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Managerial LawVol. 48 No. 3, 2006pp. 288-302# Emerald Group Publishing Limited0309-0558DOI 10.1108/03090550610674653

Some lessons drawn from acomparative approach to theissue of the effectiveness of

labour lawPhilipe Auvergnon

National Scientific Research Centre, Bordeaux IV University,Pessac, France

Abstract

Purpose – The purpose of this paper is to discuss some lessons drawn from a comparative approachto the issue of the effectiveness in labour law.Design/methodology/approach – The paper discusses the consensus on variable ineffectivenessin labour law and describes some different ways of improving effectiveness.Findings – The issue of effectiveness is not specific to labour law. However, labour law seemsparticularly subject to ineffectiveness, due to the imbalance of power in labour relations, resultingfrom the inherent inequality of the parties. A comparative discussion necessarily explored the‘‘standard’’ issues of application, monitoring and, sanctions to deal with the ineffectiveness of labourlaw. The present debate particularly highlighted the problems in drafting and content of the law thatcontribute to non-compliance.Originality/value – The paper raises the following question: what effective labour law and forwhom?

Keywords Labour law, Laws and legislation

Paper type Research paper

The term effectiveness obviously does not derive from legal language per se, but ratherlegal theory or sociology of law. However, law specialists, who attach great importanceto words and the concepts behind them, cannot deny that the term has infiltrated legallanguage itself. Thus, article 13 of the European convention for the protection ofhuman rights speaks of ‘‘effective legal remedies’’; the 1961 European Charter, revisedin 1996, mentions the necessity to ensure ‘‘effective application’’ of a law, . . . similarly,the concept of ‘‘effectiveness’’ has appeared in European law, stating that a legalinstrument – e.g. the directive on European Works Councils – or its individualprovisions – must be interpreted specifically in terms of their effectiveness.

Other speakers did not worry whether or not the term effectiveness actually existedin legal language, but rather emphasised that ‘‘however great the gap between the ruleof law and social practices, dogmatic lawyers would normally ignore it, focusing theiranalysis on the norm alone and considering any deviation an offence’’. Debates leadingto the adoption of legal norms are generally only of interest to lawyers to the extent thatthey shed light on their interpretation, while the reality of industrial relations onlynecessitates their intervention in cases where there is an apparent infringement ofexisting law. The dogmatic lawyer’s scope of action excludes areas not specificallycovered by law, unless the issue is to confirm their illegality or determine that they are,in fact, within the scope of positive law (Filali, 2006a). Would it not be true to describethe ineffectiveness of law as a ‘‘fundamental socio-legal fact without which it isimpossible to understand, analyse, read, or explain the state of law’’ (Filali, 2006a).

For these reasons, legal specialists cannot avoid the issue of the effectiveness oflabour law. Some people may feel that this amounts to knowing whether a rule – or set

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of rules – is complied with, or not, but this would mean that the law is simply a set ofrules of conduct. The rules that compose labour law are frequently aimed, above all, atensuring that certain things happen, which is why it may establish relationships orsubjective rights. While the investigation into effectiveness seemed at first to includethe idea of a quantitative measurement of compliance or conformation with modelsconstituted by the rules, the aim was also to examine the quality of the rule or set ofrules. This approach is necessarily less quantitative, as, for example, it cannot bedescribed by strictly statistical measurements or, at most, it relies on these to explorethe causes of ineffectiveness and the conditions for better effectiveness – includingthose specific to the rule or set of rules.

While the issue of effectiveness is not specific to labour law, it has frequently beenemphasised that it seems to play a significant part in the specific identity of this branchof law (Javillier, 1981; Auvergnon, 1996), from the angle of the ineffectiveness ofprovisions that ‘‘seem particularly exposed to being ignored or deliberately flouted in aprivate space where the employer’s power is often imposed unilaterally’’ (Pelissier et al.,2004; Borenfreund, 1996; Grumbach, 2003). We must also remember the ambivalence oflabour law. The prohibitions and stipulations it contains are clearly concerned withprotecting people in legally subordinate work situations, but are also involved inregulating business and social affairs, organising the labour market and, thus, affectthe economy. We are well aware of the extent to which a number of labour lawprovisions have openly socioeconomic objectives, particularly those concerning theemployment situation and international competition. We therefore take note that thedebate may shift its focus from effectiveness towards efficiency of the norm – or evenconfuse the two. These issues are separate, even if they are obviously connected.

It is useful to remember that ‘‘the efficiency of a legal rule, a set of legal rules, or evena legal provision set up by these rules is measured by its aptitude to achieve the resultdesired by its author, or assigned to it by the social partners or an observer whoassesses this aptitude’’ (Jeammaud, 2005). However, while, in this case, efficiency isoutside the legal order, others consider that it is essentially a matter of making adistinction between economic or social efficiency outside and inside the legal system,the latter measured by its aptitude to cause legal effects (legal provision for invalidityof a document, conditions imposed on validity, etc.) (Sewerynski, 2005).

In any case, it should be noted that, in many countries today, people are very keen onevaluating legal provisions, although this is more often mentioned in speeches thanactually put into practice. Indeed, it is by no means easy to assess the efficiency of aspecific legal provision or rule – let alone an entire legal system! (Jeammaud andServerin, 1992). In particular, this would require identifying or agreeing on theobjective, then on ways of measuring its success or failure in achieving the desiredresult. This type of assessment procedure seems very unusual and, in any case,concern for the efficiency of the protection or rules varies in different countries: it ismanifestly a greater concern, for example, in Italy than France, where it may even beobserved that legal sociology surveys seem to be in decline[1]. Rules may be effectiveand efficient or effective and inefficient but effectiveness is always a necessary,although not sufficient, condition for efficiency.

How can effectiveness be identified? Of course, every time we ask ourselves thisquestion about a system of law or a law in particular, we would like to obtain a clearanswer, an instant ‘‘black and white’’ snapshot with no grey areas. However, thesituation is not as simple as that. Firstly, the phenomenon or practice of interpretationis not only involved when the text concerned is unclear – interpretation is an integral

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part of law itself. Furthermore, legal rules, particularly in social law, are by no meansthe only rules of conduct that define what is allowed or prohibited. Logically speaking,a rule that establishes a right simply cannot be ineffective, unless the issue is not itseffectiveness stricto sensu, but the effectiveness or otherwise of exercising theprerogatives attached to this right (Jeammaud, 1993).

In the end, the greater the conformation to the content of any rule, the greater itseffectiveness. It is the same in the case of poor knowledge or non-application of a rule,provided that the legal order reacts via the intervention of monitoring institutions toenforce compliance. Finally, some speakers examined the ineffectiveness of law byobserving practices where rights were waived, but it is important to remember thanwhen this waiver results from the application of other rules[2], it is incorrect to describeit as ineffectiveness.

Do we dare to observe to what extent labour law specialists may sometimesparadoxically be seized with doubt when faced with the following question: is theeffectiveness of labour law always desirable? Thus, for example and in a spirit offriendly provocation, how should we react to the conditions imposed by UK law on thefreedom to take collective action? While this freedom really exists, the trade unionshave to ‘‘sail close to the wind’’ to benefit from the immunity provided by law in cases ofindustrial conflict. The conditions imposed by law are such that, from a continentalEuropean standpoint, it is difficult to understand how industrial action can beimplemented. This does not prevent both the freedom and the law that restricts it frombeing effective! (Carby-Hall, 2006).

An international, comparative discussion[3] resulted in a consensus thatineffectiveness varied from one country to another (Section 1) and also that there werediverse techniques for improving effectiveness (Section 2).

1. Consensus on variable ineffectivenessIrrespective of normative situations and national controversies, the ineffectiveness oflabour law is generally analysed as being due to a singularly turbulent socioeconomiccontext (Section 1.1). However, both the ineffectiveness and effectiveness of labour lawundeniably have a quasi-geopolitical cultural dimension (Section 1.2).

1.1. Impact of a turbulent contextUnemployment is not the only factor that affects the socioeconomic context incountries around the world, but its impact on the effectiveness of labour law isgenerally considered a key factor and was mentioned in all the reports. To focus on asingle case: the unemployment rate in Argentina was under 8 per cent until the 1990s,then rose to 18 per cent and even reached 26 in late 2001/2002. Although it is nowaround 16 per cent, workers tolerate illegal situations, not making official complaintsunless their contracts are terminated. Collective action is difficult to envisage when it iscertain to have a negative impact on salaries and probably also on jobs. In Argentina,as in many countries, labour inspectors report that employees ask them not to inspectthe companies where they work (Goldin, 2006).

Job insecurity and a sluggish job market dissuade workers from complaining ofinfringements of their rights and employment conditions. While the difficulties ofcompanies in highly competitive situations are often mentioned, we must also be awareof the increased competition between workers. This is sometimes governed by law, butnot in cases of concealed work, when the informal sector grows to such an extent that itinvolves over half the working population, as is the case, for example, in Turkey and

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Morocco (Sur, 2006; Filali, 2006b). Some speakers felt that the informal economy was‘‘not the cause but rather a result of ineffectiveness (Goldin, 2006)’’, citing the exampleof Argentina, where the informal labour market has grown from 20 per cent in the1980s to an estimated 48 per cent today. The development of this ‘‘informal sector’’ isnot due to the fact that employers are afraid that applying labour law will cost them toomuch, but rather that tax evasion generates income that (unless it can be laundered) isnecessarily reinvested in the grey economy. While there may be various causes indifferent countries, informal work is not a problem specific to South America, Africa, orthe Middle East, but actually represents from 30 to 50 per cent of the labour market inthe new European Union member states.

Some speakers emphasised that the ineffectiveness of labour law was due to astructural factor in employment relations: subordination (Weiss, 2006). This was why,particularly when a country had a high unemployment rate, employees in asubordination relationship did not apply to the courts in case of problems with theiremployment contracts. At best, they applied to personnel representation bodies insidethe company, or trade unions inside or outside the company The lack of resources andspecialisation of regional labour inspection systems in Germany made it impossible tosee them as a channel for redress, whereas in countries like France, besides applyingnorms, the labour inspectorate processed individual requests for information andadvice, and even intervened informally in disputes with employers. These ‘‘individualrequests’’ were becoming increasingly important due to the breakdown of internal staffrepresentation mechanisms and the low level of unionisation.

The ‘‘fuzzy demarcation line’’ and grey area between employee and independentworker status were also a source of ineffectiveness in labour law, as they either resultedin an intermediate status only entitled to partial protection under labour law(phenomenon of parasubordinati in Italy), or deliberate avoidance of the application oflabour law when subordinate workers were camouflaged as autonomous orindependent workers. One phenomenon observed in Poland, but perhaps notspecifically Polish, was a transfer of labour relations into the sphere of civil law(Sewerynski, 2006).

One aspect of the turbulent context that exacerbates the ineffectiveness of labourlaw is the fact that work is becoming increasingly unpredictable (type of contract,types of tasks, variable workloads, etc.) and some dematerialised work is governed bythe ‘‘sort it out yourself’’ principle. The very concept of a company has undergoneradical changes. It is impossible to understand modern production systems withoutintegrating outsourcing, subcontracting via networked companies, and the currentimportance of increasingly international production networks.

There have been parallel changes in social norms. Certainly, especially incontinental European countries, there are still laws, decrees, collective bargainingagreements, and employment contracts, as well as ‘‘corporate charters’’, ‘‘codes ofconduct’’, technical norms, ISO quality standards, etc. This results in a widespreaddiversification of norms and the appearance of frequently hybrid normativeinstruments, of uncertain legal standing, that undeniably act as practical guidelines.

For example, it is interesting to consider the proliferation of American multinationalagreements concerned, at least partially, with work (Verge, 2006). There are certainsimilarities, particularly the commitment of signatory countries to apply their ownnational law, but also differences or divergences: some American (USA) agreementsinclude commercial sanctions, while others (Canadian) remain relatively close totraditional international public law, envisaging ‘‘appropriate measures in case of

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non-application’’. What type of agreements are these? Is the aim to protectinternational trade or workers’ fundamental rights?

Over the past quarter-century, there has also been a significant development,singularly in continental Europe, of more procedural than substantive law. Proceduralnorms, provided there are the right players to implement them, appear easier to rendereffective than more substantive provisions, which more obviously lend themselves tomeasuring the gap between normative expectations and social practices.

Economic transformations, with their inevitable restructuring, staff compression asthey sometimes say in Africa, carried out in a context where sources of law (overridingnorms, challenges to the public social order, diversification of levels and players incollective bargaining, . . .) are relatively disjointed, provide a favourable context for thedevelopment of forms of collusion between employers and employees to act (together)against the law. On this issue, certain corporate agreements in Germany were reportedto guarantee jobs in return for the non-application of awkward provisions or areduction in the salaries determined by collective bargaining agreements on a sectorallevel. Theoretically (legally), it would be possible to go to court to prove the illegality ofthis type of agreement but . . . nobody does that: neither the employer, of course, noremployees, nor even the works council, at the risk of losing their electorate . . .

1.2 A quasi-geopolitical cultural dimensionThe ineffectiveness of a particular legal provision may indicate that the norm inquestion lacks legitimacy, but there are huge national differences. To give one example,while laws are certainly the norms with the greatest legitimacy in France, collectivebargaining agreements are more universally recognised in northern Europe. Thecultural dimension of the ineffectiveness or effectiveness of labour law was, in any case,one of the main points revealed by the comparative discussions.

A certain resistance to social norms may be due to the existence of a culture of non-observance, a deep-rooted habit of circumventing the law, considered a source ofunnecessary costs and restrictions. This culture – or counterculture – is alleged to existin Portugal, as well as in several other European countries. It is due, in particular, to theweakness of industrial and trade union traditions, combined with the slowdevelopment of a democratic civilisation (Monteiro, 2006). Elsewhere, as in Argentina,emphasis was placed on the weakness of social culture, leading to sudden reversals insocial policies, changing from interventionist to non-interventionist, more governmentto less government, and centralisation to decentralisation, without distinguishingbetween ideology and possible practical solutions (Goldin, 2006).

Generally, contextual variables have a decisive impact on ineffectiveness. Forexample, to understand the ineffectiveness of social law in Argentina, it is necessary tobe aware of the weakening of social law norms in the past, as well as a South-Americanphenomenon consisting of putting more emphasis on stating law than putting it intopractice. This sort of blanket criticism must, of course, be tempered by taking thedifferences between the various South-American countries into account. Thus, it issometimes felt that the superb Labour Code in Paraguay has never really been applied,while in Uruguay, where there are basic legal rights and case law plays an importantrole, labour law varies mainly according to the conventional law applicable in eachcase. Although, in Brazil, the law does not always seem tied to reality and is onlyconcerned with certain areas, this should not be seen as a South-Americancharacteristic, according to a Brazilian lawyer, but is rather ‘‘the problem of anycountry that is short of money’’ (Lapa Wenderley, 2005). As far as Argentina is

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concerned, the situation is considered revealing of a country ‘‘that tends to live on thefringes of the law’’ (Goldin, 2006): there is a real problem in accepting and believing inthe law. There is a widely-held idea among employers and workers alike that it issometimes legitimate to act against or outside the law (Goldin, 2006).

Unsurprisingly, the ineffectiveness of labour law is also a phenomenon in Asia!However, in this case, cultural variables are sometimes put forward as an explanation.For example, in Japan, the non-application of certain aspects of regulations on workinghours was cited, and explained as being due to the behaviour or attitudes of employees,who perceived their company as a community where management and employeesshared ‘‘advantage and risks’’. One of the rules within the community concernedovertime. The employees thought that working free overtime would be to their ownbenefit in the long term. As a result, there were very few complaints for unpaidovertime (Iwamura, 2006).

In any case, the socio-cultural aspects of the ineffectiveness of labour law must betaken into account and approached with caution. Ineffectiveness does not necessarilyresult from the same factors in northern and southern countries, or even in differentsouthern countries. In these countries, some may feel that the continued or evengrowing ineffectiveness of labour law must be understood against the historicalbackground of a legal system imposed by a colonial power and the development ofcapitalist-type businesses. This modern law only affects a limited reality, i.e. themarket economy, and the foreign population brought the modern legal system withthem (often solely for their own benefit). It then developed according to one of twomodels. In the first model, this new law brought in from outside made a distinctionbetween fields of application rather than linking modern law and traditional rules. Inthe second case, the new law was declared applicable to everyone, although it onlyinterested or was actually applied to a minority.

In the case of Morocco, the two legal systems operate side by side, resulting in legalpluralism. Following decolonisation or independence there was a tendency to extend orgeneralise the modern legal system, which was appropriated by the new leaders. Thesplit in former times was camouflaged by the official generalisation of modern law butthe socioeconomic reality has remained the same or even worsened. The dualityresulting from normative pluralism has become a duality of law and reality (Filali,2006a,b).

Globalisation has led to a renewed and increased interest in the issue of theineffectiveness of labour law in certain southern countries. These countries’ increasinginvolvement in international trade has led to greater awareness of the inadequacy oftheir regulations, which have enabled them to develop practices regarded by others associal dumping. The social clause that began to be discussed was rejected by thedeveloping countries, who saw it as restricting their development potential. Followingthe failure of this formula, the international labour organisation (ILO) declaration onFundamental Social Rights in June 1998 represented a major step forward. The mainaim of the declaration was not to obtain ratification (even if it has had this effect), norsimply to develop normative compliance, but rather the effective implementation of afew basic principles, taking care that they are applied solely in the field of internationaltrade (Servais, 2004, 2006).

There are, however, several types of developing or emerging countries (Goldin,2006). Care should be taken not to generalise explanation and speeches calling forminimalist law corresponding to the minimum applicable to everyone. The law needschanging in certain countries, while, in others, ‘‘society needs working on’’ and it is

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necessary to continue ensuring that law plays a full role in promoting a new reality(Goldin, 2006).

The basic issue is the relationship with law in all its diversity around the world,which regularly interferes with the effectiveness of labour law. Thus, it should beremembered that, while in the US people easily initiate court cases, in the Far East, forexample, people detest open conflict and try to avoid legal proceedings, preferringconciliation wherever possible (Servais, 2006). The state’s theoretical and actualposition in labour relations is also a cultural variable – we will not stop here to examinethe ‘‘French example’’! Similarly, in some countries, a set of miscellaneous socialbenefits may be considered part of a country’s specific identity (Servais, 2006).

Under such conditions, how can the ILO apply the same norms to countries withtotally different economies and cultures? If we do not want ‘‘sub-norms for sub-humans’’, the same norms must be applicable to everyone. However, at the same time,there must be – and there are – techniques, formulas and clauses to provide thenecessary flexibility to allow for this diversity. This is why some states are allowed toratify only part of certain norms or exclude certain categories of workers from thescope of application, via such mechanisms as equivalency clauses, generally expressedas: ‘‘circumstances permitting’’, ‘‘to the extent that the government. . .’’, etc.

While some effort has been made, the problem persists. There is, above all, aconstant difficulty in determining to what extent cultural differences should be allowedfor and when we should avoid understanding certain governments’ points of view (e.g.on the issue of freedom to unionise, etc.). To what extent is it possible to defend‘‘exceptions on cultural grounds’’? This sometimes depends on the legal system andlabour relations in the country, for example, it is undeniable that freedom to unionisecosts employers a lot of money in the US, which is not necessarily the case elsewhere . . .

Everyone agrees that there should be a common ethical framework, but things veryquickly become more complicated when the actual content is at issue. Generally, thereis no difficulty (officially) with prohibiting child labour or discrimination, . . . butfreedom to unionise is more problematic . . . One possibility suggested today is todevelop recommendations or soft law covering everything and everyone . . . but: ‘‘it iseither soft, or law’’ (Servais, 2006).

It has been suggested that three types of basic norms are required to allow fordiversity, particularly on cultural issues, as well as achieving a certain effectiveness, oreven efficiency of international norms. Between the norms confirming fundamentalrights, such as those covered by the ILO Declaration of 1998, and operational norms innational legislation, there should be framework norms that set objectives withoutspecifying the means to be used to achieve them (e.g. norms in Canada and Japan onemployment, vocational training, labour relations, etc.) (Servais, 2006). However, toensure the effectiveness of this type of framework norm, it is, of course, essential tomonitor the application of fundamental rights and, in particular, trade unions andemployers must enjoy real freedom.

While the existence of international provisions is important for the application ofnational norms and compliance, it was emphasised their impact depended on theireffectiveness. Similarly, on a regional level, the issue of monitoring the effectiveness ofEuropean social law was also raised. Effectiveness was considered variable dependingon the issue (Dispersyn, 2006). While European social law stricto sensu (regulationsand directives concerning the free circulation of workers, the coordination of socialsecurity regimes, or equality) had effective monitoring mechanisms, this was not trueof the ‘‘European social policy’’ (Dispersyn, 2005). Some speakers emphasised that

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‘‘there had been little practical study of the effectiveness of European law’’ while‘‘integration of European standards in the ten new European Union countries mobilisedhuge amounts of energy in the decade from 1994-2004’’ (Julien, 2006; Schomann, 2006).The European Union apparently shows very little interest in the effectiveness of certainsocial norms, given the difficulty in obtaining their transposition into national law . . .Monitoring the application of national law is often reduced to ‘‘redress for breach ofprovisions’’ as, in fact, there are huge disparities in national transposition. In anapproach concerned with the interests of corporate management, there are additionaldifficulties ‘‘when European legislators attempt to draft texts that are too specific andprescriptive, they are incompatible with national culture and practices’’ (Julien, 2006;Schomann, 2006).

Other speakers particularly emphasised the development of new regulatorysystems requiring other ways of monitoring effectiveness, on a European level.Although the European strategy for the convergence of social protection objectives andpolicies, adopted by the Council of Europe in 1992, only had formal content, thecoordination strategies for later policies have been more definite and have clearly givenbetter results. This was the case of the European strategy for employment and the opencoordination method. In both cases, effort has been made to transpose Europeanguidelines into national policies and monitor them regularly, although the findingshave no legal impact . . . while all this certainly contributes to a ‘‘Brussels culture’’, is itseriously possible to describe it as monitoring effectiveness?

The social partners are also responsible for producing European norms. Onquestion was whether the social partners monitored the industrial or sectoral normsproduced by their negotiations? Are they concerned with the effectiveness of theproducts of European social dialogue? Some admitted that, although the texts adoptedprovided for monitoring procedures that were ‘‘just as good as those for Europeandirectives’’, as none of these text has reached the end of its life expectancy, ‘‘it would beunfair to assess their effectiveness’’ (Julien, 2006; Schomann, 2006).

2. Different ways of improving effectivenessWhile many observations concerning the ineffectiveness of labour law were common toa number of countries, analyses of effectiveness and proposals for improving it werefrequently divergent. In one way, referring to Hans Kelsen, we admit that, ifeffectiveness does not result from spontaneous compliance with the norm, it must bepromoted by monitoring and penalties (Section 2.1). Another tendency that is clearlytaking on importance is the law’s share of responsibility for improving effectiveness(Section 2.2). A certain perplexity concerning the future of labour law was discernablein the ‘‘vagueness’’ of discussions on effectiveness. It is undeniable that this providesnew grounds for publicly criticising real or assumed irrelevancies of labour law.However, we must start by insisting on the need for real controls.

2.1. The need for real controlsReinforced sanctions and institutions for monitoring the application of law inside andoutside companies are expected to enhance effectiveness. The measures traditionallyproposed include reinforcing the physical and human resources of labourinspectorates, simplifying judicial procedures, and implementing alternative systemsfor settling disputes. However, at the same time, perhaps to further justify reinforcingcontrols, the assessment of these measures is frequently rather gloomy. Thus, inPoland, for example the judicial system is partly responsible for the ineffectiveness of

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labour law, as legal proceedings take a long time and produce disappointing results, sopeople prefer to put up with their work situation rather than lodge a complaint(Sewerynski, 2006). In Turkey, the slowness of the judicial system also discouragespeople from taking legal action to enforce compliance with the law[4]. In many cases,the theoretical importance of the labour inspectorate was contrasted with theirweakness in practice, especially due to manpower shortages. We were also informed ofchanges in the context governing labour inspectorate interventions, particularly inEuropean countries (Triomphe, 2006). What consequences must we draw from thesechanges in production organisation, in terms of government control? Work inspectionsystems have been shaped by their backgrounds, but how can they respond to today’schallenges, and take new normative and productive realities into account? Concerningthe situation in Europe, it is regrettable that there is not even any coordination oflabour inspection on a European level, despite the existence of common socialdirectives (Triomphe, 2006).

The challenges of work inspection systems, particularly those with a general scope,are perhaps also due to changes in relations among the traditional parties involved(employers, trade unions, employee representatives) as well the emergence of newplayers (single employees, Non-Governmental Organisations, environmental andconsumer associations, etc.). For example, the labour inspectorate in Poland currentlyreceives ‘‘no cooperation from the trade unions’’ (Sewerynski, 2006), while in Spain,‘‘most workers today do not want to lodge a complaint or act as witnesses duringinquiries’’ (Ballester, 2006). It was frequently emphasised that labour inspectors werereluctant to envisage certain penalties as they felt they would be unbearable for thecompany concerned. Thus, in Quebec, ‘‘you cannot count too much on the labourinspectorate. . .’’ (Verge, 2006). On the other hand, in Japan, the importance of the labourinspectorate in ensuring the effectiveness of labour law was highlighted. Japaneseinspectors monitor application of the law concerning labour norms and implementingorders, as well as those on health and safety at work, minimum wages, guaranteeingthe payment of unpaid wages, work at home, insurance coverage for industrialaccidents and work-related diseases, . . . they have very standard powers to entercompany premises, obtain corporate documents and interview employers andemployees, as well as police powers in case of criminal offences (Iwamura, 2006). InTurkey, the labour inspectorate is ‘‘the cornerstone of government monitoring in thesocial field’’ (Sur, 2006). It is a hybrid work inspection system, between the northernEuropean model (UK, Germany, etc.) specialised in health and safety at work, and thegeneralist model, present with variables in Spain, France, north African countries, etc.).In Turkey, there are two types of inspectors: one branch in charge of general work-related issues in firms and the other specialised in health and safety at work. Inparticular, as Turkey has ratified ILO convention n� 81, the Turkish definition of thelabour inspectorate clearly includes the functions and authority of a work inspectoratesystem and its fundamental role as an agency for industrial peace (Sur, 2006).

As it is closely related to the activities of labour inspectors and judges in industrialtribunals, the issue of penalties is traditionally central to discussions on theeffectiveness of labour law. However, we are obliged to observe – under the influence ofthe liberal context and pervasive conformity! – that labour law specialists around theworld today hesitate to show any great interest in the issue of penalties, although theirvery existence provides significant leverage for legal compliance, whether they areapplied or simply threatened. Some speakers specified that, in any case, ‘‘theeffectiveness of labour law will not be improved by tougher penalties – even if they are

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necessary! – but by economic growth and effective employment policies’’ (Goldin,2006). This led to a general discussion of criminal sanctions. Japan is apparentlysomewhat of an exception, as criminal sanctions continue to have a dissuasive effect(Iwamura, 2006). In Spain, there has certainly been a trend towards the criminalisationof some aspects of labour relations (e.g. harassment) but, as the presumption ofinnocence is also very strong, it is difficult for criminal sanctions to be effective(Ballester, 2006). Criminal sanctions are sometimes criticised as inefficient in providingcompensation for victims of the offences. However, this is not the purpose of criminalsanctions (Lyon-Caen, 1984) but rather that of civil penalties (Grevy, 2001). Thepractice of attaching criminal sanctions to provisions in labour law, prescribing prisonsentences that are never applied, is certainly debatable. However, it is still up to societyto define acceptable and unacceptable behaviour, in spite of claims that social normsshould be produced as needed, in kit form, by users alone to suit their interests at agiven time.

Alongside this latent criticism of criminal labour law, many politicians haveshown a real determination to ensure the efficiency of social norms via thedevelopment of administrative sanctions. The monitoring bodies then have their owntools for enforcing immediate compliance or applying effective financial sanctions tocompanies that refuse to negotiate compliance, without relying on the goodwill orpossibilities of a judge. These sanctions are, of course, subject to administrative andjudicial appeal. A clear increase in the application of administrative sanctions wasnoted in Turkey, while this system works well in Spain and is the subject of in-depthdiscussions in France.

Finally, in several countries, the contribution of various internal bodies withincompanies, including staff representatives, to the effectiveness of labour law was noted.This was the case of works health and safety committees, doctors and medical services,as well as engineers and technicians in charge of safety at work in firms with over 50employees, particularly in Turkey (Sur, 2006).

While the de facto disappearance or de jure of absence of trade unions from privatecompanies was sometimes reported, especially in Poland (Sewerynski, 2006), in certaincases trade union representatives played a significant role in monitoring legalcompliance (Sur, 2006). The impact of the trade union system on the effectiveness orineffectiveness of law or specific rules was emphasised by some speakers (Goldin,2006). In Argentina, although are approved or representative trade unions may bepresent in companies, they started outside the workplace and have not really movedinto it, apparently feeling that companies are the sole province of employers, andpreferring to act in other fields (Goldin, 2006). This phenomenon is apparently commonin national systems where, historically, trade unions were very closely associated withthe state.

2.2. The law’s share of responsibilityThis debate on effectiveness raises, even more openly today than in the past, questionsconcerning this branch of law, especially from the point of view of changes in certaincountries. The first of these questions is certainly ‘‘politically incorrect’’ but none theless real: ‘‘what effective law for the benefit of whom?’’ (Ichino, 2006). Is labour law onlyeffective for a particular group of workers, who are in fact well-protected, while it isonly marginally beneficial to others – if, indeed, it does not legislate the precariousnessof their jobs and rights? Taking the Spanish example, the main problems ofeffectiveness or ineffectiveness are apparently concerned with the high proportion of

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fixed-term contracts on the one hand, and immigration on the other. In a discussionof effectiveness, should we not start by inquiring into the true scope of application butalso the influence of labour law today? (Ballester, 2006).

The Spanish situation, like that in other countries, can be imagined as a series ofconcentric circles around a core of workers who are really protected by labour law andsocial law in general (Ballester, 2006). These circles are interdependent anddynamically interrelated. This core of protected workers shares a characteristicdependence or subordination, as well as a certain separateness from the risks of thecompany. These protected workers continue to receive their salaries independently ofthe company’s business or financial situation. This category of employees is becomingsmaller and smaller as employers try to avoid applying the expensive provisions oflabour law. While the concept that the situation of certain employees is notalways dependent on the company’s financial situation is accurate, there may,however, be some difficulty accepting the old idea propounded in university lawcourses that employees, unlike their employers, do not run any financial risk. Corporateexecutives who make decisions on relocations or layoffs dictated by the stock marketsrarely experience the joys of unemployment that they impose on their formeremployees, who often had permanent contracts and had spent quite a few years in thefirm.

Another category consists of workers outside the scope of labour law as they areactually or theoretically independent. In Spain and Italy, for example, there is nointermediate status between salaried and independent workers, but these autonomousworkers have access to some labour law provisions, usually concerning the type ofsocial coverage they may have and their capacity to organise themselves or join tradeunions.

The third circle of workers, including those with insecure jobs, benefit from lowgrade labour law (Ballester, 2006). We heard how, in Spain, following several reforms ofworker status that resulted in the existence of a double labour market, special fixed-term contracts were introduced in 1997 to reduce job insecurity. Finally, the fourth andlast circle, farthest from the protected core, consists of non-existent work, the invisiblework of illegal workers, who may be local or foreign, ghostly participants in theunderground economy, who sometimes alternate illegal and legal jobs, as well as illegalimmigrant workers.

Another approach led us to examine failures to update law. One example is the caseof Poland, where a Labour Code dating from 1974, i.e. the communist period, remainedin force for over 30 years. It was certainly modified several times but never completelyoverhauled to reflect changes in the socioeconomic and political situation (Sewerynski,2006). Social reforms were generally criticised for being isolated, carried out in anemergency, under pressure from a lobby, or following a change in governmentalmajority. In some cases, it was by no means clear that law was enacted to be effective,but seemed rather to be intended to attract media attention or respond to a passingpolitical controversy, especially as some normative statements had the advantage ofhaving no practical impact.

Some speakers felt there was hope for greater effectiveness in law enacted to reflectsuch realities as the size of the company, as most businesses are small or even verysmall Others felt that legal compliance could be improved by developing lawsnegotiated by users, i.e. social partners (Swerynski, 2006). In any case, the process forproducing rules should make it possible for the social partners to take ownership of thenorms (Sur, 2006). However, it is impossible to ignore the fact that the social partners

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are described in most countries today as increasingly weak, lacking in experience,training, and know-how, particularly on corporate level. The issue, not only of access toknowledge but also of educating the social partners in labour law as well as,sometimes, labour inspectors – or even judges! – is regularly raised as a means ofmaking the law more effective. However, in recent times, it has been said that: ‘‘ifexisting law is not applied, it is because it is not efficient’’ (Sewerynski, 2006), withoutconsidering whether the inefficiency does not rather lie with the institutions formonitoring application of the law (work inspectorate, labour tribunals, institutionsrepresenting the personnel)[4].

It should also be remembered that there are existing conditions intrinsic to law thatenhance its effectiveness: a norm can only be imposed in the long term if it reflectssocial, economic, and cultural realities, particularly industrial and trade union practices(Verge, 2006). One of the major challenges for labour law today is its capacity tointegrate the issue of fundamental rights irrespective of age, gender, or ethnicbackground, etc. It should also take into account more fully the general phenomenon ofthe breakdown of traditional corporate organisation (real perimeter of the companyconcept of employer, etc.). However, the widespread idea that formal elements(simplicity, legal clarity, etc.) have an impact on the effectiveness of law was rejected bysome participants, who felt it was only a marginal source of ineffectiveness (Verge,2006). The most important factor was that: ‘‘all law should express a real policy and besupported by key players, such as trade unions or non-governmental organisations,etc. (Verge, 2006)’’.

However, behind all these lengthy discussions of the conditions for developinglabour law and its practical content as variables affecting its effectiveness, is notthe real problem to issue rules that match the possibilities of companies so they arecapable of applying them? It is clear that the law must be related to social, economic,and cultural realities, but is its only purpose to fit reality ? Should we not be worried atthis new evidence of the myth that law should be adapted to suit the facts’’ (Atias,1977)?

Such a demand to subject labour law to the possibilities or needs of companies mayarise out of a sincere desire to preserve it, especially in a system which has allowed civillaw to manage work and labour issues, as is the case in Poland. It may also be the laststep on the downward slope to the end of labour law as we know it. It is thus possible towonder whether the central debate on the effectiveness of law has not become today,quite simply, that of its economic and social usefulness (Monteiro, 2006). It is true thatthe ‘‘trial of labour law’’ that started almost a quarter-century ago seems, at least tosome observers, to be coming close to a final verdict. We are not longer at the stage ofdenouncing the anti-business character of social law, as a vector for introducingeconomic malfunctions into the free market. It does not matter that rules are necessaryfor the market to exist at all. We have come to the point of provoking a social rejectionof labour law norms, considered counterproductive in terms of jobs and corporate life,and their relative ineffectiveness is simply an indication of their inappropriateness.Taken to its logical conclusion, this would indicate the necessity to eliminate all theselaws as they are harmful – first and foremost for those they are intended to protect, i.e.the workers.

These social norms seem to be directly or indirectly costly[5] for all parties andsome speakers even felt that certain infringements were understandable, in order topreserve the vital interests of companies and workers. From this point of view, aneconomic analysis of the law would provide ‘‘many illustrations of assessing the

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consequences of compliance with norms according to a cost/benefit approach[5]’’.However, others felt that it was important for legal specialists to use the findings ofeconomic research to draw up and produce law, in order to maximise its effectiveness(Ichino, 1998, 2006). While, generally, it was agreed that legal specialists should bemodest and admit that issues may be resolved via a multi-disciplinary approach, wasthere not a risk that law would become subject to the imperialism of economic sciencealone. We could retort that, although economists hold diverging opinions, there arepoints on which ‘‘both left- and right-wing economists say the same thing’’ (Ichino,1998, 2006). as is the case of job insecurity, irregular work, unemployment, andincreased protection from unemployment An economic approach would not necessarilyfocus analysis on the gross national product or corporate interests – some economistswould consider the usefulness of the norm for human beings . . . Refusing an economicanalysis of law would be as hypocritical as defending labour law without consideringthe interests it serves, i.e. today, it is focussed on a specific group of workers, whereastrade union organisations claim to defend and represent all workers (Ichino, 1998,2006). It could be remarked that the blind spot of an economic analysis of law is that itdoes not show employers as players who, in a capitalist system, naturally try tomaximise profits.

In any case, besides repeated, sometimes justified, complaints that the law isunstable and complex, often too heteronomous to allow for practical situations,discussion on the effectiveness of labour law today takes place against a background,not only of the standard challenge that law is anti-economy but also, more perniciously,that it may even be anti-social. One implicitly or explicitly suggested compromise thatis very annoying to lawyers (Ballester, 2006; Filali, 2006a,b; Ichino, 2006), who areattached to the protective, progressive nature of labour law, is that the solution shouldbe qualitatively less protective but quantitatively more effective law. We must simplyreaffirm the need not to give up benefits we have for theoretical advantages.

3. ConclusionThe issue of effectiveness is not specific to labour law. Some speakers, however,emphasised that this branch of law is particularly susceptible to ineffectiveness, due tothe imbalance of power in labour relations resulting from the inequality between theparties, . . . in fact, labour law specialists are sensitive to this issue because labour law,like social law, is a political law, not only because it sometimes embodies or expresses apolitical project or, in any case, a social compromise, but because it both ensuresprotection and social justice as well acting as an instrument for policing competitionbetween entrepreneurs as well as betweenworkers.

We should not be obsessed by the issue of effectiveness – besides the issue ofmeasurement – we should not be too quick to complain that legislators are prone toproclaiming rights that are often not applicable by the parties involved. While it isimportant that the rules of conduct stated in social law should be applied andinfringements sanctioned, it is just as important that law should remain the principlemedium for social cohesion and describing things as they should be.

Notes

1. In France, surveys measuring the gap between a specific legal provision and its effectsin practice (persons concerned, number of contracts signed, etc.) now seem to focusmainly on employment policies.

2. Cf. for example: transactions based on article 2044 in the French Civil Code.

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3. This contribution reports on discussions that took place during an International seminaron comparative labour law in Bordeaux in July 2005, on the topic of the effectiveness ofsocial law.

4. Sur, M. (2006); more generally, for an international, comparative approach to judicialmonitoring: (Auvergnon, 2002)

5. Is it possible to deduce that law does not deserve to be effective from the existence ofillegal practices or avoidance of the law?

6. Do social norms cost a lot of money? What is the basis for this statement? ILO andOECD reports have recently estimated that, on the contrary, layoffs do not cost verymuch.

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Corresponding authorPhilipe Auvergnon can be contacted at: auver@u-bord@caux4.fr

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