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Re-imagining work and its regulation after COVID-19

Alongside others, academics have acutely felt the isolation generated by the pandemic lockdowns. For many of us, one of the most cherished aspects of the scholarly pursuit is the exchange of ideas with colleagues. These personal interactions allow ideas that have been gestating in our minds to reach the outside world and then become honed through debate and discussion. To recreate such a space, members of the Moving Labour Collective decided to host an online discussion about the implications of COVID-19 for labour – its embodied practices, their regulation, and the theoretical and activist engagements with both. The Moving Labour Collective is a community of academics interested in critical labour research, open to both trade unionists and activists. We live and work in a number of different countries—Canada, Belgium, Denmark, Sweden, Austria, Italy, and the United Kingdom—and this diversity added a measure of perspective, and we hope, richness to our discussion. Below is an edited transcript of this dialogue. By publishing its contents, we hope to engage others in the conversation.

What has the pandemic revealed about the nature of work in the contemporary world?

Manoj Dias-Abey: To properly understand work in the modern world, we need to appreciate how the global economy functions. For me, one of the main things that the pandemic has highlighted has been the global economy’s workings. It is increasingly clear that rapid industrialisation, urbanisation, and factory farming all played a contributing role in the emergence of the novel coronavirus. Once the virus had crossed into humans, it travelled along the current circuits of trade and capital, spreading first from Wuhan to Milan which, as you know, are connected by fashion industry value chains. Even national decisions to lock down and restrict movement to stem the spread of the virus have had massive international reverberations because of the way in which our economies are interlinked— supply chain production and the flow of migrant workers were disturbed. The way that workers have been impacted has also tended to depend on their position in the international political economy. For example, workers in countries engaged in low-wage manufacturing and commodity production have tended to fare worse since they face the dual problem of low demand from the Global North and governments without the capacity to provide welfare. The welfare measures announced by some rich Northern states have tended to protect citizen-employees, generally leaving out those with migrant or irregular status, those not on standard employment contracts and, of course, the millions of workers toiling in factories overseas producing the goods that we consume.

Vincenzo Pietrogiovanni: I want to pick up the point about migrant workers. In Italy, restrictions to the freedom of movement of EU citizens from Central and Eastern Europe created major labour shortages in the fields. This made clear the important role played by non-EU – often undocumented – workers, a previously hidden workforce. Responding to these circumstances, the government announced a process for regularising the status of these workers. However, the announcement was not as positive as it sounds: the possibility for undeclared non-EU workers to get regularised will not produce its expected results, plus the newly introduced job-searching residence permit expires in six months, which is too short a time period for anyone to look for a decent job in a difficult labour market. Creating too high expectations now is not only wrong, it is cruel.

Ania Zbyszewska: The pandemic has brought into clear view what feminist scholars and activists have long argued is central to understanding labour and the political economy: that is, the essential, often hidden, work of care and social reproduction. And not just care work per se, though this has been at the forefront of public debates about the pandemic, but also other forms of labour which are integral to the operation of care institutions, for example, support services and janitorial work in hospitals. While this labour is not invisible in the same way as unpaid domestic and caring work carried out within private households, the work of maintaining, cleaning and disinfecting hospitals is not necessarily the first thing that comes to mind when we think of healthcare. So, in this sense, such work tends to be less visible, and certainly less valued in the context of health care delivery even if health care institutions cannot function without it. There is a very clear gender dimension to all this. The Centre for Policy Alternatives recently pointed out that, in Canada at least, 56% in the ‘five c’ professions (caring, cleaning, cashiering, catering, clerical) are feminised. 66% of workers who disinfect hospitals are women. 90% nurses and 90% of personal support workers are women. Most people staffing medical labs are women. And many of these women, as well as men who work in care institutions, are also racialised; some are migrants. The pandemic has exposed various forms of previously undervalued labour – and workers – as essential, thus providing the opportunity for their better recognition and revaluation of their contributions. And yet, while calling (various) front-line workers heroes has become ubiquitous, this discourse is not unproblematic, and whether the hero status is going to translate into concrete steps to better value social reproductive labour is yet to be seen. Some feminists have been sceptical about whether we will see (lasting or any) positive action.

Auriane Lamine: I agree completely that the pandemic has brought to light forms of work, especially those performed by women, that were hidden, and revealed their essential character. The pandemic showed how much the way we value work is deeply biased and outdated. The main tool we use to value work is the free market, or more accurately, power relations in each work arrangement. These are poor tools to value work and do not reflect the social value that some work has. After WWII, to recognise their contribution to the war, workers were granted not pay rises, but more democratic rights in the economic realm, or at the time for women, in the political realm as well. Today, redefining the value of work should not just be about simply revising our market-focused traditional models, but also about discovering how to value non-market, societal work. There is also an ongoing paradox of how societies reacted: although the pandemic led to societies recognising certain workers as ‘essential’, rather than a formal and tangible recognition of their value (by, say, paying them more), in some cases, the discussion centred around demanding that these workers work for less and under more dangerous conditions.

Andrea Iossa: If you look at the empty streets in towns during the lockdown, what you mostly see are those who deliver goods and foods — many of whom are gig workers. Similarly, those who work in distribution and retail have been out and about. A further group are those workers who have to cross borders to deliver goods, or as Vincenzo mentioned, to work in agriculture. What does this mean? Borders are closed but people can cross them as long they transport and deliver goods or provide valuable labour. I think that the pandemic has highlighted once more the key role that logistics operations have in the modern economy. The contemporary form of capitalist production massively relies on the circulation of goods to produce profit. Yet an interesting aspect is that the pandemic required goods to be stashed so as to ensure supplies would be ready for consumption, which is the exact opposite logic of the ‘just-in-time’ mode of production on which the logistics industry is based. This emphasises the value of logistics work.

Inga Thiemann: I want to connect some of the points made previously. Starting with Ania’s point about categorisation of essential workers, and the question of what is valued. In the UK, we have readily praised NHS workers—for example, publicly clapping every Thursday to show our appreciation—but the government has made it clear that there will be no pay increases, even though we have in fact seen nurses’ pay decline in real terms over almost a decade. For me, it is clear that there are limits to our revaluing of key workers. There is a bigger picture of women’s work paid and unpaid work being taken for granted, including care work. During the crisis it has been assumed that parents, predominantly mothers, will take on additional care work created by school and day care closures, while continuing with their usual jobs. There has been very little debate around accommodation of or compensation for this additional work. Another point which links to what was said earlier about the influx of migrant workers, especially seasonal workers, is the apparent decrease in scrutiny for employers. There was – at least until the first outbreaks – significantly less monitoring of whether the living conditions in agriculture, meat packing plants, etc. are sufficiently safe to account for social distancing. The working and living conditions of migrant workers were ignored until their dangerous conditions also posed a potential risk for the general population. What brings these strands together is that while there is an expectation for ‘ordinary’ people to make sacrifices in order to ensure some levels of normalcy, you do not see the same demands placed on employers. There is a divergence when it comes to who is expected to make sacrifices during this pandemic.

Venera Protopapa: What I would like to add relates to the characteristics of the Italian labour market, in particular its dualism. For example, when it comes to the pandemic-related financial support from the state, it has been difficult to cover workers who work ‘on call’. The problem is even bigger when we consider that in Italy conditions of work have eroded over time, and as such, we are not just talking about a small minority of workers. The same is true for informal workers and bogus autonomous workers. Interestingly, this is pushing policy makers to think about solutions that tend towards universal forms of support. My second remark concerns a category of workers whom we tend to see as privileged: knowledge workers. The pandemic has exposed the challenges that such workers face in terms of work-life balance, particularly given the hyperconnected nature of our societies. I think that perhaps the pandemic opens up some possibilities for thinking about universal forms of protection of working conditions of knowledge workers in different ways.

Miriam Kullmann: What’s striking for me about the pandemic is the extent of individual responsibility we have all been made to bear to get through it with very little responsibility imposed on employers. The individual is responsible for their health, their family, parents, but also securing their own employment opportunities and income. In Germany, for example, there was a case where the coronavirus ran rampant in a slaughterhouse with many migrant workers. The virus spread very quickly because of the housing conditions (small rooms, large groups) in which the workers resided, and the employer did not take responsibility for that. The lack of enforcement – in Germany always a difficult task because of the federal system – contributed to this. This is an example of the state withdrawing from protecting people. A second related point is that in many countries (Germany, Austria and the Netherlands etc.), while the state is providing money to companies to protect jobs, they have also permitted employers to loosen the terms and conditions that these workers are required to work under. So, workers are left to fend for themselves despite their taxes paying to support companies. We are seeing a shifting of responsibility towards the individual.

Fotis Vergis: What we have been essentially describing is the pandemic being used to consolidate globalised neoliberal capitalism. Instead of cracks on the wall we are seeing the intensification of practices and narratives that were already present, with immediate worker reaction options now further limited. Inter alia, we have identified narratives focused on individualism: individual ‘heroism’, self-preservation, and ‘responsibility’ (to protect others by socially distancing to work and to survive). The state, as the vehicle of the collective, ensures the market will survive and that’s it. There is also a consolidation of neoliberal practices. Prime amongst these is the further fragmentation of labour into groups (the fixed-term against the ‘permanents’ and all against the precarious; the nationals against the (im)migrants; the essentials against the ‘non essentials’), promoting the narrowing of worker consciousness and perceived interests within the boundaries of each of these, as if detached from the others, if not pitted against them. Lastly, we have also seen this market-driven emphasis on keeping production and markets running. Even under conditions of risk, and despite compulsory lockdown measures, workers were allowed, if not compelled, to leave their homes to work, but not to protest, support their colleagues and fellow workers, or even exercise their rights as trade union representatives. It is within this context of consolidation of established narratives and practices that we need to situate the need to re-evaluate work, and its formerly hidden forms. However, we also need to be wary of the attempts that will be made to prioritise narratives of individualism and fragmentation, and the ‘flexible’ employment forms promoted during the pandemic (including homeworking), which effectively complement and facilitate them.

How will work change in the future as a result of the pandemic?

Manoj: I do agree that we have a once-in-a-generation opportunity to revalue work, such as the work performed by farmworkers, care workers, refuse collectors etc. I’d like to think that we will seize this opportunity, but I think it could go either way. I do think there has been a shift in public consciousness, but this does not mean that those who stand to benefit from the undervaluing of these types of work will not continue to push their agendas. In the UK at the moment, there is a debate about a ‘points-based’ immigration system that the Tories are pushing, and which has the broad support of the businesses sector. Under this new scheme, workers earning below £20,480 would be barred entry. This simply re-inscribes old ways of valuing work according to compensation received. The second point I’d like to make relates to the label of ‘essential work.’ In an article I recently read, a quote from a finance worker from London was featured who was complaining about the slow pace of ending the lockdown in London—he was keen to get back to his physical workplace. Initially this article made me laugh, but then it caused me to think about how essential the work of these finance workers have been in terms of our response to the economic havoc caused by the pandemic. Most countries relied heavily upon their central banks to pump liquidity into the economy to stabilise the economic order. This is not a justification for the obscene amount of money paid to finance workers, but to deny their essentialness risks obfuscating the true nature of contemporary financialised capitalism. I wonder if the category of ‘essential worker’ is the best way to revalue work, and perhaps scholars can contribute to developing more analytically rigorous ways of looking at this problem.

Vincenzo: I want to make two points. First, the pandemic has shown that precariously employed workers are extremely costly for society, while standard forms of employment with full protection of rights have been much more cost-efficient for the state. Standard employment has proved to be less of a burden on the public budget, while workers under non-standard forms of work (used very often by employers to outsource the costs of their social transactions) have been targeted by an increasing number of protection measures by Governments, paid via general taxation. To some extent, this pandemic might provide room for rethinking the relationship between rights and a cost-efficiency rationality, i.e. the relationship between statutory protections or fundamental rights and their economic outcomes for society in the long term. Second, I want to pick up on Miriam’s point about working from home, which has created a very dangerous narrative around telework or smart working. You can read in financial newspapers that employers’ associations have been pushing towards a liberalisation of these working arrangements, with no one addressing pitfalls and dangers. Working from home together with forms of workplace surveillance allows for extreme levels of intrusion in workers’ privacy and creates a complete blurring of boundaries between work and home. So, even the seemingly positive aspects of the pandemic such as greater flexibility to work from home, comes with a set of worrying consequences.

Ania: The pandemic has rendered working time an important subject of discussion, though, I would argue, it is one of those work-related subjects that are perennially relevant. The 40-hour work week – or related ‘standard’ work week models – have not reflected many people’s work and life realities for a long time. And now, during the pandemic, the time porosity that many have experienced has become more exacerbated. As Venera pointed out, knowledge workers (including higher education workers) seem to be expected to work around-the-clock to complete old and new job-related tasks while providing care, support and maintaining households. Those images of smiling women balancing babies on their laps while performing telework represent many people’s reality now, except that the reality is far from the idealised depiction and certainly busts the policy myth that this form of flexibility is always beneficial. The issue of work intensification and how to balance this work with other life priorities is of course not only a problem of those working remotely. People working in logistics, retail, farming, health care have also experienced major intensification of work. While we have called them heroes, as Inga and Auriane noted, there is a significant danger in this framing. As soon as we invoke this hero discourse, the spectres of sacrifice and public duty come to the fore. This, I think, is quite dangerous because it naturalises the notion that some forms of work – typically social reproductive labour – should simply be carried out of love, out of duty, out of obligation, whether for our immediate families or for society at large. Of course, we could live in a world where everything is done out of love, in the spirit of mutual assistance and solidarity, but because the market and capitalist logics dominate how economy and society are governed, when work gets cast as a public duty or a labour of love there is much scope for exploitation, which we are definitely currently seeing.

Auriane: I wanted to say that I disagree with accepting the premise of Manoj’s pragmatic approach on the importance of the financial sector, even for the sake of the argument he made. I don’t know a lot about it, and I might be wrong in my assessment, but I got the opposite impression during this period—the pandemic revealed that the centrality of finance and fiscal considerations were artificial. For a while, especially since 2008, fiscal discipline and financial regulations were seen as super-important and debt was a big thing and we needed to reduce expenditures at all costs. But now, all of a sudden, we find money, at least to a certain extent, to finance things. So, I do not feel that this period has revealed the essential nature of finance and the centrality of the financial sector. Rather, for me, it has revealed the artificiality of placing financialisation at the heart of our economic system to an extent that we are led to construe finance workers as ‘essential’. If anything, the pandemic revealed the essential nature of many kinds of other work, as we have demonstrated in this conversation. Finance, and the relevant regulatory frameworks, should at best be an important tool to promote dignified work. However, they have been presented as an end, as having value, in and of themselves. I fully agree with the time porosity remarks already made. I do believe that the lack of boundaries, the ambiguity that appears when you do not know when work starts and when it stops, even outside of the telework context, creates a potential both for greater freedom but also for greater exploitation, even for self-exploitation. In working from home, we have seen that the physical absence of the employer is irrelevant because there is machine-based control, but importantly, there is self-control. This potential for exploitation is deeply related to the boundaries between what is and is not work, between private life and work life, and with what is societally construed as worth being called work and valued as such. I also really liked what Miriam said about the loneliness of the worker and the increased responsibilities that arise. This isolation and fragmentation make collective reaction more difficult, both pragmatically and practically, but also because it becomes more difficult for people to realise that they have a common interest. There is less space for a collective consciousness to emerge.

Andrea: I want to pick up on the point about precarious work being costly. In Sweden, there is a lively debate about privatisation and precarious work in elder care. Often care workers are employed with precarious contracts, like zero-hour contracts and temporary agency work. This produces a high rotation between workers that might have favoured the spread of the infection in care homes because of the constant change of workers and because of the need for providing new training every time a new worker is employed. I think the pandemic might provide a platform for demanding new rights for these workers. I also see the potential for telework to become a platform for claiming new rights as it entails profound changes in working time and space.

Inga: I am a little bit more hopeful. With regards to Manoj’s point about the UK immigration system and valuing of work, we are also seeing some pushback against the points-based system. The public perception of the value of certain types of work has increased, as has public awareness that these types of work is disproportionately performed by migrant workers. As for the lack of space for collective consciousness and collective action to emerge, I suggest that we have to look at movements that have not traditionally had any support from unions. I always turn to the sex workers rights movement, who have been amazing at creating collective support. They have been raising and distributing funds within their communities as many of them were not eligible for government aid. Sex workers have organised multiple collective initiatives in the past few months and they know how to do this because they have normally been excluded from mainstream collective action. We have to look to non-traditional communities of workers like sex workers and gig workers to find new ways to imagine new forms of worker mobilisation and to find that sense of collective solidarity.

Venera: I would like to start from Miriam’s comment on how each of us has been made responsible for ourselves and our families. I expect that in future employers will start encouraging the use of smart work. The pandemic has provided the opportunity to test it in terms of productivity and highlighted its potential in terms of cost savings for employers. This appears to be somehow related to the human resources discourse of treating employees as owners. Employees are now called to play the role of owners not only in relation to the level of their commitment to work but also in relation to providing themselves the appropriate working equipment, physical working space, and health and safety protections.

Miriam: I want to pick up on the point about workers in finance. Depending on who you ask, the ‘essentialness’ of a job differs. On the one hand, we have these essential workers who do valuable work, exposing themselves to unhealthy conditions but these jobs that cost a lot of money (I mean health care is a huge cost issue from a state perspective, less so from the individual perspective), but on the other hand, we also value finance jobs that bring even more money. It seems to me, because of the interconnectedness or the interrelatedness of the economy on a global scale, depending on the kind of perspective that you take, almost any job has been essential in terms of feeding people, but they are valued in a different way. So, we are now calling care workers, those that work in hospitals, heroes without paying them enough and we are valuing a kind of work that brings more money, the finance. We can also shift the discussion to also include ‘bullshit jobs‘ (a term I have taken from David Graeber), jobs that we don’t need but we still have them because people keep themselves alive by having these kinds of jobs earning a lot of money.

Fotis: Despite my inherent cynicism, I do want to engage with Inga’s more hopeful sentiment. This might be a chance to keep the spotlight on hidden forms of employment and their value. More importantly, however, it might be a chance to be reminded of the value of labour even within the current market system; it is not the system itself, the ‘market forces’ or the resources that create wealth, it is labour that does. These realisations can also provide a springboard for reaction. Among those that had had no formal institutional protection thus far —for example, gig workers, sex workers, artists — you can see new forms of engagement, interaction and reaction brewing. However, it ought to be noted that wherever there are established collective worker institutions, there has been numbness in their reaction, if not effective failure, to provide meaningful protection, especially within the constraints of relevant traditional processes. If anything, as wildcat strikes during the pandemic revealed, workers at times tended to disengage from, or circumvent, established mechanisms. The same goes for state institutions. While states ensured that not only production, but also the full apparatus of financialisation and market speculation would never cease functioning (stock markets never closed), they were not as meticulous in ensuring that processes of transparency, democratic accountability, and worker protection would equally keep on uninterrupted.

Does the pandemic create any new opportunities for labour and social movements?

Manoj: In terms of thinking of what openings there are for labour movements, the starting point is to understand what capital is doing in response to COVID-19. I think one of the really important processes that we are seeing is the reconfiguration of value chains to increase national production capacity or regional capacity—in the business literature on supply chains, this is being called ’improving resilience’. Some of this was happening before the pandemic due to the trade war between the US and China, but we are seeing an acceleration of these process. I think three issues arise from this. First, are supply chains that are built for resilience (as opposed to efficiency as in the past) apt to lead to a better deal for workers? I think this is not likely. Second, does the reconfiguration of supply chains open any opportunities for labour movements? We know how difficult it is for workers to organise across supply chains spread over long distances, and we should be thinking about whether more spatially clustered production create openings for labour movements. Third, how can workers and their representatives have a voice in this reconfiguration? At the moment, most of these decisions are being taken in corporate boardrooms and do not involve trade unions or worker groups in process. What could we be doing to ensure that workers are involved in decision-making processes?

Vincenzo: During the pandemic, we realised that the state had more resources than we were led to believe—states found the ‘magic money tree’. Most of this funding has gone to businesses who come knocking on governments’ doors and begging for money. At a minimum, we should demand that governments negotiate social and ecological clauses as conditions to be eligible for public funds. This is the time for trade unions to ensure that state funding is tied to the creation of decent and ecologically sustainable work. This might ensure that the huge flow of public money is used to totally re-shape economy.

Ania: I want to reiterate – along with my earlier comments about care – that with COVID making so mainstream (long recognized) insights about the importance of caring and social reproduction, there is an opportunity to revalorise the different forms of work that go into supporting these processes. The pandemic fall-out highlights how privatisation and running of care-providing institutions, for example long-term care and retirement homes, on a profit motive, is so very problematic and antithetical to this sort of revalorisation. In Canada eighty percent (!) of coronavirus-related deaths have occurred in long-term care and retirement homes; this is double the OECD average. Infection rates were linked to workers moving between facilities, as Andrea already noted, having to stitch together a living from fragmented contracts across many job sites. While the spread of contagion and the resulting deaths are an unqualified tragedy, I hope that one outcome will be to improve conditions of life in these facilities, but also conditions of work for people who are employed there, to offer better paid (thus valued), and more stable jobs. The society and the labour/worker movements should be putting pressure on states to nationalise, or at the least better control these institutions. Spain has (temporarily) done so. In France, Macron, who himself is a free marketeer, has urged that we have to recognise essential services – care, healthcare, etc. – as public goods, so there is definitely some shift away from the discourse that these goods and services have to be provided by the market.

Auriane: The pandemic period has been a roller coaster for me. I have to say that at the very beginning of the lockdown I was quite optimistic hearing all these new visions of work that we might adopt once the crisis is over. Over the weeks I became increasingly pessimistic because of the problems of isolation, which as mentioned, makes collective action difficult to build. Of course, I am interested in growing and emerging practices but still I think systematic reaction will be very hard. I have seen the use of technology as a means to push for collective action, but so far, I get the impression that many initiatives or positions emerging online are pushed by people like academics who are not necessarily putting their skin in the game (myself included!). More ‘democratic’ forms of (re)action that connect workers, are imperative. It was a nice surprise to see people determined to be heard in spite of the risk, despite the awful circumstances that sparked such reactions in some cases, like in the US. That said, I discern a momentum to push for strong social welfare systems, including social security, healthcare, and protection against unemployment. I am also getting increasingly interested in the debate about the connections between work and revenue. Not that I would ever argue to disconnect them, but we could try to create new types of work – purely voluntary – which respond to social needs and that are paid by the collective, or local collectives, promoting revenue stability and autonomy in work at the same time.

Andrea: In terms of what spaces can be opened up for labour movements, I would like to highlight two points. First, despite the fragmentation of the trade union movement in which not all trade unions necessarily engage in organising activities, I think that there is an opportunity that has been opened by this crisis, which is to start organising at workplace level in vital sectors like logistics, transport, agriculture, and care. Second, the pandemic has brought to the fore questions of health and safety. The detailed and meticulous requirements needed to preserve health at work—what kinds of tools workers must have, what PPE workers must wear etc. – might be an opportunity for a greater democratic involvement of workers in making rules at workplace.

Inga: I want to echo to some degree what Manoj and Vincenzo said about state aid and the rediscovery of the money tree. It could also be an opportunity to rethink social security as a scaffolding measure and a possibility to create baselines for all, regardless of worker status. The crisis has re-ignited debates about universal basic income and how that could enable a different power balance in the context of work, as well as a better work-life-balance. There are possibilities to be explored here.

Miriam: I am not sure of what I can add because you all said important things, but for me, the big question is how? What kind of sectors do we have and what sectors do we need to protect? This would need a revalorising, a revaluing of work in general. To do so, we should try to take a long-term perspective, rather than looking at what could happen over the next two or three months.

Fotis: I absolutely agree with what has been shared. At this point, at the very least, we need to react to whatever capital is doing. If capital is promoting individualistic ideas and focus, we need to enhance collective responses. If capital is promoting fragmentation of the workforce into segmented groups, we need to promote interconnectivity and solidarity among and between those various groups. Similar to Auriane, I am slightly pessimistic having seen how things unfolded in Greece during the lockdown and beyond. We are definitely losing on the narrative front. In constructing a counter-narrative that would highlight collective ideals and solutions, going back to the workplace level, and starting from that basic unit of reaction, is absolutely critical. The pandemic experience thus far indicates that it is higher up, at sector or national level, that established worker organisations (sectoral and ‘occupational’ trade unions, regional or national, and trade union associations) are trailing, or failing to intervene, right now. Reaction at the basic unit of the workplace might actually shake up higher level collective processes from their slumber, to push for a progressive agenda, as Vincenzo remarked.

At the moment we are seeing anything but a progressive agenda being promoted, with little to no formal worker participation. Take the SURE (Support to mitigate Unemployment Risks in an Emergency) program announced by the Commission in response to the pandemic. It is supposed to boost employment and be a ‘tangible expression of Union solidarity’. However, its conditions, adopted without any real consultation with labour, have already been used as a Trojan Horse to ignite the push to introduce, through publicly funded schemes, zero hours work, in legal systems where such contracts were not recognised previously. Beyond the workplace as such, though, there has also been interesting grassroots action that made inventive use of dominant narratives and state measures, including those that relate to social distancing, the civic duty of individual responsibility, and ‘hero workers’, to successfully challenge market and employer-friendly state reaction. In demonstrations and protests recently in Greece and the US social protesters and trade unions, while applying social distancing rules, managed to fill city centres using such tactics and flipping state narratives on their head (‘we are workers, not heroes’). Of course, across the globe, workers have also taken to social media and other forms of online communication to organise and popularise their struggles. Such novel forms of collective reaction, practical or substantive, are certainly an interesting subject of examination.

Venera: I think the pandemic comes with some openings, but I am not sure how optimistic we can be about our ability to exploit them. To begin with, the pandemic highlights how desperately precarious workers need collective representation to move away from exploitative working conditions. The pandemic has separated people into two groups: those who under the emergency could still have a decent life, and those who could not. This is a fragmentation that we cannot afford in any way, especially considering the challenges that the future poses to labour. I hope traditional unions will be up to the task in this regard, in terms of anticipating the needs of workers and providing credible solutions. Additionally, the hegemonic neoliberal idea that unions are just an obstacle to economic initiatives, has been put under further pressure. The reality is that today employers clearly need unions in workplaces, especially with regard to health and safety management and governments need unions to support their action and provide legitimacy to the way that they are managing the pandemic.

What is the role of the law in exacerbating or remedying the impact of the pandemic?

Manoj: The first thing I’ve noticed about the law, at least labour law let’s say, is its entire suspension in practice. Workplaces that are operating right now are not operating according to stipulated legal standards. Employers are ignoring vast swathes of legal regulation, especially when it comes to health and safety, termination provisions etc., and there are almost no consequences. In the UK, this is obviously quite detrimental for workers because they are not receiving their legal entitlements, but on the flip side, workers have been able to take actions which in other circumstances might be characterised as unlawful industrial action. The second interesting thing is how law can be mobilised by social movements for useful purposes. We have this section in the Employment Rights Act (UK), s 44, which essentially allows an employee the right to refuse dangerous work. It’s a fairly obscure bit provision that comes from transposed EU law, and no one has really shown much regard for it before. However, worker advocates have drawn on s 44 to empower workers to say ‘no’ to unsafe work, even if it is unlikely to be lawful in a technical sense. Notwithstanding the strict legal interpretation of provisions, it is interesting to me how law can sometimes serve as a resource for workers and labour movements.

Vincenzo: The combination of restrictive immigration law and flexible labour law often criminalises part of the workforce and opens up opportunities for exploitation. If your permit requires you to be tied to an employer, this gives immense power to employers. Equally, without a work permit, your access to fundamental rights can be hampered by the status of being ‘clandestine’. Moreover, on the relationship between law and the pandemic, many of the measures that have been taken are meant to be transitory or temporary. I know that this can be related to the bigger issue of a state of exception, but more humbly, the question for me is to what extent these transitory rules will survive the pandemic? Namely, what are the possibilities for some of the good measures—the ones that go towards the universality of protection, which can withstand the pandemic.

Ania: Just a couple of reflections, picking up on what has already been said. I think that, with the pandemic, the notion of what dangerous work is has changed and expanded. In Canada, provincial and federal jurisdictions’ occupational health and safety statutes contain the right to refuse dangerous work. Workers in Canada have been invoking this right, in the construction sector for instance. Likewise, there was a similar conversation in the health care sector at the very beginning of the pandemic, because of the experiences related to SARS more than a decade ago. At the same time, recent reports suggest that claims of work refusal have been largely denied as lockdowns end and restrictions get lifted. Moreover, I have also come across discussions on the right not to work, which, I think, will be particularly relevant as things start to open up, as restrictions are lifted, and lockdowns eased. In the HE sector, we are likely to be teaching remotely as the new term starts in the fall. However, there were some op-eds published recently about the need to reopen universities which led to a conversation about whether or not it’s safe for academic staff to go back to universities, and this idea about the right not to work and to what extent you can invoke it has come up in that context. And then the second reflection I just wanted to make is about telework/remote work, which is something we talked about quite a lot, especially this idea of home becoming a workplace. We really don’t have all that much regulation in this area, and so there is some role for the law to respond to the situation of people working from within their homes. As we know, from discussions about domestic work, for example, labour law is traditionally rather resistant to treating home as a workplace.

Auriane: I would add that we should be using the law as an instrument of change. To do so, I would push for three different paths. First, we must increase democratic control on power, both towards the government and towards forms of power inside the economy, especially in firms. This can take a lot of forms. Conditional aid for enterprises, which we discussed earlier, could be a strong tool to increase worker control in the future. For example, some requirements could be set, as conditions to aid, on how management should behave and how companies should be governed. Second, I think we should be advocating the broader use of strategic litigation. After the financial crisis, the crises was used as an excuse to effectively suspend legal norms. This time around perhaps a strategic option could be to go to courts more quickly to question the compatibility of such actions with constitutions or higher conventions. I think in Belgium that would be possible since our constitutional court has shown some signs of life recently, notably on the question of gig work. And third, we should opt for experimentation in norm making: adopt a process that starts from the ‘local’, the ‘base’, and from a limited spatial and temporal frame, and try to see how things work on the ground before expanding these solutions. Such a process would require involving actors at all stages of this trial and error process. I am very interested in this kind of proactive, inclusive and grassroots-based law-making for the future. Uncertainties are growing and we need the expertise of every worker, of every citizen.

Andrea: One thing that I would like to emphasise is to stress a sectoral approach to labour regulation. I think it is important to understand how different work operates in different sectors, which then requires different types of regulations. I think that this has been massively highlighted in this situation. Another thing I want to bring in is the importance of social security law. The pandemic has highlighted how to use social security measures for reducing the spread of infection. Just to give you an example, as soon as COVID-19 reached Sweden, the government reacted by modifying the rules for sick leave so as to make it easier to stay home and by loosening the rules for acceding to unemployment benefits. Why can’t these measures remain in place after the pandemic?

Inga: The UK government has been unwilling to create any legal obligations for employers or protections for workers, and left categories like ‘key worker’ purposefully vague. Somehow staying alive, staying healthy and protecting oneself became everyone’s personal responsibility. This links in a very problematic way with the ‘hero’ narrative discussed earlier, because it leads to the conclusion that if you die it is because you didn’t try hard enough, you didn’t protect yourself well enough. Everything becomes a personal responsibility instead of an employer or state obligation.

Venera: I just wanted to bring up a problematic aspect of the way the law has been interacting with the pandemic. The Government in Italy has managed the health crisis through emergency decrees. This becomes all the more worrying if we consider the quality of the law-making techniques that have been put in place. The Italian ‘Decreto Rilancio’, which contains all the measures providing financial support to families, workers and businesses, is 464 pages long. Can we really assess whether all interests have been adequately taken into consideration and possibly influence choices on who gets public money and under what conditions when the process of decision making is not public, and its products are scarcely intelligible to most people?

Miriam: I hope we will see a new approach to regulating work that moves away from market thinking. This pandemic showed that governments could act very fast to address problems, and we have seen many problems in the world of work developing over time. I hope there will be a better future for regulation and that regulation that can rebalance things in favour of workers.

Fotis: As Mirowski has written, describing the neoliberal mindset, ‘never let a serious crisis go to waste’. This is essentially what we have been experiencing. This idea of governance by decree is connected to the concept of what crisis is, or how long a crisis actually lasts. It seems we are adopting emergency measures but with no expiration date in sight. After a while, the emergency becomes entrenched. This is the process through which labour law has been amended during the pandemic. Governance by decree is one thing but using this opportunity to pass extremely long and complex pieces of legislation that have been obviously pre-prepared and were unable to be passed under normal conditions of democratic scrutiny and transparency, is quite another. I agree wholeheartedly with suggestions made above to reshape public procurement or company law rules to enhance social and labour protection and participation. Adding to this, more generally, the crisis could be used to enhance collective processes both formally and substantively. Formally, trade unions, as collective organisations, should be reviewed, even at the basics: for example, as to a) their scope of representation, which should be reviewed and expanded to become more inclusive; b) how, and at which levels (e.g. sectoral, geographic – including transnational), TUs ought to be organised and function, including with reference to strike action. Substantively, we should rethink what collective bargaining is and what it ought to cover, and similarly as regards the concept of a trade dispute that could justify industrial action. For example, the pandemic revealed that worker interests extend beyond the narrow confines of the employment relationship. Maintaining certain public services like caring and health and ensuring public and democratic scrutiny of state actions are worker interests as well. There is no reason why they should not be able to pursue those through collective organisation and action. Law is constitutive. But it is also to be constituted.

Auriane: Capitalism is like Covid-19: once we develop an immunity, a defensive but also a constructive reaction to an attacker, the virus adapts, it mutates… and the same goes for capitalism. That is what Boltanski describes in The New Spirit of Capitalism, when he says it is so powerful it absorbs its own critique. I think we should keep an eye on keeping the critique alive for it not to be absorbed.

 

The Moving Labour Collective:

Manoj Dias-Abey, Lecturer in Law, University of Bristol

Vincenzo Pietrogiovanni, Associate Professor in Labour Law, Lund University

Ania Zbyszewska, Assistant Professor of Law and Work, Carleton University,

Auriane Lamine, Associate Professor in Labour Law, Université Catholique de Louvain

Andrea Iossa, Postdoctoral Fellow at the Faculty of Law, Lund University

Inga Thiemann, Lecturer in Law, University of Exeter

Venera Protopapa, Assistant Professor of Labour Law, University of Verona

Miriam Kullmann, Assistant Professor, Vienna University of Economics and Business & Visiting Scholar, Harvard University Weatherhead Centre for International Affairs

Fotis Vergis, Lecturer in Law, University of Manchester

Image credit: Lyubov Ivanova via iStock