The Employment Relationship ILO Recommendation No. 198 (2006)

Transcription

1 The Employment Relationship ILO Recommendation No. 198 (2006) Prof. Giuseppe Casale Deputy Director, ITC-ILO Director, Turin School of Development Secretary-General ISLSSL 1

2 Evolution of the discussion at the ILO 1997/98 ILC discussion of Contract Labour 2000 Meeting of Experts on Workers in situations needing protection ILC 2003 General discussion on the Scope of employment relationship concluded The adoption of a Recommendation is considered... as an appropriate response... The Recommendation should focus on: (i) disguised employment relationships and (ii) the need for mechanisms to ensure that persons with an employment relationship have access to the protection they are due at the national level; 2

3 Evolution of the discussion at the ILO Be flexible enough to take account of different economic, social, legal and industrial relations traditions; Address the gender dimension; Promote collective bargaining and social dialogue as a means of finding solutions to the problems at the national level; and Take into account recent developments in the employment relationship. The Recommendation should not interfere with genuine commercial and independent contractual relationship The issue of triangular relationship was not resolved 3

4 2005: ILC 2006 Preparatory work Comparative law and practice Questionnaire designed with a view to preparing a draft Recommendation (High percentage of replies) 2006: Summary of the replies The Office commentary Proposed Recommendation concerning the employment relationship to the ILC 4

5 National policy for reviewing at appropriate intervals and, if necessary, clarifying the scope of laws and regulations The nature and extent of protection should be defined by national law and practice Should at least include measures to: Provide guidance on effectively establishing the existence of an employment relationship; Distinction between employed and self-employed persons; Combat disguised employment relationships; Law and practice should be clear and adequate to ensure effective protection of workers in an employment relationship; 5

6 Ensure standards applicable to all forms of contractual arrangements, including those involving multiple parties; Secure effective access to appropriate and speedy procedures and mechanisms for settling disputes; Ensure compliance; Provide appropriate training to mediators, arbitrators, judges and labour inspectors; Ensure effective protection to workers, especially affected by uncertainty as to the existence of an employment relationship. Should be formulated and implemented in collaboration with the most representative employers and workers organizations 6

7 Should not interfere with legitimate civil and commercial relationship Determination of the existence of an employment relationship Providing for a legal presumption that an Employment Relationship exists where one or more relevant indicators is present Prevalence of facts, notwithstanding any contrary arrangement that may have been agreed between the parties 7

8 Determining that workers with certain characteristics, in general or in a particular sector, must be deemed to be either employed or selfemployed; Defining the conditions applied for determining the existence of the Employment Relationship, for example subordination or dependence; Other criteria (indicators (e.g. Periodic payment of remuneration (principle source); paid annual leave; rest periods; payment in kind; absence of financial risk; Establish or promotion of effective and speedy services to guide workers and employers; 8

9 The settlement of disputes should be a matter for industrial or other tribunal, or arbitration authorities; Adoption of measures with a view to ensuring, in particular through labour inspection service, respect for and implementation of relevant laws and regulations; Promotion of the role of collective bargaining and social dialogue. Monitoring and implementation Establishment of an appropriate mechanism for monitoring relevant developments in the labour markets 9

10 The most representative employers and workers organizations should be represented on an equal footing in the above mechanism; Collection of relevant information and statistical data and the undertaking of research; Establish mechanisms to identify the Employment Relationship within the framework of the transnational provision of services. 10

11 Resolution on the Employment Relationship The Office should: Maintain up-to-date information on law and practice dealing with the Employment Relationship; Undertake comparative studies on changes in the patterns and structure of employment relations; and Assist constituents in implementing Recommendation No