Beating back the temporary labour agencies' global offensive
Disposable jobs are on the march – and the global temp agencies are targeting Russia as the new battleground in their global offensive.
Two members of the Russian Duma (Parliament), one of them the president of the mining and metal workers union, have introduced draft legislation which would effectively ban temporary labour agencies in the country. The bill would require the use of direct employment contracts in all instances where direct employment relations are present by prohibiting the insertion of a ‘triangular’ relationship between workers and the real employer through the medium of an agency. This has provoked the vigorous intervention of the global association of temporary agency employers, Ciett, who are lobbying Russian lawmakers in the name of… defending workers’ interests.
Temporary agency labour in Russia currently occupies a grey zone – its legal basis has not been established, nor is it expressly illegal. This uncertain status has put a brake on the expansion of the agencies, who are eager to expand the lucrative market for disposable jobs. Russian workers can be thankful that an estimated maximum of 100,000 jobs in that country are currently supplied by temporary agencies, though other forms of precarious work are of course present. For the industry, more is at stake than the vast Russian market – the legal grey zone persists throughout the former Soviet Union. Namibia banned temporary agencies, only to see the law struck down on appeal when the agency lobby contested the legislation in the name of defending their “fundamental rights”; a similar debate is underway in South Africa, where COSATU is strongly opposed to expanding the scope for labour contracting.
Ciett the workers voice?
Ciett, supported by the global temp giants and a network of national federations, describes itself as “the authoritative voice representing the interests of agency work businesses.“ Faced with a legislative obstacle, the voice changes register. A recent Ciett letter to the head of Russia’s Parliament begins by stating that prohibiting agency labour is “inappropriate from the point of view of defending the interests of employees.”
Temporary agencies, according to Ciett serve the interests of the working class by “creating jobs which otherwise would not have been created and, consequently, reducing unemployment”, providing a “stage on the way to permanent employment”, and helping achieve “ The optimal balance between the flexibility and protection of workers employed temporarily through the agencies.”
In pursuit of these lofty goals, Ciett urges the Russian Federation to ratify ILO Convention 181, the Private Employment Agencies Convention.
With these arguments, we leave reality behind and enter the realm of pure ideology. It is investment, not labour subcontracting, which creates jobs. The explosion of precarious work in recent decades has been accompanied by the growth of poverty, inequality, insecurity and a sharp decline in trade union organizing and bargaining power. These are the decades which have seen the temporary agencies take off globally, expanding their payroll, profits and lobbying reach. There is no compelling evidence to demonstrate that agency work is a "stage" on the path to permanent employment (or perhaps we just need more of it); on the other hand, we have massive experience of enterprises in every sector where precarious work, once marginal, has displaced direct employment and become the norm. IUF members, and workers generally, have yet to experience the "optimum balance between flexibility and protection” which Ciett is peddling.
Uses and abuses of Convention 181
Convention 181 seeks to regulate the operations of temporary employment agencies where they are either already operating or the legal basis for their establishment is under consideration. It is not a vehicle for promoting their expansion, any more than Convention 184 on Safety and Health in Agriculture is a blueprint for expanding the use of pesticides.
In the relatively short text of the Convention, there are no less than 7 specific references to the need for governments at every step to consult "the most representative organizations of employers and workers", beginning with the fundamental issue of determining "the legal status of private employment agencies." This "consultation" should presumably not be confined to back room lobbying and limited parliamentary debate, and clearly does not prejudice the outcome of the consultation. Unions at every level must be actively involved in decisions which can shape the fundamental elements of labour market regulation, and not be told that the discussion of "legal status" concerns the details only and not the fundamental issue of whether temp agencies should be allowed to operate on their territory. Exclusion is clearly an option.
Ciett should be called upon to visit Russian workers at their workplaces and explain the benefits of disposable jobs.
Moreover, the Convention explicitly states that governments, after consulting the representative worker and employer organizations, and under the terms of the Convention, may prohibit agencies operating with respect to "certain categories of workers or branches of economic activity." Countries as diverse as Belgium, Spain and Norway have at various times prohibited temporary agency work in agriculture, hotels, construction, "dangerous occupations" and the entire public sector. Should countries ratify the Convention, it is not a blank check for the agencies to invade each and every workplace, public and private – governments retain the right to impose prohibitions and restrictions.
The ILO and precarious work – work in progress
Since the employers are pitching their product in the name of the ILO, a closer look is needed at what the ILO is actually saying about precarious work and trade union rights.
ILO Conventions establish standards; equally essential is the jurisprudence which develops as Conventions are tested under real world conditions. Jurisprudence – the continuous elaboration of the meaning and application of standards under changing conditions - develops through workers struggle, including the struggle against disposable jobs. Recent decisions of the ILO Committee on Freedom of Association, in response to complaints brought by unions in Korea and Colombia, have determined that labour contracting, to the extent that it prevents workers from bargaining with the "user enterprise", the real boss, undercuts core Conventions 87 and 98 on freedom of association and workers' right to bargain collectively with their employer.
Subcontracting responsibility, shrinking bargaining power
The essential activity of the temporary agencies – and the most lethal – is defined in Article 1 (b) of Convention 181 as providing " services consisting of employing workers with a view to making them available to a third party, who may be a natural or legal person (referred to below as a "user enterprise") which assigns their tasks and supervises the execution of these tasks." This is precisely the mechanism through which the real employer, who organizes labour, assigns tasks, determines staffing levels and terms and conditions of employment, escapes all responsibility and prevents workers from exercising their rights.
Employing precarious workers through agencies is not only about cost cutting, though that is no small part. It is about shrinking, sometimes to the vanishing point, the size and therefore the power of the collective bargaining unit through which unions negotiate working conditions. Convention 181 affirms the right of workers to exercise their right to freedom of association with respect to their formal employer, the agency; with respect to the real employer, it has nothing to say. Freedom of association and collective bargaining rights under these circumstances are purely formal, because they cannot be exercised in practice. (see IUF tells UN precarious work is undermining human rights!).
This is why unions have increasingly been challenged to use their real bargaining power to negotiate agreements to sharply restrict the ability of employers to make use of agency labour. Sweden legalized private employment agencies in 1994 – and disposable jobs rapidly invaded the workplace. It took years of struggle, and a threatened national strike earlier this year, for the Swedish Foodworkers to win a national agreement which stipulates that temps can only be introduced after negotiation with the local union.
The omnivorous appetite of the temporary agencies means that the workers they dispatch cannot be treated as a distinct category in a sector of their own. They are increasingly present in all sectors. For this reason the global unions’ Joint Principles on Temporary Work Agencies insist that, among other measures, where agency workers are present they should be covered under the same collective bargaining agreement as other workers in the user enterprise.
Advancing the decent work agenda means rolling back, not adapting to, the continuous shrinking and dividing of organized bargaining power at the workplace. It is on this basis that Ciett and its supporters should be confronted and challenged when far-reaching changes to labour legislation are at stake – and when workers’ rights are fraudulently invoked.