By Jill Murray
The earlier series of posts about the concept of legal personhood, from the corpse to the refugee to the trustee, highlight the important role that law plays in defining and constructing conceptions of personhood, and the ways in which these conceptions shape and influence social systems, institutions and understandings.
The law of work is a prime example of this kind of legal process. At the heart of labour law is a set of definitions which construct and delimit our notions of work, employment, the worker, the employer, decent standards at work and so on. For example, the protections of labour law primarily focus on workers with a common law contract of employment, excluding those legally defined as ‘independent’ from minimum wage, hours and other protections.
Similarly, the law in various realms (including family law, taxation, social security, vocational regulation as well as labour law) sets a boundary around labour performed in the public realm, and domestic labour performed in the home. When a child-care worker hurts her back picking up a toddler, she is likely to be covered by the workplace law relating to health and safety, workers’ compensation and regulations relating to minimum staffing and training. When a parent hurts their back picking up their child in the family home, generally none of these legal systems covers the incident.
In 2011, the International Labour Organisation (ILO) created a Domestic Workers Convention (No 189), arguably extending the way in which the august body viewed and constructed notions of the proper subject for labour law. To understand this, it’s useful to take a quick look at the history of ILO Conventions.
For much of the twentieth century, the ILO Conventions echoed the Fordist model of production by presuming the paradigmatic subject of labour regulation was the male, standard worker employed in large scale enterprises. This ‘factory vision’ of labour is evident in the very first ILO Convention, that on the first Hours of Work Convention (No 1, 1919), as I have argued in Transnational Labour Regulation: the ILO and EC Compared (Murray, 2001). Those excluded by this vision were either absent from the corpus of rules, or sidelined from the protections contained therein. Non-European workers in the colonial states of the time were covered by their own heavily discounted rules, and non-standard workers who operated at the margins (workers who cleaned the factory at night, for example) were excluded from the new protections proposed by the ILO.
However, while this male standard worker was the sole subject of the ILO’s early regulatory focus, feminist activists pressured the ILO to recognise and deal with women’s work, and amongst the earliest Conventions was the Convention on Maternity Protection (No 3). The fact of this standard – that women who give birth should not automatically lose their jobs in order to give birth, but should have a form of paid leave to secure their position in the labour market – is important, but the content is indicative of a sharp gendered divide. This early Convention creates an entitlement to paid leave, funded by the state rather than the employer. This Convention effectively channelled international labour law relating to women into the realm of social security, away from the centrally important focus on national level trade union collective bargaining.
Fast-forward to the 1970s and 1980s, when massive social, economic and political changes undermined the Euro-centric, standardised employment model adopted by the ILO. Active efforts were made to re-orient the ILO’s methods and outputs, in part to recognise these new realities of working life, and in part to give effect to growing pressures of a neo-liberal ideology opposed to any extension of the ILO’s detailed labour rules.
Evidence of these competing pressures is seen in the so-called atypical work Conventions, including the Part-Time Work Convention (No 175, 1994) and the Home Work Convention (N0 177, 1996). These Conventions both extend the boundaries of international labour law and at the same time constrict or mute the standards which the ILO seeks to apply to these workers. The Home Work Convention (which covers outworkers performing their duties in their own homes) is in part so vague that it fails to set any standard at the international level other than in a symbolic way. While this symbolic effect is in itself important, and may itself lead to better outcomes for such workers, there is a marked lack of specific standards which the ILO requires to have the force of law.
The Domestic Workers Convention represents the latest development in this complex trajectory. It is a remarkable instrument because it explicitly extends the ILO’s reach to a group of workers often excluded from regulation. For this reason, the mere fact of the Convention’s existence is a victory for the ILO and the civil society groups which fought for inclusion of domestic workers. The Convention manages to overcome the regulatory problems said to be inherent in this form of work: the employer is a private individual, for some purposes the home cannot be construed to be a public workplace and the nature and timing of the kinds of work undertaken allegedly make it difficult to set standards. Dr McCann and I have suggested that this is not the case in our article on working time in domestic work.
But the fact of the Convention and its fruitful extension of the scope of international labour law is only part of the story. I am currently researching how these standards measure up against other ILO rules covering different kinds of work. Sailors and fishers, for example, share some common features with domestic workers, particularly where the domestic worker is an immigrant living in the family home of their employer. Like the sailor at sea, the maid must take the living quarters they are offered and a hazard for both is that their working time may totally permeate their lives. Both are at risk of being left stranded in a foreign country. Frequently, both need to remit parts of their income to family members living in their home country. In other respects, of course, the groups are totally different, particularly in relation to the organised collective strength of the workers. What I aim to show is how, if at all, the ILO convention-making process equalises standards across different vocational groups to take into account the similarities and differences. This work will tell a story about the trajectory of ILO standard-setting development, and the current state of play in relation to the gendered division of labour as it is influenced by the ILO.
McCann, D and Murray, J, ‘Prompting Formalisation through Labour Market Regulation: a ‘Framed Flexibility’ Model for Domestic Work’ (2014) 43(3) Industrial Law Journal 319
Murray, J, ‘Social Justice for Women? The ILO’s Convention on Part-Time Work’ (1999) 15 International Journal of Comparative Labour Law and Industrial Relations 3
Murray, J, ‘The International Regulation of Maternity: still waiting for the reconciliation of work and family life’ (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 25
Murray, J, ‘Taking social rights seriously: is there a case for institutional reform of the ILO?’ in C Fenwick and T Novitz (eds), Labour Rights as Human Rights (Hart Publishing, 2010)
Jill Murray, ‘Legal Personhood in International Labour Law: The Domestic Worker’, Law and Justice, 15 July 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)