least in its limited potential for the effective governance of the `gig

economy ' and role i n constru cting in formal ec onomies . Collec tive

mechanisms are weaker than they have been in recent history. And the

reach, capacity, and effectiveness of state enforcement mechanisms are often

inadequate, while promising innovations in the structure and practice of

labour inspection are overlooked. New ideas are needed on which elements

of traditional regulatory frameworks to retain, which to jettison, and which

novel mechanisms to test and champion.

The article has built on earlier work that proposed a conception of UFW

suited to modern economies and to contemporary working lives. The

Multidimensional Model of UFW, as reviewed in Part I, elaborates a set of

substantive dimensions of UFW and a methodology to predict the incidence

and location of these forms of work. The model is designed to be relevant to

countries across all levels of development and to help policy makers and

regulators to diagnose which work to target.

This article elaborates upon the regulatory dimension of the Multi-

dimensional Model by unveiling a new approach to UFW regulation. Part II

investigated a set of overlapping literatures, from across the social sciences,

that have elaborated the demands of effective labour regulation. Crucial

insights from these literatures were integrated into Part III, which proposed a

strategic approach to UFW regulation. Under this model, UFW are targeted

not only by taking account of their severity or magnitude, but also to achieve

the greatest impact from the available resources. To this end, the strategic

approach has a particular focus on the sites and regulatory modes of

intervention, with an emphasis on the design of legal frameworks, regimes,

and tools. Further research is needed on the range of mechanisms that

embody the strategic approach. As a preliminary contribution, however, two

concepts were proposed. Policy actors, first, should be attentive to points of

leverage, which enable interventions to change the conditions that produce

UFW. Second, institutional dynamism, or the capacity of regulatory frame-

works to extend beyond their formal parameters and to host interactions with

cognate institutions, can also be harnessed to generate sustainable and

system-wide effects.

Part IV highlighted revealing illustrations of existing regulatory initiatives

on UFW. These were interrogated for pointers on the range of interventions

that might embody the strategic approach. The first two ± the Mathadi Act in

India and domestic work laws in Uruguay ± address informal work

performed by vulnerable populations in lower-income countries. Contrasting

regulatory strategies have been adopted: a unique tripartite regime for

Mathadi workers and the extension of conventional legislated rights to

domestic workers. Yet both initiatives have leveraged existing institutions,

299

ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)

especially the social partners, and are deterrent, sustainable, and oriented to

system-wide effects. The third illustration, minimum-wage regulation, again

targets disadvantaged segments of the labour force. The research is finding

minimum-wage frameworks to exhibit dynamic effects, which extend their

reach and strength and have significant potential for protecting low-waged

workers in both North and South. The final regulatory model ± the United

Kingdom ban on exclusivity clauses in `zero-hours contracts' ± targets

profoundly casualized labour and specifically regulates a form of UFW. Yet

the ban neglec ts the multidi mensionalit y of UFW and relie s on a

conventional implementation mechanism (command and control) that is

unlikely to have systemic effects or much deterrence value.

Drawing on these illustrations, some initial observations can be made on

the strategic approach to UFW regulation. First, the involvement of local

actors is crucial. Under the Multidimensional Model, local policy makers

and researchers are not only relied on to identify UFW, they are also

expected to determine where to tar get initiatives cost-effectivel y. In

particular, it is clear that there is a crucial role to be played by non-state

actors in detecting and eliminating UFW. These include membership-based

organizations in the developing world, which represent individuals in a range

of informal working relations (in street vending, for example, transport,

waste picking, and domestic work) and provide a public voice for people in

UFW. Businesses too have an interest in identifying and eliminating

unacceptable work, which gives competitors an unfair advantage and

tarnishes the reputation of all firms in a sector. This locally-orientated ± or

`ground- up' ± approa ch does not pr eclude a rol e for interna tional

organizations. Indeed, the ILO in particular can be foreseen to play a

crucial role, including through its network of field offices. Central would be

support for lo cal actors thro ugh, for example , capacity-bu ilding on

negotiation and regulatory design and dissemination of documentation and

advice on regulatory strategies that are being tested in other countries. This

approach would build on the kinds of activities already being undertaken by

the Organization, associated with the 2030 Agenda under Policy Outcome 8

(UFW)

137

and more broadly on effective labour regulation.

138

As the inclusion of informal worker organizations has highlighted,

second, many w orkers in UFW are s ituated beyon d the tradition al

employment relationship. They therefore elude conceptions of the protected

300

137 See ILO, Outcome 8: Protecting Workers from Unacceptable Forms of Work (2017)

Governing Body, 331st Session, Geneva, October 2017, GB.331/POL/2, at

ww w. i lo .o rg / wc ms p 5/ gr ou p s/ pu b li c/ Ðe d _n or m /Ð re l co nf /d o cu me n ts /

meetingdocument/wcms_580114.pdf>.

138 For example, the involvement of ILO Pretoria in recent efforts to promote local

dialogue on compliance in the garment sector in Southern Africa; see, further, the

Decent Work Re gulation in Afr ica project, a t w.dur.ac.u k/law/

policyengagement/ufw/africa/>.

ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)

worker that are characteristic of conventional labour laws. Such workers are

engaged, for example, in own-account self-employment, casual work, or

multilateral working relationships. To the extent, then, that regulatory frame-

works are tied to the model of the highly subordinate worker, permanently

employed, with a predictable schedule of working hours and engaged in a

bipartite working relationship, they inevitably neglect many vulnerable

workers. To be effective in tackling UFW, legal regulation must therefore

extend beyond the conventional employment relationship, whether by

rethinking traditional models of employment that have been the foundation

of labour laws or by relying on novel labour-law mechanisms or other

institutions that can serve a protective function.

Finally, combatting UFW demands multifaceted policy responses. These

are likely to cut across ministerial boundaries and to demand close coopera-

tion between governmental agencies, the social partners, and a wide range of

civil society actors. The aim of preventing or eliminating UFW must there-

fore be reflected in different policy realms (employment, social protection,

poverty reduction, migration, industrial relations, and so on). It should be the

subject of tailored national laws, policies, and action plans. In particular, a

well-defined national regulatory framework would set out an integrated

approach, which identifies UFW, the actions required for its elimination, and

mechanisms for effective coordination between a range of stakeholders.

These initiatives ± and others yet to be identified ± offer regulatory

lessons that are available for dissemination among policy makers across the

globe. This circulation of regulatory innovations, further, should incorporate

the exchange of experience between policy actors in countries at different

income levels. It may be possible, as an example, that the Mathadi Act

model can be adapted to apply beyond informal workers in developing

countries to the growing legions who labour in the `gig economies' of high-

income countries.

139

Such a global exchange of ideas can be considered

particularly critical for the United Kingdom, in which a narrowing focus on

`illegal working' by undocumented migrants, and an increasing reliance on

the criminal law to tackle labour exploitation,

140

are proving highly

ineffective strategies for combatting UFW.

301

139 See, further, Marshall, op. cit., n. 62.

140 Trade Union Act 2016: see A. Davies, `The Immigration Act' (2016) 45 Industrial

Law J. 431.

ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)

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Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

A Strategic Approach to Regulating Unacceptable Forms of Work

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users