#5_How to organize labour inspection best?

Compliance with labour standards is marked by a strange simultaneity of labour inspection’s formal stringency and of its practical failure. On the one hand, various international and national agencies are equipped with the formal authority of labour law to ensure proper working conditions on paper, on the other hand, countless scandals about violations are making endless headlines in the media of many countries. For example, in October 2019, the new European Labour Authority has been inaugurated. Specializing in cross-border work within the EU, the founding bodies have devised a program for the activities of the expected 140 people working in the agency for the years to come. For the 17 million EU citizens working in another member state than their home country, for millions of posted workers and transport workers, this move signaled a willingness to look more closely into their working conditions. Then, Covid19 came and brought to the surface poor working conditions in a wide array of businesses such as meat packaging, crop harvesting, transport, warehousing, construction and more; not exclusively, but often involving cross-border work.

Clearly, these violations are a sad reality for affected workers and their families and have broader implications and impacts for societies and economies (EU-OSHA, 2020). However, if it comes to the question about why labour standard enforcement is in such a bad condition and how it could be transformed to the better, academic literature is relatively silent. One reason for this is that studying the organization of labour inspection in international comparison and with an eye on transnational developments is still rare (but see Quinlan & Sheldon, 2011, European Agency for Safety and Health at Work, 2013).

Of course, drawing the big picture is difficult and no single answer applies to all circumstances for all sectors, industries and countries. But a deeper look into what is known so far about the organization of labour inspection reveals that there is very often a gap between rule-making and rule enforcement (International Labour Conference, 100th Session, 2011). Apart from outright misbehaviour of employing organizations, the mixture of causes contributing to this gap have been identified as follows: (1) low government priority as expressed in limited resources and low staffing levels assigned to labour inspection (if compared to the task to regulate millions of worksites), (2) a variety of internal organizational problems within the respective agencies and administrative bodies, and (3) a changing organizational landscape of contractual arrangements and the spatial distribution of work in value creation networks. On top come a rising velocity in technological changes in business firms altering production processes and work organizations as well as the well-documented weakness of unions and worker representatives in workplaces across the globe.

As far as the administrative problems are concerned, a recent study compared labour inspection between countries of different law traditions, broadly distinguished into those with a common law tradition and those with a civic law tradition. The study finds countries with a civic tradition, usually expected to have more stringent labour laws, fail in rule enforcement (as measured by a rough indicator combining the number of labour inspectors, fines issued and employees’ trust in the legal system) as compared to the common law countries (Kanbur & Ronconi, 2018). Although the measurement details might be subject to critique, of course, this finding is indicative of organizational failures such as fights over agencies’ jurisdictions, narrowly defined responsibilities, or bureaucratically slow procedures. But it is not only an issue of organizational failure within administrations and agencies themselves. Misguided strategy changes by “evidence-based”, new public management approaches (Walters, 2016) or chronically low funding also play their role. In an earlier study, for example, Weil presents estimates of the number of workers per labour inspector, calculated from ILO data for the years 2003-2006. In France, each of the 1,330 inspectors oversees 20,000 workers, in Germany 3,810 inspectors check for 10,000 workers each. In the US, with 75,000 workers per inspector the number is far higher and in countries like Mexico or Bangladesh the figures show astronomic “control” relations with one inspector for well over 100,000 workers (Weil, 2008, 352). Since then, nothing has happened which might have reversed this finding, on the contrary in many countries labour inspection has been under siege of neoliberal policies (Quinlan & Sheldon, 2011).

All in all, it is high time to take the ringing alarm bells seriously, and think about an organizational restart of labour inspection in the broadest sense of the term. There must be better, more effective and more sustainable responses to how labour inspection is performed. As far as the administrative side is concerned, Weil (2008, 2018) for example has already suggested to abandon a purely administrative policing approach, which responds to complaints raised, in favour of a “strategic enforcement”: “Strategic enforcement seeks to use the limited enforcement resources available to a regulatory agency to protect workers as proscribed by laws by changing employer behaviour in a sustainable way.” (Weil 2018) In such a strategic approach, agencies need to use triage and priorization for allocating their resources to those targets with the highest leverage. Agencies also are required to redesign their interventions with an eye on deterrence, i.e. altering the cost-benefit-calculations of potential violators. Labour inspection also should focus on sustainability which means to avoid “spotlight on and off”-situations and intervene with measures capable of changing the root causes of standard violations permanently. One important aspect of the latter is to use a systemic or context-sensitive approach that reflects on firms’ other organizational policies and practices. Especially in value creation networks and multi-employer work arrangement such a systemic approach includes going beyond the single core firm. As for the latter, a recent survey of the European OSHA shows that in 32 percent of all workplaces in the European Union, there are workers not on the payroll (e.g. subcontractors, temporary agency workers or volunteers), and in 43 percent of them there is work performed somewhere else outside the premises of the establishment (ESENER 3).

Thinking of labour inspection in terms of strategic compliance allows to open up the process to new collaboration and allies, also reflecting upon how work and employment is embedded in the wider societal space of local communities (e.g. Fine, 2017). Such a move brings more stakeholders to the table and widens the scope of an inclusive strategy process which may be better termed a strategic network approach. Of course, a strategic network approach to labour inspection includes workers and employers and their respective organizations, but also NGOS, the media and others (ILO 2017). In a sense, a strategic network approach builds upon recent expectations about the beneficial outcomes of a combination of various instruments and a policy mix of state intervention, voluntary initiatives, consumer groups’ pressure, and direct stakeholder dialogue and negotiations (e.g. Weiss, 2013). However, a strategic network approach does not obscure the leading role of state sanctioning in the area of administering labour inspection (Giuseppe Casale (ILO) on this issue) and the pivotal role of strengthening worker representation, direct voice and employee participation. To avoid the inherent weakness of mixed network settings, a strategic network approach requires a substantive strengthening of the labour administrations’ capacities as well as an increase in workplace democracy.

References
European Agency for Safety and Health at Work (2013). Analysis of the determinants of workplace occupational safety and health practice in a selection of EU Member States. Luxembourg: Publications Office of the European Union.
Fine, J. (2017). Enforcing labor standards in partnership with civil society: Can co-enforcement succeed where the state alone has failed? Politics & Society, 45(3): 359-388.
Kanbur, R. & Ronconi, L. (2018). Enforcement matters. The effective regulation of labour. International Labour Review, 157 (3): 331-356.
Quinlan, M. & Sheldon, P. (2011). The enforcement of minimum labour standards in an era of neoliberal globalisation: An overview. The Economic and Labour Relations Review, 22(2): 5-32.
Walters, D. (2016). Labour inspection and health and safety in the EU. HesaMAG #14, Special report, 12-17. https://www.etui.org/sites/default/files/Hesamag14_EN-12-17.pdf
Weil, D. (2008). A strategic approach to labour inspection. International Labour Review, 147(4): 349-375.
Weil, D. (2018). Creating a strategic enforcement approach to address wage theft: One academic’s journey in organizational change. Journal of Industrial Relations, 60(3): 437–460.
Weiss M. (2013). International labour standards: A complex public-private policy mix. International Journal of Comparative Labour Law and Industrial Relations, 29(1): 7-19.