International immigration and labor regulation

By desire or necessity, virtually all of us work for a considerable portion of our lives. Work defines our social status, determines our degrees of health and happiness and underpins our sense of self. The productivity, efficiency and economic significance of the work we do, in aggregate terms, are critical to the prosperity of the societies in which we live. Moreover, fair treatment in our workplaces is an important aspect of our individual well-being and a mark of the civility and decency of our communities. Many of us expect the law to ensure fairness in our work relations; but increasingly, legal arrangements governing labour market regulation are not up to the task. In developed economies, legal rules dealing with rights at work vary dramatically in terms of their institutional context, substantive content and breadth of applicability across varying forms of productive or remunerated personal activity. However, a widespread current concern in many jurisdictions, including Canada, is that “rights at work” often hinge upon a worker’s status as an “employee” in a “standard employment contract” and do not inure to the benefit of those personally performing work for others in a broad range of other legal arrangements, and who are thus left vulnerable to exploitation. In the globalized new economy, legal regulation to support or ensure fairness through domestically legislated rights at work has become increasingly problematic. There has also developed a full blown scholarly crisis about the scope and content of labour and employment law, which has engulfed the global academy in the wake of the collapse of the post-war economic, political and social consensus over the welfare state. Finding ways around the apparent problems is not simple or easy – conceptually, economically, socially or politically. In part, this is because the values which underpin rights at work are contested terrain. But in large measure also, because this context requires a re-conceptualization of worker rights along the full gamut of personal work relations with a commensurate effort to understand how such thinking connects to broader labour market regulation. A myriad of legal structures regulate labour markets which are outside the confines of traditional labour and employment law as understood by most lawyers. That wider playing field is provides the background parameters for this paper. The paper’s purpose is to explore schematically ways to improve the fairness of the legal construction of personal work relations within an integrated, efficient and restorative approach to labour market regulation. Part I sets out the shifting contexts for reflection on rights at work as they have evolved in recent decades. It focuses on changing labour market realities, the collapse of the post-World War II welfare state, the abandonment of the intellectual consensus in which labour and employment law were imbedded, and the new normative tensions over rights at work in the globalized, post-modern economic, social and political environment. It highlights the prevalence of precarious employment, and its attendant devaluation of rights at work and benefits gained through work, as a potential precursor to significant political instability. Part II identifies ways of rethinking fair work relations and improved labour market regulation. It reviews advances in human capability development theory which provide a new normative framework for re-casting work relations and labour market regulation. It outlines the value of a relational understanding of rights in moving beyond the standard employment contract as the primary legal construct for the regulation of personal work relations. It then tackles principles of responsive or restorative regulation as procedural approaches for achieving integrated labour markets which enhance economic competitiveness while respecting fair work relations. Lastly, it contemplates possibilities for stability and social justice through greater rights at and through work, and for competitive but fair labour market regulation. If these ambitions are to be attained, it will involve harnessing both public and private means at national and international levels in the context of deliberative democracy.

1. Sean Cooney, Tim Lindsey, Richard Mitchell and Ying Zhu Labour Law and Labour Market Regulation in East Asian States: Problems and Issues for Comparative Inquiry2. Tim Lindsay and Teten Masduki Labour Law in Indonesia after Soeharto: 'Reformasi' or Replay?3. Suhanah Sharifah Syed Ahmad Law and Labour Market Regulation in Malaysia: Beyond the New Economic Policy4. Froilan Bacungan and Rene Ofreneo The Development of Labour Law and Labour Market Policy in the Philippines5. Pip Nicholson Vietnam's Labour Market: Transition and the role of Law6. Ying Zhu Economic Reform and Labour Market Regulation in China7. Huei-ling Wang and Sean Cooney Taiwan's Labour Law: the End of State Corporatism?8. Cheol-soo Lee Law and Labour-Management Relations in South Korea: Advancing Industrial Democratization9. Sean Cooney and Richard Mitchell What is Labour Law Doing in East Asia?

The International Labour Organization (ILO) has adopted a very ambitious plan of advocating for decent work for all, which will facilitate protection for the vulnerable in society and alleviate poverty. The Decent Work Agenda essentially recognizes that labor law can regulate the market as it assists in accelerating the alleviation of poverty through provision of jobs and income security, social security, and the protection of fundamental rights. Using the ILO Decent Work Agenda of core labor standards and the basic social protection floor of universal access to healthcare, basic social security, and income security as proxies, this chapter reviews current policies and regulatory frameworks of labor and social law developments in selected African countries. The chapter suggests solutions to challenges to the attainment of the Decent Work Agenda and social protection for all and how best these can be addressed toward the implementation of a Decent Work Agenda. It undertakes an examination of the varied developments of labor legislation, relevant jurisprudence, and labor market institutions to determine the direction of labor market regulation as a tool in guiding the broad objectives of adequate social security, job creation, and training in Africa.

In this paper we present comparative evidence from OECD countries concerning the impact of labour market institutions and regulations on technological specialization. The interplay between the degree of labour market flexibility, the system of industrial relations and the knowledge base of different industries determines the viability of different human resource strategies, thereby shaping the patterns of comparative advantage. Our empirical results show that countries with coordinated industrial‐relations systems and strict employment protection tend to specialize in industries with a cumulative knowledge base. We argue that two mechanisms explain these patterns. The larger the scope for resorting to internal labour markets, the lower the adjustment costs imposed by labour market regulation. Furthermore, employment protection and coordinated industrial‐relations regimes, by aligning workers' and firms' bjectives, encourage firm‐sponsored training as well as the accumulation of firm‐specific competencies, allowing firms to fully exploit the potential of the internal labour market.

Does interacting product and labor market regulation alter the impact of immigration on wages of competing native workers? Focusing on the large, sudden and unanticipated wave of migration from East to West Germany after German reunification and allowing for endogenous immigration, we compare native wage reactions across different segments of the West German labor market: one segment without product and labor market regulation, to which standard immigration models best apply, one segment in which product and labor market regulation interact, and one segment covering intermediate groups of workers. We find that the wages of competing native West Germans respond negatively to the large influx of similar East German workers in the segment with almost free firm entry into product markets and weak worker influence on the decision-making of firms. Competing native workers are insulated from such pressure if firm entry regulation interacts with labor market institutions, implying a strong influence of workers on the decision-making of profit-making firms.

Th e concern of this article is the goals (or purpose) of labour law. I use the traditional term “labour law” but this should not be understood as an intention to limit the discussion to traditional or narrow boundaries. You may feel free to replace the term “labour law” with “employment law”,1 “work law”,2 “labour market regulation”3 or any other title of your preference – if it is about the regulation of work then it is within the concern of this article. Recently debates about the goals of labour law have assumed centre stage in labour law scholarship.4 However I will not attempt to articulate the goals of labour law here, but rather consider some preliminary methodological questions that seem to me crucial for this kind of endeavour. It may seem obvious to most readers that before doing anything – let alone something as important as interpreting or reforming labour law – we must ask ourselves what exactly is the goal of what we do. Th is seems to be the only rational approach to such tasks. Yet quite oft en we do things automatically, without stopping

PART I. LABOUR LAW IN TRANSITION 1. The Horizons of Transformative Labour and Employment Law 2. Labour Law at the Century's End: An Identity Crisis? PART II. CONTESTED CATEGORIES: WORK, WORKER, AND EMPLOYMENT 3. Women, Work, and Family: A British Revolution? 4. Who Needs Labour Law? Defining the Scope of Labour Protection 5. Beyond Labour Law's Parochialism: A Re-envisioning of the Discourse of Distribution PART III. GLOBALIZATION AND ITS DISCONTENTS 6. Feminization and Contingency: Regulating the Stakes of Work for Women 7. Seeking Post-Seattle Clarity - and Inspiration 8. Death of a Labour Lawyer? PART IV. SAME AS THE OLD BOSS? THE FIRM, THE EMPLOYMENT CONTRACT, AND THE 'NEW' ECONOMY 9. The Many Futures of the Contract of Employment 10. From Amelioration to Transformation: Capitalism, the Market, and Corporate Reform 11. Death and Suicide from Overwork: The Japanese Workplace and Labour Law 12. A Closer Look at the Emerging Employment Law of Silicon Valley's High-Velocity Labour Market 13. 'A Domain into which the King's writ does not seek to run': Workplace Justice in the Shadow of Employment-at-Will PART V. BORDER/STATES: IMMIGRATION, CITIZENSHIP, AND COMMUNITY 14. The Limits of Labour Law in a Fungible Community 15. Immigration Policies in Southern Europe: More State, Less Market? 16. The Imagined European Community: Are Housewives European Citizens? 17. Critical Reflections on 'Citizenship' as a Progressive Aspiration PART VI. LABOUR SOLIDARITY IN AN ERA OF GLOBALIZATION: OPPORTUNITIES AND CHALLENGES 18. The Decline of Union Power - Structural Inevitability or Policy Choice? 19. The Voyage of the Neptune Jade: Transnational Labour Solidarity and the Obstacles of Domestic Law 20. Mexican Trade Unionism in a Time of Transition 21. A New Course for Labour Unions: Identity-based Organizing as a Response to Globalization 22. Difference and Solidarity: Unions in a Postmodern Age PART VII. LAYING DOWN THE LAW: STRATEGIES AND FRONTIERS 23. Is There a Third Way in Labour Law? 24. Private Ordering and Workers' Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labour Market Regulation 25. Emancipation through Law or the Emasculation of Law? The Nation-State, the EU, and Gender Equality at Work 26. Social Rights, Social Citizenship, and Transformative Constitutionalism: A Comparative Assessment Index

Does labour regulation affect technical and allocative efficiency? Evidence from the banking industry

The aim of this chapter is to interrogate what, if anything, is gained by reformulating labour law as a field of reflexive law and governance. The tradition of Oxford labour law scholarship stretching back to Kahn-Freund has not of course typically deployed the terminology of ‘reflexive law’, though it has been preoccupied—as reflexive law scholarship is—with labour law’s regulatory techniques. At its simplest, the reflexive turn in labour law is an attempt to speak to concerns about the effectiveness of the traditional regulatory techniques of labour legislation and administrative regulation in the context of changes in the institutional landscape, and changes to regulatory objectives in the areas of industrial relations and social policy. What has changed since the heyday of, respectively, collective laissez-faire and statutory intervention, as the dominant techniques of labour market regulation, and how convincing is ‘reflexive law’ in its attempt to explain or rationalise the new forms of governance or law-making within the UK labour market, and more generally with reference to the social and employment policy of the European Union (EU)? This requires a three-fold investigation: first is reflexive law descriptively an appropriate means by which to understand the range of regulatory techniques being adopted across the field of employment and industrial relations: how accurate a description of regulatory change are theories of reflexive law, or related discourses of ‘responsive’, ‘new’ or ‘experimentalist’ governance? Second, is it right, normatively, to adopt or advocate a reflexive approach to regulation, to the extent that such an approach may well eschew a substantive content for labour law? Can a reflexive approach be inherently ‘neutral’ as to (regulatory or labour market) outcomes? What of those criticisms of reflexive regulation which contend that the rise of reflexive (labour) law runs in parallel to and indeed reinforces the neoliberal turn in economic policy making? Third, is there empirical evidence to show that a reflexive approach to regulation works in practice? Is it true to claim—as theorists of reflexive law, responsive regulation or new governance do—that regulatory interventions in the labour market are more likely to be successful in achieving their objectives if they avoid direct prescription of substantive social or distributive outcomes, and instead engage in what one might call ‘second-order’ regulation by creating frameworks within which social actors such as employers can negotiate?

The surprising recent success of populist politics has been framed as a sharp break from the neoliberal world order that followed the collapse of the Soviet Union. This article explores how right-wing populist leaders from Argentina, Brazil, and the United States in the 1990s and 2010s have implemented policies that aimed to liberalize labour market regulations and weaken workers’ protections, despite their ‘common people’ rhetoric. Relying upon the theoretical frameworks of Kurt Weyland as well as Thomás Zicman de Barros and Miguel Lago, this article examines the ‘neoliberalization’ of populism in the 1990s in Argentina and Brazil, which had been traditionally associated with inward-looking and nationalist economic policies. Similarly, it explores the reactionary right-wing populism of Donald Trump and Jair Bolsonaro, which resulted in neoliberal labour policies that followed a conservative tradition. To shed light on how these policies have reshaped labour laws, this article first explores the experiences in Argentina and Brazil during the 1990s, in which neo-populist governments, heavily influenced by the Washington Consensus, reformed labour regulations to deconstruct traditional individual labour laws and to undermine the role of social partners. Second, this article studies the development of reactionary right-wing populism in the Americas in the late 2010s, particularly in Brazil and the United States, with a focus on the adoption of neoliberal policies that aim to deconstruct protective labour regulations. Despite the recent electoral defeats of both Trump and Bolsonaro, the incidence of rightwing populism has not disappeared in the Americas, which became an established major actor in the political arena. The risk seems to be even more concrete in Argentina where the centre-right party, pushed by far-right libertarian candidates, is adamant about implementing a major reform to liberalize labour laws if elected in the next general election in October 2023. The article concludes that even though right-wing populists portrayed themselves as champions of the working class during both earlier periods, they implemented traditional neoliberal labour law policies, which pursued the liberalization of labour market regulations, shunted aside social partners, resulting in the dramatic undermining of workers’ rights. Populism, Neoliberalism, Neopopulism, Argentina, Brazil, United States, Trump, Bolsonaro, Labour Reform, Latin America

Modern populism has developed in Scandinavia since at least the 1970s, first in Norway and Denmark but more recently also in Sweden. Populist political parties have been well-established in Scandinavian Parliaments for many years. However, from a labour law perspective, the populist impact, if any, has been limited and populist discourse has primarily focused on issues such as migration and the European Union (EU), and to some extent ‘welfare tourism’. This article examines the development of populist movements in Norway and Sweden and analyses the possible impact of populist policies on national labour law. The conclusion is that Nordic industrial relations and labour market regulations, based on strong and representative trade unions and well-organized and responsible employer federations, act as a robust counterweight to populist policies on the labour market. Section 2 of the article consists of a discussion of how we understand the development of modern populism in a Norwegian and Swedish perspective. Section 3 explores the extent to which populist political ideas have directly impacted or indirectly influenced labour market regulations in the two countries. In concluding, section 4 monitors the potency of strong and well-established industrial relations as a countervailing force to populist political movements. Populist Policies, Labour Market Regulation, Scandinavia, Norway, Sweden, Resilience to Populism

A major question for the comparative analysis of industrial relations and labor market institutions has been the extent to which labor laws in different countries have converged or diverged over time. A second question is whether any convergence between labor law systems is associated with economic globalization. Using a new measure of the “protective strength” of a country’s labor market regulation (the Longitudinal Labor Regulation Index), this study compares the evolution of labor laws in six countries (Australia, France, Germany, India, the United Kingdom and the United States) for the period 1970 to 2005. We assess whether there has been a convergence in the protective strength of labor market regulation between these countries or ongoing divergences between them. In particular, we test whether there is evidence of “formal” or “functional” convergence, “weak” or “strong” convergence, “simple” or “bipolar” convergence, and whether convergence is associated with globalization and economic integration between the countries included in our study. Our analyses show that over the period from 1970 to the mid-1980s the protective strength of labor laws actually diverged, but began to converge thereafter. Although we find evidence of both formal and functional convergence during this later period, this propensity has been weak, and tended toward a pattern of “bipolar convergence.” At the same time, the data do not indicate that any of these processes of convergence were associated with an “Americanization” of labor law, or a race to the bottom.

The traditional ‘idea’ of labour law is a combination of subject matter and purpose. According to Kahn‐Freund’s famous articulation of labour law, it is generally considered to be the law which regulates the employment relationship with the goal of correcting an imbalance in bargaining power between employer and employee in order to secure a more just working relationship for the worker. The overarching goal of this paper is to re‐state the case for a broader interpretation of the traditional subject matter and purpose of labour law, and to locate industrial policy within that broader perspective. Over recent years, for reasons which are explored later in the paper, there has been considerable support in labour law scholarship for the reformulation of labour law around a wider, labour market regulation perspective of the subject (the LMR perspective). Efforts to develop the LMR perspective have been particularly strong in Australia. On this view, labour law encompasses various forms of labour market regulation in addition to employment regulation, including social security law, active labour market policy and as I argue in this paper, industrial policy. The paper will use the example of the implementation of the New Protection during the early beginnings of federal labour regulation in Australia to illustrate the importance of industrial policy settings to the subject matter and goals of traditional labour law. I will also consider the advantages to both scholarship and labour policymaking and practice of including industrial policy within the idea of labour law.

After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the national security agencies’ failure to coordinate. The financial crisis has been linked to similar coordination failures in the context of interagency banking regulation, with jurisdictional gaps and blind spots resulting in failure to prevent a global recession. But despite Gilded Age-levels of inequality, little attention has focused on the failures of interagency coordination to secure Americans’ access to economic opportunity through work — whether through securing higher wages and higher union density, coordinating government enforcement to achieve redistributive goals and combat consolidation of employer buyer power, or overcoming systemic abuses in employers’ wage theft, discrimination, and worker mistreatment. The crippling spread of the coronavirus (COVID-19) pandemic demands that now, more than ever, agencies coordinate in their regulation of labor markets to accomplish micro- and macroeconomic policy goals.This Essay is a component of a larger project that seeks to document federal agencies’ selective coordination along six core policy vectors that impact work- or income-based avenues towards equality — macroeconomic, microeconomic, institution-building, industry-specific, anti-subordination, and democratic/expressive policy. It presents the results of a novel data set collecting and systematizing existing Memoranda of Understanding (MOUs) authorized by the core agencies involved in labor market regulation: the Department of Labor (DOL), its sub-agencies, the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the Department of Justice-Antitrust Division, and the Federal Trade Commission. By hand-coding and analyzing the 112 discoverable MOUs from the 1950s to the present, the Essay presents a novel history of interagency coordination on labor regulation, highlighting which labor agencies coordinate most and least, what such coordination facilitates as a substantive and administrative matter, and the broad scope and areas of labor market regulation on which coordination has not yet occurred. It concludes by arguing that the federal government lacks a coherent, aligned vision on labor market regulation and economic mobility through work, and proposes next steps for improving agency coordination.

This article examines the individual- and country-level factors that contribute to the risk of working unsocial hours in 30 European countries. Using the EU labor force survey data, the authors test for the influence of labor market dualization, product- and labor market regulation, and collective bargaining on the individual risk of working unsocial hours. The risks of working unsocial hours are strongly dualized in all countries, but the size of the risk gap between low-skilled outsiders and high-skilled insiders varies. In countries where collective bargaining plays a greater role in regulating work hours the gap between low- and high-skilled workers is smaller.