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In recent years it has become clear that many businesses, motivated by
avoiding the rigidity and the price tag associated with labour law and social
security, have succeeded in eroding the protection of labour law by creating
numerous categories of workers classified as non-employees. In 1996 the
International Labour Organisation (ILO) adopted Recommendation 198, which asks
its Members to undertake action to reduce ‘disguised’ employment
relationships, with the goal of ensuring that those actually working in an
employment relationship are actually given the corresponding legal status.
Though these are – from a legal approach – two conceptually different
phenomena, they are closely related from a social policy point of view. In
order to make a substantial contribution to the discussion on these
developments a group of noted European labour law scholars has undertaken the
research assembled in this book, recommending labour law reforms based on a
close examination of existing conditions. The eight authors analyse measures
and legal instruments offered by the European Union and the ILO to cover
persons performing personal work, as well as specific developments in Belgium,
France, The Netherlands, Poland, Germany, and the United Kingdom. In each case
they describe viable ways in which categories of persons not treated as
employees can be brought under the protection of labour law and how the
distinction between employees and self-employed can become more clear. In a
concluding final Chapter comparative conclusions are drawn on the basis of
this study and recommendations are given to the EU, the ILO and the individual
Member States. Among the specific issues covered are the following:
• redefining the subordination criterion;
• the role of the courts;
• determination of the contract of employment;
• forms of labour involving more than two contracting parties (e.g.,
employment agency arrangements);
• the legal position of temporary workers;
• ‘employee-like’ persons, e.g., home-workers or commercial representatives;
• the ‘bogus’ self-employed;
• introduction and effect of legal presumptions in labour law and/or social
security;
• developing uniform criteria for the employment relationship;
• criteria for identifying self-employed but economically-dependent workers;
• extension of protection of labour law to persons other than employees or the
self-employed; and
• social rights applicable to all work contracts irrespective of their formal
qualification;
• floor of core rights.
This study seriously contributes toward overcoming the reluctant and piecemeal
measures commonly taken to extend the protection of the employment contract.
Although the authors acknowledge the continuing tension between labour law
protection and the need for a flexible workforce, they also recognize the
positive effects of best practices that lead to more certainty, fewer
disputes, and clear (but still flexible if necessary) agreements. The book
will be warmly welcomed as a signal contribution to addressing what one labour
law scholar has called ‘the most important industrial relations issue of our
time.’