Policy Responses to New Forms of Work

Chapter 7. Cross-cutting issues

Previous sections have dealt with false self-employment, workers in the “grey zone” between dependent employment and self-employment, platform workers, and those on fixed-term and variable hours contracts. This section presents policy responses to issues that are not specific to any one of these groups, but may be more pertinent to non-standard workers than to standard employees.

Policy responses were reported in the cross-cutting areas of:

• Ensuring adequate Occupational Safety and Health in non-standard contracts; and

• Ensuring compliance with labour law.

The questionnaire also asked about any policy responses taken to protect non-standard workers from discrimination, i.e. by buyers of goods/services, by platforms/employers, or within platform algorithms. However, no recent public policy responses aimed at tackling this issue within new forms of work were reported. Many countries reported that existing anti-discrimination regulations were sufficient to address new forms of work.

7.1. Occupational Safety and Health in non-standard contracts

Countries mentioned efforts to improve Occupational Safety and Health (OSH) for contractors, platform workers, and fixed-term and temporary workers. Bulgaria and Sweden reported that safe and healthy working conditions were a concern in new forms of work. Portugal, Slovenia, Sweden and Hungary described how they were updating OSH strategies to address new forms of work. Greece stated that OSH for non-standard workers was a priority for the Hellenic OSH Labour Inspectorate.

“[…] These workers might not have the same level of protection for their safety and health risks and also might not be trained and informed about the risks” – Greek questionnaire response

Self-employed contractors typically take responsibility for ensuring their own safety and health. Many of the risk factors for contract work also apply to platform work, such as the lack of a regular and/or common workplace and autonomy in working hours. Characteristics of platform work which may further increase the risk of injury include potentially high levels of competition (encouraging long hours and risk-taking), the type of tasks performed (e.g. transport), and the informal and multilateral nature of working arrangements.

While fixed-term and temporary workers will have an employment contract in which the employer must comply with OSH regulations, temporary workers are consistently shown to be at higher risk of occupational accidents. Moving from one workplace to another, a lack of familiarity with the workplace increases the risk of injury, especially if employers provide less health and safety training to this group than to permanent employees.

7.1.1. Extending OSH protection to non-employees

Employers in all countries must comply with occupational safety and health regulations while the self-employed typically take responsibility for ensuring their own safety and health. However, in many countries, OSH regulations for employers are broad enough to cover more than just the traditional employment relationship. In some countries, OSH protection has been decoupled from the employment relationship (Australia, Ireland, Lithuania, Malta, Turkey and the United Kingdom). In others, OSH regulation is connected to the workplace rather than to any specific contract type (as in Australia, Bulgaria, Canada and Poland), which would provide protection to contractors with access to a common workplace.

Canadian employers currently have an obligation to protect the health and safety of any “person granted access” to their workplace regardless of their status (i.e. including contractors/non-standard workers, health and safety officers, and the general public). A 2017 amendment strengthened the protection of persons granted access to the workplace and extended workplace protection to cyberbullying when the relationship between parties is work-related.

In Estonia, amendments to the Occupational Health and Safety Act are being discussed which would extend regulations to individuals contracted for provision of services and working alongside one or more employees. The amendments would place obligations on the individual and on the employer to inform the other party of their work-related hazards and of the measures for avoiding such hazards. The same regulation already applies to sole proprietors.

While the Korean Occupational Safety and Health Act does not currently provide for safety and health measures for non-regular workers, the Korean response reported a growing consensus on the need for industrial accident prevention for dependent contractors, on-demand workers who use delivery apps and other non-regular workers. In response to growth in platform work and growth in occupational accidents for platform workers, the Korean government plans to extend the Occupational Safety and Health Act so that “all working people” are protected. It has also been preparing to revise the Occupational Safety and Health Act fully to require employers to take specific health and safety measures (e.g. providing protective equipment and training) for non-regular workers, including dependent contractors and delivery workers.

7.1.2. Taking special measures for fixed-term and temporary workers

Lithuania and the United Kingdom reported special measures for temporary workers.

• The UK Health and Safety Executive has published guidance targeted at temporary workers and other workers ‘new to the job’.

• In Lithuania, temporary workers are only permitted to start work when they are familiar with the requirements of the safety and health legislation, risks specific to their work and how to use tools. They must be trained in safe work at the specific workstation, even if they have already received instruction from a temporary employment agency.

7.2. Ensuring compliance with labour law

While compliance with labour law is important for all workers, non-standard workers may be particularly vulnerable to legal breaches if they are in a weak bargaining position. Section 3.1.2 discussed policy measures taken to ensure that existing regulations regarding worker classification are being properly implemented and enforced, including helping firms and workers to identify their employment relationships and strengthening enforcement. This section notes some policy measures taken to ensure that firms comply with labour law more generally, including:

• Ensuring workers are aware of rights, responsibilities and working conditions, e.g. obliging firms to provide written confirmation of worker status, running public information campaigns;

• Making it easier for workers to take legal action in cases of labour violations, e.g. simplifying procedure, reducing legal costs, protecting workers against retaliation;

• Strengthening penalties in order to encourage compliance, e.g. greater penalties (financial, naming and shaming or imprisonment), particularly where firms continuously breach the law; and

• Strengthening the labour inspectorate to monitor and detect breaches, e.g. increased resources and powers, restructuring of the responsible agencies, new inspection strategies, and efforts to collaborate.

7.2.1. Ensuring workers are aware of rights, responsibilities and working conditions

In many countries1 (but not all), an employment contract must be concluded in writing. In Poland, action was taken in 2016 to prevent the so-called “syndrome of the first day” which described a situation in which an employer using an illegal working arrangement could claim it was the employee’s first day when the labour inspector requested the contract. Under the new rule, the contract must confirm the arrangements in writing prior to admitting an employee to work. The Japanese response reported that discussions were underway on the topic of “clear indication of contractual terms” in relation to Work Style Similar to Employment.

Canada, Portugal and Slovenia mentioned activities they were undertaking to inform workers of their rights:

• According to the Canadian response, the Canadian Labour Program is attempting to improve its internet presence and use of social media tools to reach workers employed in traditional and non-traditional workplaces. They mentioned that inspectors are also engaging in outreach efforts, targeting specific sectors to provide information on employees’ rights and employers’ responsibilities.

• Portugal mentioned awareness campaigns carried out with the social partners in relation to undeclared work (in 2014/2015) and temporary work (anticipated).

• The Slovenian Ministry of Labour, Family, Social Security and Equal Opportunities reported multiple activities to inform all parties within the labour market of the existing legal framework, and their rights and obligations, including forthcoming campaigns on the topic of health and safety in the workplace.

7.2.2. Making it easier for workers to take legal action

Australia, Estonia and Saudi Arabia reported efforts to simplify procedures for workers wishing to take legal action:

• In 2016, the Australian Fair Work Ombudsman launched an online anonymous tip-off tool.

• Although not directly driven by labour market trends, in Estonia, a new Labour Dispute Resolution Act entered into force in in January 2018, with the aim of simplifying out-of-court settlement of disputes before the labour dispute committee.

• The Ministry of Justice started to run labour courts in Saudi Arabia in 2018, facilitating the online filing of cases and imposing a time limit on court decisions.

Some countries (including Bulgaria, Lithuania, Romania and Saudi Arabia) mentioned that workers were already exempt from costs in labour dispute procedures.

Canada described an upcoming policy change to address the issue of retaliation. Once in force, amendments to the Canada Labour Code passed in 2017 will permit employees to make a written complaint to the Canada Industrial Relations Board in case of retaliation against them for trying to exercise a labour standards right. If the employer fails to prove that the action was not a prohibited reprisal, the Board will have the power to order that the employee be reinstated and/or compensated for lost wages.

7.2.3. Strengthening penalties to encourage compliance

In the UK government’s response to the Taylor Review (2018[12]), it accepted a number of recommendations aimed at strengthening penalties for employers who break the law, including: quadrupling the maximum penalty for aggravated breach of employment law; introducing uplifts in compensation for repeated breaches in similar cases; and introducing a scheme to name and shame employers who fail to pay employment tribunal awards and simplifying the enforcement process for individuals in this situation.

Although not specifically targeted at new forms of work, the Canada Labour Code is being amended to strengthen compliance and enforcement measures. Key measures include public naming of violators in the case of repeat or serious offences and prohibiting serious violators from being awarded federal contracts.

In Australia, the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 introduces higher penalties for deliberate and systematic underpayments, increased penalties for record keeping and payslip failures, and new penalties for deliberately hindering or obstructing inspectors. As a response to the work of the Australian Black Economy Taskforce, the Australian government is consulting with stakeholders on amending the Fair Work Act to increase penalties for sham contracting.

“The Australian Government is strongly committed to workers receiving the fair and proper entitlements and reinforces that all businesses, including those in the platform-based economy that treat workers as independent contractors must ensure that they have categorised workers correctly” – Australian questionnaire response

In Austria, laws brought in through the Wage and Social Dumping Control Act (since 2011) have strengthened penalties for underpayment, not just in respect of the national minimum wage but also in respect of collective agreements. There are now increased penalties for refusal to provide wage documentation, which underpaying firms had previously exploited.

Other countries (Lithuania, Hungary, the Slovak Republic and Poland) also reported higher sanctions for repeat violations. In Poland, if such violations are considered continuous and repeated, it may be assessed whether they meet the criteria of crime. If so, and if such violations are malicious or persistent, the punishment could be imprisonment. In Saudi Arabia, the Ministry of Labour can suspend services for employers who repeatedly break the law. Cyprus and Romania reported recent increases in financial penalties for undeclared work.

7.2.4. Strengthening the labour inspectorate

Many countries reported recent efforts to strengthen the labour inspectorate in light of anticipated labour market developments. Sweden referred to new challenges for the labour inspectorate:

“Distance work and sharing economy can lead to the blurring of the role and responsibilities of the employer in relation to the employee. Combined with mobile work the physical work site is disappearing […]. This poses two major questions to the labour inspectorate: whom and what to inspect, and how to encourage better primary prevention at the work site” – Swedish questionnaire response

The Swedish response called for combining OSH enforcement with enforcement of conditions of employment and better cooperation with social partners. They mentioned areas of potential collaboration between labour inspectorates in different countries, such as joint inspection and information campaigns (as is being done within an ongoing Nordic project on undeclared work) or the creation of a Nordic liaison network for the exchange of information, methods and personnel (particularly to deal with undeclared work).

In Latvia, within the framework of the project of the European Social Fund "Improvement of the Practical Implementation and Monitoring of Labour Safety Regulations", the government is planning a study on "New forms of employment and their application in practice". The aim of the study is to improve understanding of the application of new forms of employment in practice and, based on the analysis, to obtain proposals for more successful use of the new employment forms. Latvia also reported discussions on new forms of employment in meetings of labour inspectors between the Baltic States in 2016 and 2017.

In July 2018, the Spanish government put in place a “Strategic Plan for Decent Work 2018-2020”, to tackle bogus self-employment and abuses in temporary and part-time work among other issues. Two immediate action plans were launched to fight against fraud in temporary and part-time contracts. They also announced organisational measures to strengthen the labour inspectorate and increases in sanctions.

Many countries reported recent efforts to increase the capacity of the labour inspectorate, including:

• Enhancing training for inspectors, including in some cases training specific to false self-employment and other new forms of work (Argentina, Greece, Hungary, Ireland, Portugal, the Slovak Republic, Spain, Sweden and Turkey);

• Modernising systems and using new technological tools (Argentina, Canada, Chile, Finland, Hungary, Latvia, Malta, Mexico, Portugal, Saudi Arabia and the Slovak Republic);

• Increasing the number of labour inspectors (Germany, Israel, Lithuania, Malta, the Netherlands, New Zealand, Portugal, the Slovak Republic and Saudi Arabia); and

• Providing additional funding (Australia, Canada and New Zealand).

Italy and the United Kingdom mentioned initiatives to restructure the agencies responsible for labour inspection.

• In 2015, a new labour inspectorate agency was established in Italy, merging previously separated bodies within the Ministry of Labour, the National Security Institute and the National Health and Safety Insurance Institute. The goal was to strengthen labour market intelligence and increase efficiency of inspections.

• In 2016, the UK government created a new statutory role of Director of Labour Market Enforcement, with responsibility for providing strategic direction to labour market enforcement bodies to ensure effective coordination and targeting of enforcement efforts. This step was welcomed in the Taylor Review (2017[11]), which also recommended that HMRC take responsibility for enforcing core pay rights (minimum wage, sick pay and holiday pay) for the lowest paid workers. The UK government accepted this recommendation.

Poland, Hungary and Australia described new powers granted to labour inspectorate authorities.

• In Poland, the powers of the Chief Labour Inspectorate were increased in 2017 so that it has responsibility for inspecting whether minimum hourly rates are observed within specific civil law contracts.

• In an effort to improve efficiency, powers of inspection were given to district offices in Hungary in 2018, in cases considered simple to assess.

• In Australia, the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 gives the Fair Work Ombudsman the ability to compel a business or person to attend an interview or give evidence, subject to tribunal oversight.

Chile, Mexico and Turkey mentioned new strategies for labour inspection.

• In Chile, a draft law (at the time of writing) aims to improving efficiency and effectiveness in labour inspections, by establishing clear division between different functions, and reforming management processes.

• In Mexico, the regulatory framework for labour inspection was reformed in 2014, with the aim of increasing coordination between labour inspection authorities, promoting voluntary compliance through provision of guidance, and increasing transparency in inspections.

• In light of recent work trends and seeking a more sustainable, efficient and effective approach, the Turkish Labour Inspection Board said that it was moving towards a more prevention-oriented and “risk-based” sectoral approach. Scheduled inspections of temporary employment relationships have started to be implemented in private employment offices. Inspections have also started to be implemented in sectors and areas where flexible work is prevalent, such as construction, IT and national chain market establishments and small scale local market establishments. In addition, in-service training on flexible work and the rights and obligations of flexible workers was provided to inspectors.

Note

← 1.  For instance, this is a key part of the EU Written Statement Directive (91/533/EEC).