The employment relationship

1 International Labour Conference, 95th Session, 2006 Report V(1) The employment relationship Fifth item on the agenda International Labour Office Geneva ISBN 92-2-116611-2 ISSN 0074-6681 First published 2005 The designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the International Labour Office concerning the legal status of any country.

2 Area or territory or of its authorities, or concerning the delimitation of its frontiers. Reference to names of firms and commercial products and processes does not imply their endorsement by the International Labour Office, and any failure to mention a particular firm, commercial product or process is not a sign of disapproval. ILO publications can be obtained through major booksellers or ILO local offices in many countries, or direct from ILO Publications, International Labour Office, CH-1211 Geneva 22, Switzerland.

3 Catalogues or lists of new publications are available free of charge from the above address, or by email: . Visit our web site: . Formatted by TTE: reference Confrep\ILC95(2006)\Report V(1)-2004-09-0068-1 Printed in Switzerland ATA iii Contents Page Introduction .. 1 Chapter I. The employment relationship : Overview of challenges and 3 Evolution of the discussion at the ILO on the employment relationship .. 4 The employment relationship and the law .. 6 The employment relationship and workers 8 Context of the lack of 8 Repercussions of the lack of 9 Uncertainty with regard to the law.

4 11 Closing the gap .. 15 Clarifying the scope of the law .. 15 Adjusting the limits of the legislation .. 15 Balancing equity and 16 Ensuring 16 Chapter II. Trends and problems in regulation: A comparative 19 The law and the employment relationship .. 19 Substantive definitions .. 20 Descriptive definitions .. 21 Parties to the employment relationship .. 22 Determining the existence of an employment 24 The principle of the primacy of 24 Determination by law.

5 26 Easing the burden of 28 Clarifying the scope of the employment 30 Defining the scope of the employment 31 Delineating the boundary between dependent and independent 33 The combined 35 Categorizing certain types of work .. 37 Extending the scope of legislation to equivalent workers .. 38 Developments in case law .. 38 Regulation of triangular employment 42 Who is the employer (the provider)? .. 42 What is the position of the user? .. 45 What are the worker s rights?

6 47 Compliance and 50 The employment relationship iv Page Chapter III. A new instrument: The basis and possible content of a Recommendation .. 53 Structure of the 54 Content of the questionnaire .. 54 Section I: Form of the international instrument .. 54 Section II: 54 Section III: Content of the instrument .. 55 Section IV: Other 58 59 Annex 1. Resolution concerning the possible adoption of international instruments for the protection of workers in the situations identified by the Committee on Contract 71 Annex 2.

7 Resolution concerning the employment 72 Annex 3. employment by status in employment and sex, latest 78 Annex 4. List of referenced legislation .. 85 1 Introduction 1. The question of the employment relationship will be examined according to the single-discussion procedure established in article 38 of the Standing Orders of the Conference. The Office has accordingly produced the present summary report on law and practice, which covers a broad spectrum of existing law and practice in more than 60 ILO member States across different regions and different legal systems and traditions.

8 The report provides a comparative analysis of the main developments and emerging trends based on a review of the legal texts, case law and other forms of regulation. It is accompanied by a questionnaire drawn up with a view to the preparation of a Recommendation. Governments are invited to give detailed replies to the questionnaire, on the basis of which the Office will prepare a final report in accordance with article 38, paragraph 2, of the Standing Orders of the Conference.

9 This final report will contain a draft Recommendation for consideration by the Conference. 2. In accordance with the provisions of article 38, paragraph 1, of the Standing Orders, the present report must reach governments not less than 18 months before the opening of the 95th Session of the Conference in 2006. In accordance with paragraph 2 of the same article, the final report must be communicated to governments not less than four months before the opening of the 95th Session of the Conference. So that the Office has time to examine the replies to the questionnaire and prepare the final report, governments are requested to ensure that their replies to the questionnaire reach the International Labour Office in Geneva by 1 July 2005, or by 1 August 2005 in the case of federal countries and countries where it is necessary to translate the questionnaire into the national language.

10 3. The Office wishes to draw the attention of governments to article 38, paragraph 1, of the Standing Orders, which calls on them to consult the most representative organizations of employers and workers before they finalize their replies. The governments replies should reflect the results of these consultations and indicate the organizations consulted. 4. This report is divided into three chapters as follows. Chapter I traces the evolution over the last decade of the discussions at the ILO on the employment relationship , including the discussions on contract labour in 1997 and 1998, the 2000 Meeting of Experts on Workers in Situations Needing Protection and the 2003 general discussion.