Would a global minimum wage counterbalance neoliberalism’s effect on employment and the law? This and other important questions were raised for employment law policy-makers by an interdisciplinary panel of legal and social science academics at a recent workshop on ‘Neoliberalism, Employment and the Law’.
Hosted by the Foundation for Law, Justice and Society in affiliation with the Centre for Socio-Legal Studies at the University of Oxford, the workshop was held at Wolfson College, Oxford in November 2015.
Participants examined the extent to which reforms implemented in recent years have been derived from a neoliberal agenda, as the question of how neoliberalism, as ideology and policy, has transformed employment law and employment relations.
Worldwide research, including studies from the UK, US, Canada, Israel and southern Africa, were used to demonstrate the causality current legislation has had on a myriad of working practices.
From the enigma of sub-contracting regulation to the suggestion of a global minimum wage, the workshop examined neoliberalism in its broadest sense – from its history, conceptualization and abstract definition –to its current and future effect on our norms, values and ethics.
The workshop, divided into three sessions, was framed on behalf of the Foundation for Law, Justice and Society by Dr Amir Paz-Fuchs, Senior Lecturer in Employment Law, University of Sussex and Associate Research Fellow, Centre for Socio-Legal Studies, University of Oxford.
Session One: The Effects of Neoliberalism on Labour and the Law: Two case studies
Guy Mundlak, Professor at The Buchmann Faculty of Law, Tel Aviv University, examined the contradictions in liberal reform and the labour regulation of sub-contracting.
Professor Mundlak outlined the legal problems, and the principle of residual responsibility associated with the triangular relationship between the worker, the (sub-contracted) provider of that service and the direct employer.
Although conducted as empirical research on temporary and sub-contracted workers in Israel, he argued that the study’s findings could be seen as a prophecy of what is currently happening worldwide in terms of employer liability and workers’ rights.
Deregulation and workforce fragmentation, plus the economic dependency of sub-contracted workers, makes workers less likely to stand up for their rights or jointly respond to any abuse of employment rights.
He concluded by asking what was the moral case for demanding direct employment; what the pragmatic case for direct employment was and what the strategy should be.
Judy Fudge, Professor of Law at the Kent Law School, University of Kent, examined Modern Slavery as a causal effect of the emphasis on human trafficking, anti-immigration and criminal law rather than employment law for migrant domestic workers.
Posing the question ‘how do we frame social harms?’ she outlined the problem of modern slavery as focusing on the criminal aspects, thus legitimizing other forms of exploitation.
She outlined research conducted in both Canada and the UK, citing examples such as strict visa rules which mean migrant domestic workers must reside with their employers for the first six months, thus opening up the possibility and opportunity for unseen exploitation and mistreatment.
Criminal, employment and human rights approaches were not, she argued, always complementary. She considered what a socio-legal account of the process of legal characterization that is attentive to political economy could offer to lawyers who argue that it is possible to invoke a range of legal tools to defend the rights of migrant domestic workers, including human rights and immigration controls.
Session Two: ‘History, Ideology and Conceptulisations’
Matthew Eagleton-Pierce, Lecturer in International Political Economy, SOAS University of London, examined neoliberalism from an international political economy perspective.
Dr Eagleton-Pierce looked at a wide range of uses of the term ‘neoliberalism’ and stated ‘it can sometimes appear as a kind of conceptual Swiss Army knife which can unpick and cut through almost any argument concerning the modern world’.
He explored the vocabulary of neoliberalism and its links between material restructuring, legitimacy and policy language. He revealed that there were 44 key terms associated with neoliberalism, including big concepts such as freedom and market, as well as buzz speak, corporate jargon and neutral terms such as reform, participation and flexibility.
He looked at what was new about neoliberalism; how processes associated with it have been justified at both macro and micro levels and whether neoliberalism vocabulary constitutes a particular capitalist vision of organisation and normative comportment.
In conclusion, he argued that while the term can be a useful organizing device in discussions on contemporary capitalism, it is also burdened by conceptual inflation and, therefore, its potential potency is weakened.
An extended version of Dr Eagleton-Pierce’s paper will appear in the soon-to-be-published book: K. Birch, J. MacLeavy and S. Springer (eds.), The Routledge Handbook of Neoliberalism (Routledge, forthcoming 2016)
Ewan McGaughey, Lecturer in Private Law, King’s College, London, looked at neoliberalism through the social ideals of the US Supreme Court.
Recounting a taxonomy of political ideology, he argued that, if theorists were taken at their word, neoliberalism has only ever existed in the pages of academic fantasy.
Dr McGaughey adduced that the ideal of neo-conservativism, rather than neoliberalism, was indeed workable and working in practice in the jurisprudence of the US Supreme Court but that the court’s enemy – the ideal of a corporation and the workplace as a social institution – is more robust than it thinks.
He cited three case examples of case law: the challenge to the legality of funding electioneering communication (Citizens United v Federal Election Commission); the subordination of employees’ right to health being dependent on an employer’s ‘religious freedom’ (Burwell v Hobby Lobby Stores Inc); and the case of employees being unable to bring age discrimination claims to court as the union had entered a collective agreement that bound them to arbitration freedom’ (14 Penn Plaza LLC v Pyett).
He concluded that the vast majority of people do not share either a neoliberal or a neo-conservative position but identify with a broader variety of personal experiences than can be transplanted into overarching ideologies. Single issue political parties are flourishing as collective identities diminish and many more people are choosing not to vote or engage in the political process.
Ben Jackson, Associate Professor & Tutorial Fellow in Modern History, Faculty of History & University College, Oxford University, discussed neoliberalism, labour and trade unionism.
Dr Jackson argued that the rise of neoliberalism to political power in many nations has resulted in a significant erosion of corporatist industrial relations arrangements and labour market regulation.
He examined how labour and collective bargaining, developed by neoliberals during their long years in the political wilderness, subsequently emerged as an influential policy discourse after the 1970s.
He questioned what was distinctive about the neoliberal understanding of labour and traced the various dimensions of this radical ideological innovation, encompassing neoliberals’ understanding of the economic relationship between trade unions and employment, inequality and inflation; of the distinction between the state and civil society; and ultimately the neoliberal attempt to dissolve the language of class altogether through the sponsorship of alternative discourses about ‘human capital’ and producer and consumer interests.
An extended version of Dr Jackson’s paper will appear in the soon-to-be-published book: K. Birch, J. MacLeavy and S. Springer (eds.), The Routledge Handbook of Neoliberalism (Routledge, forthcoming 2016)
Session Three: A Post-Neoliberal Future for Employment and Law
Richard White, Senior Lecturer in Economic Geography, Sheffield Hallam University, examined how we can value and harness alternative work practices in a neoliberal society.
Dr White challenged the negativity associated with neoliberalism as a label and argued that decentralisation of capitalism could be harnessed to help us think differently about social justice and empowerment in our everyday spaces and lives.
He said understanding the pervasive nature of non-commodified work practices promoted greater awareness around ‘alternative’, non-capitalist spaces within the advanced economies of the western world.
Drawing attention to the geographies of these alternative economic spaces, he said the aim was to consider how these work practices could be better framed, valued and understood in a more expansive economic ontology, so that they could be harnessed as a means of encouraging more empowered, inclusive and sustainable economic modes of production, exchange and consumption.
He gave details of his research into community self-help, in which he examined household work practices and local communities’ mutual aid exchanges, in both urban and rural settings, where goods and services were traded outside of the formal market and state, via unpaid or a ‘mutual aid’ basis.
The research revealed a variety of reasons for the labour and labour exchange which were often not monetary but for community collaboration and interaction.
In conclusion, he argued that a free society was about building and extending creative freedom wherever possible.
An extended version of Dr White’s paper will appear in the soon-to-be-published book: K. Birch, J. MacLeavy and S. Springer (eds.), The Routledge Handbook of Neoliberalism (Routledge, forthcoming 2016)
Jason Hickel, Fellow LSE, Department of Anthropology, focused on the question of the world’s labour inequalities, and presented a persuasive argument for a move towards a global minimal wage or basic minimum income.
He argued that the relative endowment of capital and labour in developing countries were not natural, but man-made, as the result of historical and political process.
Colonialism, the effects of the structural adjustment programmes imposed on the global South and the proliferation of bilateral free trade trade agreements were given as examples of processes that have all worsened wage equality.
But could a global minimum wage be the solution? Dr Hickel presented evidence of how it could work (set at 50% of each country’s median wage), if the political will was there. The Asian Floor Wage, a loose coalition of unions across countries in Asia, used mainly in the garment industry, could be seen as a viability ‘pilot’.
An alternative, already being successfully piloted in South Africa, Mexico, Namibia, Indonesia and other global South countries, was the basic minimum income.
Either potential solution, he argued, would have to be part of a bigger plan to reduce overall global consumption and for developed Western countries to ‘catch down’ to lower growth and consumption levels.
Critical analysis and discussion of the arguments were provided by Professor Mark Freedland, Emeritus Professor of Employment Law, and Emeritus Research Fellow in Law at St John’s College, Oxford, and by Dr Amir Paz-Fuchs.
Podcasts from this workshop are available to download.