Labour Law, Work and Family

Professors Kerry Rittich and Joanne Conaghan

From the Spring/Summer 2006 issue of Nexus.

In recent years, gender has emerged as an increasingly important focus of attention in discourse in and around labour law across the industrialized world. A number of forces are at work. As the labour force has been 'feminized' and women have ceased to be secondary or peripheral workers, the male norm around which labour law has been structured has become both less persuasive and more problematic; at the same time, core aspects of traditional labour law regimes, from employment protections to collective bargaining practices, have been implicated in the creation of adverse distributional effects for women. As a result of economic restructuring, features of working life traditionally associated with women - low pay, flexible working practices, job insecurity - have become general labour market concerns, while the decline of the family wage and the corresponding increase in the participation of women with young children in paid work has forced the issue of reconciling work and family obligations on to legal and policy agendas. Finally, the rhetoric and reality of globalization has brought into relief the ubiquity and extent of women's economic disadvantage worldwide, compelling an examination of both its manifestations in different contexts and the role of legal rules and institutions in its production.

The application of a gender lens to the world of work has served simultaneously to highlight and problematize a number of foundational distinctions in labour law: these are the boundaries between work and family, production and reproduction, paid and unpaid work. For example, the rise in demand for flexible workers has brought into focus the dependence of current workplace norms on a particular social paradigm which assumes the performance of considerable amounts of unpaid care work. This dependence is reflected in labour law and discourse. Indeed, it turns out that virtually all of the conceptual and analytical tools which labour law deploys - concepts of work, worker, or workplace; notions of cost, benefit, and the allocation of value; models of justice and/or efficiency - presuppose a (gendered) division of labour in which 'reproductive' work is sharply distinguished from 'productive' work and is largely consigned to the realm of non-market relations. Thus, while virtually all labour market institutions are shaped by encounters at the boundaries of the productive and reproductive realms, even while these boundaries are undergoing profound change and contestation, labour law itself lacks a well-developed conceptual apparatus to identify and chart such encounters.

Work/family issues were once understood to be almost entirely concerned with women. However, negotiating the work/family boundary is increasingly recognized as central to the regulatory challenges of the new economy. Changes in both labour markets and households - in most industrialized states, the labour market participation of women approaches if not equals that of men; households take a variety of different forms and are dynamic rather than stable over time - are calling into deep question both the needs and interests of workers and the capacities of households (specifically women) to provide support and labour for a broad range of essential, but 'non-market', social and economic services.

As a result, the work/family nexus informs a range of issues relating to the regulation of work in the new economy, such as what constitutes 'work' and who is a 'worker', and is intimately bound up with broader debates around the transformation of the state and strategies of privatization, deregulation, and decentralization. It is profoundly significant to debates about the viability, efficacy and desirability of different modes of labour regulation such as individual rights versus collective strategies for workers, the uses and limits of voluntary forms of regulation, the interaction of national or supra-national regulatory levels, and the merits of 'soft' versus 'hard' regulation in the context of work, as well as the merits of labour market flexibility and the regulation of working time. Finally, work/family considerations are also of crucial importance in the context of normative or distributive questions arising from the regulation of work. This is true not just (and most obviously) around sex equality concerns, but also with regard to strategies of social inclusion and debates around distributive justice between the north and the south in the context of global economic integration.

In light of these developments, there is both unprecedented opportunity for critical intervention and a pressing demand for probing and far-ranging analyses of the work/family nexus. A central premise is that the rules and institutions governing work, as well as the concepts, distinctions and assumptions underlying the legal regulation of work - think, for example, of the public/ private distinction, and its effect on the division between workplace and family concerns and responsibilities - might themselves contribute to the current problems at the work/family nexus: they create and support the evolution of workplace practices and both generate benefits and impose costs and risks, thereby creating advantages and disadvantages not only for workers and employers but among different classes of workers too. Analyses might be expressly policy-driven, that is, concerned with the extent to which analysis of work and family issues can aid the realization of independent and overlapping social, political, or economic goals such as greater labour market participation, sex equality, economic competitiveness, or social inclusion. They may be frankly normative, identifying the values and assumptions underlying current conceptions of work and family; here, they may engage with a broader set of values and ethical discourses such as social, constitutional, and human rights, or problematize the current state of the public/private divide. They may be broadly functional, situating work-family issues within the context of economic, social, and political imperatives, whether they are the interests of capital or capitalism, the tenets of neo-liberalism, the impact of globalization, or the requirements of social reproduction. They may include a historical dimension and focus on processes of social and economic change. They may be ideological, illustrating how discourses around work and family or assumptions about motherhood operate to represent as natural and universal forms and practices which are in fact the product of particular economic and social traditions and political and legal choices. Finally, legal scholarship may concern itself with the operation of the work/family dichotomy at a conceptual or doctrinal level, addressing, for example, the precise mechanics within labour law involved in the constitution of work and family as separate and conflicting spheres. But a primary purpose and effect of all such approaches is to analyze the relationship between legal forms and concepts and concrete social arrangements, and to highlight the ways in which different conceptual frameworks can themselves cause problems to alternatively materialize or disappear thereby rendering potential solutions alternatively available or invisible.

In short, the work/family nexus and the issues it engages are fundamental to the reconstitution of the sphere of work broadly understood; any failure fully to recognize this is destined to limit the value of analyses of the changes currently taking place in that sphere. Because work remains deeply gendered, any aspiration towards a progressive transformation of labour law must confront and acknowledge the extent to which the work/family divide is implicated in distributive disparities between men and women, among different social classes, and across different geographic and political regions.

A better work-life 'balance', in particular reconciling the conflicting demands of work and family while increasing women's labour market participation is now a central objective in wider debates around labour market regulation and reforms to social security.

While encouraging from one perspective, there are risks that this approach may simply reassert and entrench the existing work/life dichotomy rather than destabilize it, at the same time rendering its gendered nature invisible. This risk is especially acute where work/life balance becomes a gender-neutral preoccupation with fulfilling individual desires or facilitating lifestyle choices, while the context in which these choices are exercised - including a long-hours work culture, increasingly competitive labour markets, a new emphasis on performance- based pay, declining real wages, weakened bargaining power and greater overall economic insecurity for workers, and most importantly, labour markets opportunities that are still deeply stratified by gender and a gendered division of labour at home - remains intact. While it is possible that women may benefit from policies that are designed for the purposes of enhancing economic competitiveness and reducing fiscal strain, where women continue to perform crucial services on an unpaid basis even as they enter the market, such policy objectives may also be coercive and disadvantageous.

In many places, the emergence of work/family issues on the radar of policy-makers has not yet led to reforms that challenge the structural causes of gender inequality arising from the conflicting demands of the market and household. Rather, a distinct cleavage seems to be emerging between reforms that merely manage the tension between work and family so as to relieve some of the pressure on women workers on the one hand and proposals that seek more profound distributive change and have as their aim greater substantive equality for women both at home and at work on the other. Whether more promising outcomes from the standpoint of gender equality lie in the future will depend on at least two things: first, the acceptance of a much wider definition of the concept of work and second, a willingness to mount fundamental challenges to work norms and practices, both established and emerging, at home and in the labour market.

Professor Kerry Rittich (U of T Faculty of Law) and Professor Joanne Conaghan (University of Kent) write more fully about the issue of work and family in Labour Law, Work and Family: Critical and Comparative Perspectives (OUP, 2005), a collection of essays in which they and their colleagues aim to demonstrate why and how attention to the intersection of the spheres of work and family, rather than a matter primarily of interest to women and feminist scholars, is central to the regulatory, policy, and institutional challenges which states and policymakers currently face.