Migrant workers and collective bargaining: institutional isomorphism and legitimacy in a resocialized Europe

Lydia Hayes, Tonia A Novitz, Petra Herzfeld Olsson

Research output: Chapter in Book/Report/Conference proceedingChapter in a book

Abstract

Demands for cheaper labour in the current context of recession have given rise to two strategies in which certain European Union (EU) institutions are heavily immersed. One strategy is to promote national legal reform to restrict workers’ access to collective bargaining which might otherwise challenge wage reduction. Another is to develop legal instruments which facilitate the admission of migrant workers to EU labour markets under terms which undercut established rates of pay in a service or industry. This chapter considers how these two strategies have coalesced in a de-socialised Europe. In so doing, we examine the role of EU institutions in regulating the organisation of labour markets in such that collective bargaining arrangements are no longer human rights compliant.

It is apparent that the EU Commission, Council and Court take the view that migrant workers ‘posted’ on a temporary basis for supply of services within the EU are not able to rely on terms and conditions set out in collective agreements concluded other than at a national or sectoral level and given legal force by the government of an EU Member State. The Commission and Council have since sought to extend this approach to directives covering the terms and conditions of third country nationals entering the EU as short term seasonal workers or inter-corporate transferees. Notably, this legislative initiative is taking place at a time when the Commission and European Central Bank have joined the IMF in encouraging Member States to adopt austerity measures, which promote the diminution of collective bargaining. National or sector level bargaining is being replaced or abandoned by a turn to enterprise or workplace bargaining arrangements which result in collective agreements that are then rendered unenforceable under the legal framework applicable to posted workers .

We consider these developments with reference to the organisational theory concept of ‘institutional isomorphism’ first outlined by DiMaggio and Powell in their foundational article ‘The Iron Cage Revisited’. Their work, alongside its development by scholars in the field of EU and international governance, offers us a three-fold framework within which to understand changes and proposed changes to collective bargaining which are relevant to migrant workers. Institutional isomorphism explains the tendency of organisations to begin to look the same as they build similar organisational forms or replicate strategies in order to establish legitimacy in their external environment. Isomorphic mechanisms might help to explain imitation in collective bargaining reform, such as the similarity of post-austerity attempts made by Governments of EU Member States to evade national or sectoral level arrangements, or attempts at the EU level to exclude broadly comparable types of migrant worker from access to collective agreements concluded at a particular level. This imitation may be the result of coercive influence arising from external legal, political and technical requirements which can legitimise change in relevant organisations. Secondly, during times of environmental uncertainty such as an economic crisis, organisations may change in response to ‘mimetic pressure’ and adopt similar structures, functions and forms which are promoted as valid and proper by external stakeholders. Thirdly, normative isomorphism may arise through the professionalization of a given field of activity, such that professionals come to demand particular standards as legitimate. The extent of environmental influence over organisational change becomes relevant here. Also crucial is the question of ‘legitimacy’ and how it is achieved.

We argue that the pressure to engage in only local level collective bargaining in EU Member States looks superficially like mimetic isomorphism, particularly given the economic turbulence in Europe, but is best understood as the result of coercive mechanisms. Similarly, the attempt to imitate legal devices (arising in respect of posted workers) which recognise only national and sectoral collective agreements agreed by governments could be regarded as legal transplantation in response to mimetic pressure but its very inconsistency with other EU activities, in promoting localised bargaining, suggests a different cost-based, and coercive, agenda.

This chapter begins by outlining the human rights norms which could and should be guiding EU institutions in their treatment of collective bargaining. We then consider the EU role in austerity reforms within Member States and go on to examine the apparent transplant of EU norms regarding posted workers to certain categories of third country national migrant workers. Our conclusions suggest that neither the potential mimeticism nor the apparent coercion lent to these developments offer the legitimacy that the EU requires. We propose that, as professionals, lawyers can play a crucial role in a ‘Resocialised Europe’ insofar as they prompt reference to international and European human rights law as a superior source of legitimacy in uncertain times.
Original languageEnglish
Title of host publicationRESOCIALIZING EUROPE
Subtitle of host publicationIN A TIME OF CRISIS
EditorsNicola Countouris, Mark Freedland
Place of PublicationCambridge
PublisherCambridge University Press
Pages448 - 465
Number of pages27
ISBN (Print)9781107041745
Publication statusPublished - 2013

Structured keywords

  • PolicyBristolGlobalPoliticalEconomy
  • PolicyBristolGovernanceAndPublicServices

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