The employment relationship is the legal link between employers and employees. It exists when a person performs work or services under certain conditions in return for remuneration.
It is through the employment relationship, however defined, that reciprocal rights and obligations are created between the employee and the employer. It has been, and continues to be, the main vehicle through which workers gain access to the rights and benefits associated with employment in the areas of labour law and social security. The existence of an employment relationship is the condition that determines the application of the labour and social security law provisions addressed to employees. It is the key point of reference for determining the nature and extent of employers' rights and obligations towards their workers.
The issue has become more and more important because of the increasingly widespread phenomenon of dependent workers who lack protection because of one or a combination of the following factors:
- the scope of the law is too narrow or it is too narrowly interpreted;
- the law is poorly or ambiguously formulated so that its scope is unclear;
- the employment relationship is disguised;
- the relationship is objectively ambiguous, giving rise to doubt as to whether or not an employment relationship really exists;
- the employment relationship clearly exists but it is not clear who the employer is, what rights the worker has and who is responsible for them; and
- lack of compliance and enforcement.
This is why points such as the following need to be addressed:
- When does an employment relationship exist?
- What is an ambiguous employment relationship?
- What is a disguised employment relationship?
- What is a "triangular" employment relationship?
- Who is an employee?
- Who is an employer?
To address these issues, a general discussion took place on the scope of the employment relationship in 2003 and in 2006 the International Labour Conference adopted the Recommendation (No. 198) concerning the Employment Relationship. This Recommendation covers:
- the formulation and application of a national policy for reviewing at appropriate intervals and, if necessary, clarifying and adapting the scope of relevant laws and regulations, in order to guarantee effective protection for workers who perform work in the context of an employment relationship;
- the determination - via a listing of pertinent criteria - of the existence of such a relationship, relying on the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement that may have been agreed between the parties; and
- the establishment of an appropriate mechanism - or the use of an existing one - for monitoring developments in the labour market and the organization of work so as to be able to formulate advice on the adoption and implementation of measures concerning the employment relationship.
In preparation for these discussions at the ILC, the Office undertook a number of national studies that demonstrate that many workers suffer from a lack of protection arising from disguised or ambiguous employment relationships, relationships that fall outside the scope of legislation, are under-regulated, or are ignored by enforcement bodies.
Country studies: Argentina (Español); Australia; Brazil (Portugués) ; Bulgaria; Cameroon (Français); Chile (Español); Costa Rica (Español); Czech Republic; El Salvador (Español); Finland; France (Français); Germany; India; Italy; Ireland; Jamaica; Japan; Korea; Morocco (Français); Mexico (Español); Pakistan; Panama (Español); Peru (Español); Philippines; Poland; Russian Federation; South Africa; South Africa (update); Slovenia; Sri Lanka; Thailand; Trinidad and Tobago; United Kingdom; Uruguay (Español); United States; Venezuela (Español).
The ILO, furthermore, assists constituents in developing national policies and setting up monitoring and implementation mechanisms. It also promotes good practices at the national and international levels concerning the determination and use of employment relationships.