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Download the file - United Nations Rule of Law

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forcement and, eventually, a redesign <strong>of</strong> labourinspection institutions.For informal workers outside formal enterprises,full compliance <strong>of</strong> labour rights as establishedby national legislation needs to be enforced. Thisshould go beyond <strong>the</strong> minimum floor, requiringeventually reforms to <strong>the</strong> labour legislation for <strong>the</strong>facilitation <strong>of</strong> compliance. Advances in this directionwould lead to full achievement <strong>of</strong> <strong>the</strong> DecentWork objectives.Unfortunately, not all employment relationshipsare explicit, where rights and obligationscan be clearly identified. Many workers areemployed under diffuse employment relationswhere <strong>the</strong> relation is hidden or where <strong>the</strong>re areproblems in <strong>the</strong> application or interpretation <strong>of</strong><strong>the</strong> law. There is need for additional policies todetermine if an employment relation exists and toclarify <strong>the</strong> responsibilities for compliance amongthose enterprises involving multi-parties. 52 Thelatter kinds <strong>of</strong> arrangements are continuing toexpand and are serving to decentralise <strong>the</strong> laboursystem in efforts, apparently, to reduce labourcosts. In <strong>the</strong> process, however, <strong>the</strong>y are <strong>of</strong>ten bypassinglabour regulations and collective bargainingagreements and eroding <strong>the</strong> power <strong>of</strong> unions.Interpretation <strong>of</strong> existing laws as well as newlegislation will be needed to regulate <strong>the</strong>se disguisedemployment arrangements, and to determinewhe<strong>the</strong>r an employment relationship existsand who is primarily responsible for obligationsto workers. This essential first step in movingtowards compliance should be followed by appropriatelyadapting labour laws and <strong>the</strong> labourinspection system. 53The situation <strong>of</strong> workers in informal enterprisesposes additional challenges, since <strong>the</strong> capacity <strong>of</strong>many informal enterprises to absorb <strong>the</strong> cost <strong>of</strong>compliance is restricted by low productivity andincome. 54 As employment opportunities could bedestroyed in such cases, a strategy is needed forincreasing compliance and promoting progressiveenforcement without legally adopting a dualsystem. An expanded minimum floor should, however,be enforced even in <strong>the</strong>se enterprises, sincecost concern cannot be accepted as an argumentfor non-compliance given <strong>the</strong> nature <strong>of</strong> <strong>the</strong> rightsinvolved and <strong>the</strong> fact that compliance does notnecessarily involve significant costs.Most standards require abstinence fromdiscriminatory or unlawful behaviour ra<strong>the</strong>rthan financial expenditure. A strategy could,however, recognise constraints where <strong>the</strong>y exist inaddition to <strong>the</strong> obligation to comply with a minimumfloor; basically, it should commit to gradualconvergence to full compliance and to verification<strong>of</strong> progress towards this goal. This also requiresadapting <strong>the</strong> labour inspection procedures andpractices to move from sanctions to training in<strong>the</strong> early stages and to progressive compliance,as recommended by <strong>the</strong> ILO in a recent paper. 55A broad category that deserves special treatmentis that <strong>of</strong> home work (production or service workin a worker’s home) and domestic work (housecleaning, cooking for o<strong>the</strong>rs). Included in thiscategory are significant numbers <strong>of</strong> workers. Workmight involve producing for intermediaries insubcontracting arrangements as well as selling orproducing directly for employers. There is also aconcentration <strong>of</strong> women and use <strong>of</strong> family workthat may involve children in <strong>the</strong>se activities.National labour laws do not usually cover domesticworkers; <strong>the</strong>y have no rights and little capacityto organise. Most are poor and experiencesignificant deficits <strong>of</strong> decent work. Employmentrelations, where <strong>the</strong>y exist, justify <strong>the</strong> application<strong>of</strong> rules covering o<strong>the</strong>r workers in <strong>the</strong> informaleconomy. The convention (177) and a recommendation(184) adopted by <strong>the</strong> International153

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