Who Is a 'Worker' in International Law?

Comparative Labor Law and Policy Journal, Vol. 37, No. 3, pp. 691-725, 2016

Sydney Law School Research Paper No. 16/75

36 Pages Posted: 16 Aug 2016  

Breen Creighton

RMIT University

Shae McCrystal

The University of Sydney Law School

Date Written: August 15, 2016

Abstract

This article discusses the problem of the meaning of the term ‘worker’ as used in ILO Standards, with particular reference to the principles of freedom of association, both in terms of the constitutional obligation to respect those principles, and of the core freedom of association Conventions. It examines the history of attempts to set standards which categorise workers, including the ill-fated attempt in the late 1990’s to establish a Convention on Contract Labour, which eventually led to the adoption of the Employment Relationship Recommendation 2006. It also considers other standard-setting instruments - such as the Work Health and Safety Convention 1981, and the Domestic Workers Convention 2011 - where the distinction between ‘employees’ and ‘workers’ appears to be of particular significance.

The article explores a dilemma which has confronted the standard setting activities of the International Labour Organisation since its establishment in 1919. To what extent should ‘workers’ whose interests are to be protected or promoted under International Labour Standards be equated with those individuals who are engaged under what Anglo-Saxon legal systems would regard as contracts of employment? In particular, to what extent should Standards apply to individuals who are engaged under some form of dependent relationship, but who are not, in a technical sense, ‘employees’?

Keywords: Worker, ILO, freedom of association, Employment Relationship Recommendation, employee or contractor, dependent contractor

JEL Classification: K10, K30, K31, K33

Suggested Citation

Creighton, Breen and McCrystal, Shae, Who Is a 'Worker' in International Law? (August 15, 2016). Comparative Labor Law and Policy Journal, Vol. 37, No. 3, pp. 691-725, 2016; Sydney Law School Research Paper No. 16/75. Available at SSRN: https://ssrn.com/abstract=2824176

Breen Creighton

RMIT University ( email )

124 La Trobe Street
Melbourne, 3000
Australia

Shae McCrystal (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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