Civil regulation and employment relations in a recession: evidence from the UK
Paper presented to the 10th European Conference of the International Labour and Employment Relations Association, Amsterdam, 20th-22nd June 2013
Steve Williams (University of Portsmouth, UK)
Brian Abbott (Kingston University, UK)
Contact: Steve Williams, Portsmouth Business School, University of Portsmouth, Portland Street, Portsmouth, UK, PO1 3DE;
1. Introduction
The continuing economic crisis and the predominance of austerity policies have contributed to a political climate in Europe which is dominated by the desirability of deregulation. Efforts to weaken statutory employment rights and undermine the collective social power of labour movements exemplify the dominant neo-liberal policy approach pursued in many countries and encouraged by international bodies. The importance of this political and economic climate notwithstanding, in recent years there has been a marked growth of interest in the nature of the complex, multi-dimensional regulatory environment of work and employment relations, particularly at transnational level, where new forms of private regulation, such as codes of labour conduct, have become more prominent (e.g. Bartley 2007). This includes efforts to characterize and understand the role of civil society organizations (CSOs), and the role they play in enacting civil regulation (e.g. Fransen and Burgoon 2013; Williams et al 2011b; Williams et al 2011c).
The key aims of this paper are to highlight the levers and techniques which CSOs use to promote, and enhance the effectiveness of, their regulatory objectives, and to examine how civil regulation has fared during a period of economic recession and against a background of austerity, drawing on new data collected during 2012 from organizations based in the UK.The findings provide new insights about the process of civil regulation, in particular the techniques deployed by CSOs to instigate and exercise regulatory influence, andthe leverage they use to try and enhance the effectiveness of their regulatory interventions. Perhaps the most striking outcome of the research concerns how it exemplifies the diversity of civil regulatory approaches. The main contribution of this paper, then, is to derive an indicative typology which captures the variety of civil regulation. As a result, the paper not only makes a notable contribution to our knowledge of the diverse processes of civil regulation, set against the context of economic recession and austerity, but it also adds to our understanding of how civil regulation should be conceptualized and provides a template for further research.
2. Understanding civil regulation in work and employment relations
In recent years, there has been a growing concern with understanding the more complex regulatory environment within which business organizations operate, and also with what regulation means, with reference to concepts such as the ‘regulatory state’ and ‘regulatory capitalism’ (e.g. Ayers and Braithwaite 1992; Grabosky 1995; Levi-Faur 2009; Mackenzie and Martinez Lucio 2005). The rise of private regulatory arrangements, often involving NGOs and other non-state actors, demonstrates how arrangements for regulating business activity are evolving, especially at transnational level. Private regulation, particularly in the form of certification arrangements, has become an increasingly important feature of the global regulatory landscape, particularly in the areas of labour and environmental standards (e.g. Bartley 2007; Bartley 2010; Pattberg 2005; Vogel 2010). The distinctive feature of private regulation is held to be the limited role of the state in the governance of business activities. Rather, it is proposed that corporations themselves, sometimes in association with other non-state actors like NGOs, determine the regulatory framework within which they operate (Chan and Pattberg 2008; Grabosky 2013; Vogel 2008).
The increasing use ofcodes of conduct, designed to govern labour standards exemplifies the trend towards private regulatory arrangementsin the field of work and employment relations (O’Rourke 2003; Wells 2007), linked to the development of global supply chains and pressure on multinationals to exhibit greater corporate social responsibility (CSR) (Fransen 2013; Fransen and Burgoon 2012; Knudsen 2012). Such codes are viewed as part of a more general movement towards the use of voluntary, non-state arrangements for regulating economic activity under globalization such as certification schemes and other forms of ‘soft’ (non-binding) rather than ‘hard’ (legally binding) law. Labour codes of conduct have become a particularly notable mechanism for regulating international labour standards, not least because of the absence of any significant alternatives (Locke and Romis 2010). Importantly, however, while evidently a ‘market-friendly’ mode of regulation, in the sense that it imposes no obligations on firms to alter their practices and implies that change is enacted as the result of the need to satisfy the demands of consumers, NGOs and other non-public actors, private regulation has to be seen as the outcome of an ‘inherently political project’ (Bartley 2007: 337, 336). Research on the multinational electronics firm HP’s supplier network demonstrates the important ways in which labour codes of conduct, as ostensibly private forms of regulation, interact with regulatory interventions by governments (Locke et al 2012).
Clearly, private regulation does not operate as a substitute for state regulation in an overly straightforward way. Moreover, much of the extant work on theimpact of ostensibly private codes and certification schemes highlights the important role played by public authorities and civil society organisations (CSOs) when it comes to influencing how they operate andenhancing their effectiveness (Locke et al 2012). The development and functioning of private regulatory mechanisms designed to govern labour standards in global supply chains are often characterized by interventions from a range of civil society actors, such as unions, NGOs, and activist campaign networks, exerting leverage on corporations to enact more rigorous standards. This can involve using new and innovative regulatory approaches; for example there has been some interest in the use of ‘socially sustainable sourcing mechanisms’, in industries such as food processing and construction (Wright and Brown 2013). This refers to efforts by unions to get employers, such as supermarket chains, to jointly regulate employment conditions in their supply chains, on the grounds that improvements in practice will impact positively on their corporate reputation.One of the main problems with voluntary, private regulatory arrangements in work and employment relations – like labour codes of conduct – is that they come too much under the control of corporations and are thus an ineffective method of improving employment standards. Greater union involvement, however, of the kind observed by Wright and Brown (2013), particularly where it exists in collaboration with other CSOs, could help to strengthen the regulation of work and employment relationships across organizational boundaries.Societal pressure, then, seems to play an important part in rendering ostensibly private regulatory arrangements more effective (Fransen 2012; Fransen and Burgoon 2012). Fransen and Burgoon (2013) highlight the role played by European CSOs in influencing the development of transnational labour governance, and, given the absence of progress in promoting effective regulatory arrangements, the greater attention given to enhancing the organizational capacity of workers themselves as a result. However, difficulties with funding seem to have prompted some CSOs to pay less attention to advocating improvements in labour standards.
More generally, though, there has been an increasing concern with how pressure emanating from civil society affects the conduct of business activity, particularly at transnational level, where CSOs attempt to influence the social and environmental performance of corporations (e.g. Gunningham 2009).The concept of civil regulation refers to non-statutory norms, codes and standards of good practicegenerated by CSOs(Levi-Faur 2009; Vogel 2010). The involvement of CSOs in influencing, and engaging in partnerships with, business organisations, through ‘civil regulation’, reflects growing civil society pressure on firms to improve their social and environmental performance (Zadek 2007). The concept of civil regulation was initially elaborated by Bendell (2000: 246), who observed that ‘NGOs are setting the standards for corporate behaviour, through dialogue with management, and corporations are increasingly choosing to adopt these standards’. It is used to refer to non-statutory governance arrangements that enable civil society, and the organisations that comprise it, to exercise oversight over, and thus influence, the behaviour of markets and businesses (Newell 2008; Zadek 2007). Civil regulation is generally viewed as a form of private regulation, in the sense of being separate from the state (Vogel 2010). However, as mentioned above, the work of Bartley (2003; 2007) and others suggests that we need to be cautious about assuming that the advance of private regulation is a function of the retreat of the state. Moreover, there is an increasing concern with characterising the relationship between the state and civil regulation (e.g. Gunningham 2009).
The role of CSOs in influencing labour standards has begun to attract a growing literature, one which points to the broader role they play in work and employment relations, beyond simply a concern with influencing labour codes of conduct at transnational level (e.g. Heery et al 2012; Williams et al 2011b). Studies have been concerned with explaining why civil regulation has become a more prominent feature of work and employment relations, elucidating its integral features and specifying its main outcomes. The existing general literature suggests that the process of civil regulation is dominated by the use of market campaigns, involving efforts by civil society organisations and their supporters to mobilise consumers in ways that result in pressure on corporations to alter their practices (e.g. Bendell 2000; Gunningham 2009; O’Rourke 2005; Vogel 2008). However, our own research in the field of work and employment relations indicates that the repertoire of civil regulatory interventions extends more broadly than that, encompassing the use of indirect methods such as lobbying governments for changes in policy and also efforts by civil society actors to use their expertise on specific matters to act as sources of good practice. Moreover, it shows that civil regulation is both informed by, and in turn helps to reinforce, the increased juridification of employment relationships, functioning not as a form of private regulation, but as part of a complex and reflexive relationship with the regulatory efforts of the state (Williams et al 2011a; Williams et al 2011c).
Some of the emerging general literature on civil regulation is characterized by an assumption that the interests of CSOs and corporations are largely complementary (e.g. Bendell 2000; Hutter and O’Mahony 2004; Zadek 2007). In highlighting the business benefits of interventions that arise from civil society actors, proponents of civil regulation imply that it can potentially be a highly potent influence over corporate practice (e.g. Hutter and O’Mahony 2004). Our recent research also indicates that civil society actors often make use of business case arguments when attempting to affect corporate practice, based on helping employers to manage people at work in an ethically responsible manner (Williams et al 2011a; Williams et al 2011c). However, the efficacy of business case arguments has often been questioned in the broader literature on work and employment relations (e.g. Dickens 1999), suggesting that much civil regulation, given its reliance upon them, may be of limited effectiveness. Moreover, civil regulation is sometimes portrayed as being rather soft on power (Vogel 2010), raising further questions about its likely effectiveness.
The purpose of this paper is to provide new insights about the process of civil regulation, in particular the levers used by CSOs to instigate or exercise regulatory influence, andthe leverage they use to try and enhance the effectiveness of their regulatory interventions, set against a context of prolonged economic recession and austerity policies. The existing literature on civil regulation highlights the importance attached to using business case arguments as a source of leverage, predicated on a consensus rationale. The use of more antagonistic approaches, such as organizing consumer boycotts, mobilizing activists and litigating against employers, in general seems to be rather less important. However, we have insufficient knowledge of the processes which CSOs use to operationalize and leverage their regulatory interventions. Dickens (2012: 221) recognizes that CSOs may have ‘relevant expertise in particular areas and contacts with workers which state agencies often find hard to reach’, which might allow them to play an important part in promoting and enforcing compliance with labour law. However, the difficulties they have accessing workplacesare notable constraints on their ability to promote effective civil regulation (Abbott et al 2012). Added to which, we would expect that the prolonged economic downturn, and the austerity policies which have been designed supposedly to tackle it, to have had a markedly adverse impact on capacity of CSOs to promote regulatory interventions. Tailby et al (2011), for example, have highlightedthe difficulties encountered by voluntary sector organizations when it comes to representing vulnerable workers, particularly as a result of cuts to funding.
3. Research methods
The paper is based on new data collected between March and August 2012 from CSOs based in the UK. Contacts with the organizations in questionwere originally established during 2008 when research was undertaken which examined the nature of their involvement in the sphere of work and employment relations. The focus on CSOs with an employment angle reflects the growing awareness that organizations of this type are playing a more active part within employment relations in the UK and internationally (e.g. Michelson et al 2008).
While most of the CSOs addressed issues beyond the sphere of paid work it was within the context of employment-related action that we examined the effects of the economic crisis on their activities. The CSOs were arranged into four main areas of activity: equality and diversity organizations (e.g. MIND, Macmillan cancer support, Stonewall); organizations that provided advice and advocacy (e.g. the Free Representation Unit, Law Works); work-life balance and carers’ organizations; (e.g. Maternity Action) and organizations catering to vulnerable workers (e.g. Joint Council for the Welfare of Immigrants, Migrants’ Rights Network, Refugee Action). Interview material was supplemented by documentary evidence, such as annual reports, provided by respondents.The original research focused, among other things, on the role of CSOs in work and employment relations (e.g. Heery et al 2012a), their relations with unions (Heery et al 2012b) and the nature of their civil regulatory interventions (Williams et al 2011a; Williams et al 2011c).
Given the time that has elapsed, and the changes that occurred in the intervening period, it was decided to approach the original contacts, initially in writing, which was followed up with either an email or telephone call. Thirteen different CSOs agreed to participate in the project and those that chose not to, either did not respond to our requests to be interviewed or were too busy. A total of nineteen in-depth interviews(one interview was conducted with two respondents) were undertaken with key informants from thirteenCSOs – including Macmillan Cancer Support, the Migrant Rights Network and the mental health advocacy organisation Mind – whose work involves efforts to regulate work and employment relationships. Face-to-face interviews allowed the researchers to probe more deeply and explore particular issues through illustrative examples. The questions focused, among other things, on the changing political context and how it had affected the regulatory behaviour of CSOs, the nature of the resources used to operationalize their work and employment relations activities, the key arguments and levers deployed to advance their regulatory objectives, the main outcomes of their interventions, and respondents’ own evaluation of the effectiveness of their organizations’ interventions. The interviews were recorded using a digital voice recorder and took place principally at the respondent’s place of work. Interviews were transcribed, verbatim, by each researcher shortly after the interview.
4. Leveraging civil regulation
The data provide new insights about the process of civil regulation, in particular the techniques used by CSOs to instigate or exercise regulatory influence, and the leverage they use to try and enhance the effectiveness of their regulatory interventions in a period of economic recession and against a background of austerity. Three key dimensions of CSO activity are particularly noteworthy in this respect. The first relates to the efforts such organizations put into raising awareness of the issues with which they are concerned, for example through effective media work and associated interventions. This can encompassthe use of branding, marketing and communication interventions to articulate the need for regulatory action.
Awareness-raising activities are a central feature of civil regulation in work and employment relations. Campaigning initiatives by organizations concerned with migrant workers for example are often dominated by the aim of tackling some of the negative connotations associated with immigration in the public sphere. This has prompted one CSO active in this area to emphasise the use of media interventions as a means of confronting some of the myths arising out of the adverse headlines and news stories that frequently accompany the issue of migration, and of trying to alter public opinion.
We’ve also considerably improved our visibility in newspaper and radio coverage, whenever immigration stories break in the news we tend to find it’s a regional radio station that come to us asking for comments without us actually investing in to develop that at all, but our high level of visibility means that people (media) are coming to us asking for us to give our viewpoints.
In some cases, the focus of CSO behaviour is on the use of campaigning activities to raise awareness among working people of their rights at work. The head of one organization reported that it was largely concerned with ‘trying to build awareness of women’s rights’ and ‘making sure women have an understanding of their rights and are empowered to act’. For some organizations, then, raising awareness is not just a matter of promoting visibility and attracting the attention of the media, policy makers and the public; though these matters are clearly desirable. It is also more importantly about enhancing the capacity of working people to improve the circumstances of their own work and employment relationships, including through collective self-organization. According to one CSO respondent, the organization’s work involves ‘putting people in touch with one another, sharing experience, providing links [and] information’. Recognizing the issues and problems that affect working people, and ensuring that they are rendered more visible, is seen as integral to protecting and enhancing their rights.