II ‘SER-centrism’ in non-standard work regulation

The recognition that non-standard workers have been subordinated by labour law frameworks, and a widespread acceptance that waged work should more readily align with caring responsibilities, have coalesced in recent decades to found a pervasive suspicion of the Standard Employment Relationship. The model is rejected principally for the gender norms it has embodied, which have rested solidly on the male breadwinner / female caregiver paradigm (e.g. Bosch, Reference Bosch2004; Fudge and Owens, Reference Fudge and Owens2006). The unease embraces the SER in its guise as a model for labour market regulation. A strand of the literature centres on the model as it has been embedded in labour law frameworks, to demonstrate that this normative model has functioned to exclude the vulnerable, and predominantly women, from legal protection (see in particular, Fredman, Reference Fredman1997; Fudge and Owens, Reference Fudge and Owens2006).

These deficiencies in labour law frameworks have been exposed during the period since the late 1980s, in which spiralling labour market fragmentation in the advanced industrialised economies exhausted the capacity of conventional labour law structures to protect significant proportions of the workforce, while the quest for labour market flexibility precluded coherent legal reform (Fredman, Reference Fredman, Fudge and Owens2006; McCann, Reference Mccann2008). Simultaneously, labour market policy actors were slowly persuaded of the need to extend labour market policy to embrace the ‘informal sectors’ of low-income countries and, by extension, the diverse working relations characteristic of informal work (ILO, 1999). Subsequently, legal frameworks were devised that aimed simultaneously to liberalise non-standard work and to address exclusion and disadvantage (see Murray, Reference Murray1999; Vosko, Reference Vosko2006; McCann, Reference Mccann2008). The EU embarked on a stuttering legislative project in the early 1980s that ultimately generated a transnational-level frame for Member State regulation of part-time,Footnote ³ fixed-termFootnote ⁴ and temporary agency work.Footnote ⁵ Beginning in 1994, the ILO adopted standards on home work,Footnote ⁶ part-time work,Footnote ⁷ private employment agencies,Footnote ⁸ the employment relationshipFootnote ⁹ and, most recently, domestic work.Footnote ¹⁰ Similar measures have been adopted at the national and subnational levels across the OECD (including in Australia, Canada, Japan and Korea).

Scholars have soundly critiqued the exclusionary dynamics of the SER as it was enshrined in the labour law frameworks perfected in the mid twentieth century. More recently, however, concern has been expressed about the enduring presence of the model in the project of non-standard work regulation, and consequent incapacity of these frameworks effectively to curb labour market precariousness. This claim is particularly compelling, since the project of non-standard work regulation, at least in policy rhetoric, is commonly framed as a lifeline for precarious workers.

This important critique has been contributed by Vosko (Reference Vosko2008, Reference Vosko2011). While accepting that alignment with the SER can improve the position of some precarious workers, Vosko argues that the standard model has functioned in non-standard work regulation primarily to protect individuals whose working patterns and relations most closely match the contours of the model. The regulatory responses to non-standard work remain tied to the standard model and its labour force participation norms, particularly those of female caregiving, citizenship and age-based differentiations. Her conclusion is that domestic and transnational social policy should abandon the SER, together with any aspiration to a unitary model of employment.

Vosko offers two linked critiques. The first is at the level of state intervention across the range of cognate policy spheres – worker protection, gender relations, childcare, training, social security, migration, etc. At this level, she argues, SER-centrism operates by conflating working relations that are non-standard with those that are precarious. Laws and policies conceptualise precarious employment as driven primarily by deviation from the SER. In consequence, policy actors rely primarily on non-standard work laws to combat labour market precariousness. These legal regimes are thereby decontextualised; oblivious to the drivers of non-standard work. Part-time work regimes are not designed to disrupt the association of part-time hours with the gendered division of domestic labour. Fixed-term work laws are adrift from state policy on migration, despite the prevalence of migrant workers in the temporary labour forces of receiving countries. Labour market precariousness, in an SER-centric policy world, is addressed exclusively as divergence from the standard model.

Vosko's second critique targets regulatory design as an adjunct of this broader tendency to conflate precariousness and non-standard work. Framing the SER – or close proximity to it – as a solution to precariousness, non-standard work regimes operate primarily to nudge forms of employment that fall just outside the standard model within its range. The outcome is that those in working relations that deviate sharply from the SER are the least likely to benefit.

Vosko substantiates this contention by highlighting aspects of non-standard work regimes that privilege SER-proximate workers. One illustration is embedded in measures that proscribe discrimination against non-standard workers.Footnote ¹¹ Vosko highlights the comparative mechanism on which these regimes hinge, which mandates equality with individuals whose employment relationships mirror the SER in the relevant dimension (e.g. part-time workers with full-timers, etc.). The necessity to identify a comparator renders these regimes capable of aiding only limited numbers of workers (see further, McCann, Reference Mccann2008). Further, as Vosko notes, the permissible comparator – the ‘comparable worker’ – is defined, in the more constrained of these instruments, to demand additional affinities with the non-standard worker. Thus in the Part-Time Work Convention, the ‘comparable worker’ is configured as a full-time worker, inter alia, in ‘the same type of employment relationship’ as the part-timer.Footnote ¹² This notion of an employment relationship in the Convention was equated with the duration of employment, thus distinguishing between open-ended and fixed-term contracts (whether temporary, seasonal or casual) (ILO, 1994, para. 38). The outcome is that the Convention entitles only part-time workers who are engaged on a permanent basis to compare their terms and conditions with the class of employees likely to be in the most advantaged position: permanent full-timers. Part-timers who are also engaged on a fixed-term basis are restricted to comparisons with other temporary workers.Footnote ¹³

The EU non-standard work regime showcases another incarnation of regulated SER-centrism, in this case emerging from the instruments in the guise of an integrated normative regime. As Vosko points out, the earlier instruments – the Part-Time Work and Fixed-Term Work Directives – introduced open-ended entitlements to equal treatment (in ‘employment conditions’,Footnote ¹⁴ understood expansively to embrace all labour-related entitlements with the exception of social security rights (Commission of the European Communities, 2003)). The Temporary Agency Work Directive, in contrast, entitles temps to equality only in ‘basic working and employment conditions’,Footnote ¹⁵ which are defined to embrace working time, pay, the health and safety aspects of maternity protection, access to employer-provided childcare facilities and, by virtue of an earlier Directive,Footnote ¹⁶ health and safety protections (see further, Countouris and Horton, Reference Countouris and Horton2009; Vosko, Reference Vosko2009; McCann, Reference Mccann2012). At the national and subnational levels, too, efforts to expand labour law protections to non-standard workers tend to founder on a perceived need for affinity with the existing protected workforce. Vosko points to the Canadian experience, in which proposed reforms to expand the scope of the federal Labour Code have circled conventional judicial conceptions of employment (Arthurs, Reference Arthurs2006).Footnote ¹⁷

Vosko's analysis confirms that the mechanisms so far designed to regulate non-standard work tend either to preclude or impede protection for individuals in working relationships distant from the standard-form (see also, McCann, Reference Mccann2008). As she argues, such SER-centric approaches to regulation are least likely to improve wage–work relationships that deviate sharply from the employment model: ‘the greater the deviation from the SER and its associated participation norms, the lower the level of protection they provide’ (Vosko, Reference Vosko2011, p. 59).

This paper takes Vosko's important contribution as its point of departure. The aim is to investigate further the role of the SER in non-standard work regimes and, by extension, in contemporary labour market regulation. The focus is Vosko's second – regulatory design – critique. The premise is that it is of some urgency to refine the analysis of SER-centrism, due to the coincidence of two recent trends of contrasting logic: the intensified casualisation of working relations in the wake of the global financial crisis and the entry of domestic work into the congregation of regulated non-standard work-forms.

The spreading casualisation in the wake of the crisis points to the complex problem of divining the regulatory frameworks that are suited to profoundly fragmented labour markets. It has become essential, that is to say, properly to understand the regulatory options for settings in which the SER has already substantially been abandoned or historically exercised little influence. Conceived in the months after the financial crisis, the ILO Domestic Workers standards have triggered important global efforts to regulate one of the domains of casual work, spurring debate and legal reforms at the domestic and transnational levels that may illuminate this problem (on the EU debates, see European Parliament, 2010; McCann, Reference Mccann2012). Signifying both an international-level endorsement of the state's capacity to regulate care work in the private sphere, and a recognition of the hostile conditions prevalent in a major source of women's employment across the developed and developing worlds, the project of domestic work regulation is also the single most significant contemporary attempt to engage with the regulatory demands of profoundly casualised and informal working relations.Footnote ¹⁸ This moment of concerted political will to regulate domestic work, then, presents an opportunity to explore and speculate on frameworks and techniques for the regulation of fragmented labour markets.

It has been argued elsewhere that projects of non-standard work regulation should be integrated into broader analyses of the evolution of labour law in the post-crisis era. As a research strategy, this approach can illuminate both the risks that non-standard work laws pose to ‘mainstream’ labour law frameworks and the potential of these regulatory projects to generate innovative regulatory strategies (see further, McCann, Reference Mccann2012). This paper pursues such a ‘holistic analysis’ of domestic work regulation to argue, in contrast to Vosko, that SER-centrism should be a central feature of non-standard work laws. Further, it contends that SER-centrism promises to strengthen the protection of a group of workers whose arrangements diverge profoundly from the standard model, namely those in casual work.

III Selective nostalgia: in defence of the Standard Employment Relationship

Reflecting on the evolution of labour law in an era when the fragmentation of the waged labour relationship was less advanced, Hepple (Reference Hepple1995) cautioned that labour law's future would not be built from nostalgia for the values of the past. This paper argues for a ‘selective nostalgia’, which sifts through the eroding regulatory regimes and discourses of the post-crisis era to identify the values, norms and regulatory strategies that should be preserved.Footnote ¹⁹ Such an evaluation would extend to the SER as both normative model and prompt to regulatory strategy. The impetus is the fear of an unduly hasty, or too comprehensive, dismissal of the SER, in an effort to protect groups that the regulatory embedding of this paradigm has marginalised. To dismiss entirely the enduring relevance of the ‘industrial model’, it is argued, risks hastening the loss of an imagery essential to preventing the further deterioration of working life among a substantial element of the labour force, including the most disadvantaged.

This section pursues the enduring relevance of the SER as it is emerging in the expansion of non-standard work regulation to embrace domestic work. The underlying research has its origins in a contribution to the standard-setting exercise that generated the ILO Domestic Workers standards. That project produced a study on ‘The Legal Regulation of Working Time in Domestic Work’ (WTDW), which elaborated a conceptual framework for regulatory intervention and a set of principles to underpin legal reform (see McCann and Murray, Reference Mccann and Murray2010, Reference Mccann and Murray2014). The project also generated a range of interconnected regulatory strategies, characterised as a ‘Framed Flexibility’ model, which is grounded in the needs and vulnerabilities of domestic workers and the demand for their labour.Footnote ²⁰

The starting point for that investigation was the available data on working time, which, although sparse, confirms the working hours of domestic workers to be problematic in both duration and scheduling. Domestic workers' hours are frequently excessive or even completely open-ended. They are also unpredictable and embrace substantial periods of ‘on-call’ or ‘standby’ time (during which workers remain available to the hirer to perform the central tasks of their job) (see ILO, 2009, 2013). Their working hours therefore limit the capacity of domestic workers to sustain adequate family and private lives, whether to engage in family-building, to undertake caring responsibilities or simply to preserve a dimension of their lives distinct from their engagement in waged labour. It is notable, further, that the unpredictability of domestic workers' hours has a distinct impact: where it is impossible for these workers to predict when they will be relieved of paid work, the quality of their time beyond waged labour is undermined (e.g. Clement, Mathieu, Prus and Uckardesler, Reference Clement, Mathieu, Prus, Uckardesler, Vosko, MacDonald and Campbell2009).

These divergences from the temporal dimensions of the SER have been instrumental in the exclusion of domestic workers from protective legal frameworks. Indeed, domestic work tends to be exiled by working time regimes even when it comes within the ambit of other labour law subfields (ILO, 2009, 2013).Footnote ²¹ The most prominent illustration of this dynamic is the EU legal order: domestic workers are covered by a range of labour law directives, yet specifically excluded from the working conditions norms, the Working TimeFootnote ²² and Pregnant WorkersFootnote ²³ Directives (see further, McCann, 2012). This outcome, then, represents the exclusionary brand of SER-centrism highlighted by Vosko, which holds domestic workers hostage to a policy narrative of their working hours as inescapably ungovernable. The WTDW study found the apt regulation of domestic work, however, to be inchoately theorised in the academic literature, and the international-level debates on the ILO instruments exposed widespread confusion among policy-makers about the rationales and strategies of working time regulation (ILO, 2009).Footnote ²⁴

As part of its response to this conceptual and strategic confusion, a central conclusion of the WTDW study was that a ‘standardisation strategy’ should be adopted for domestic work under which an adjusted version of the SER would underpin legal frameworks. This section returns to the call for standardisation, to reflect on it in more depth and to situate it within the academic debates on the role of the standard model in the regulation of contemporary labour markets.

To this end, it is worth returning to certain of the proposals for legal regulation contained in the WTDW study. The first is uncomplicated: to subject domestic work to conventional hours limits and rest periods, albeit subject to derogations to accommodate the unpredictable demands of caring labour.Footnote ²⁵ This proposal draws on Bosch's (Reference Bosch2004) pivotal distinction between substance and form in the SER. The substance of the standard model, Bosch asserts, is determined by its functions. These he configures to embrace the model's traditional role of (i) protecting employees against economic and social risks, (ii) reducing social inequality and (iii) increasing economic efficiency, and to advance the two objectives that are tailored to contemporary labour market objectives, of (iv) ensuring equal access to employment for men and women and (v) supporting lifelong learning.

Bosch's central insight is that while the substance of the SER remains relevant to early twenty-first-century labour markets, its form is susceptible to evolution. To structure contemporary labour markets, he proposes a ‘flexible SER’, which adjusts the standard form as necessary while retaining its protective elements. Thus, with regard to the central concerns of this paper – the standard model's temporal and organisational dimensions – Bosch observes that the traditional model rested on full-time employment and on modes of work organisation grounded in the eight-hour day or full-time week. To found a revived SER, he suggests measures to promote internal flexibility, extend opportunities for individuals to select their working hours, and facilitate a more fluid distinction between full-time and part-time work.

In calling for the imposition of derogable hours limits on domestic work, then, the WTDW study borrowed the logic of the flexible-SER. This proposal recognises that a decent working life necessitates constraints on the availability of the regulated worker's labour that are sufficient to protect her health, well-being and private time. To that end, the Framed Flexibility model retains the principal temporal attributes of the standard model (certainty, regularity and the preservation of social and community time), while recognising that forms of domestic work that involve personal care must escape the strictures of standardised working time, at least periodically.

The second proposal in the WTDW study is more novel. The study offered a classification of temporal features of domestic work that are susceptible to regulatory intervention: unpredictable hours (daily, weekly, annual); extensive spans of hours or split shifts (in which the domestic worker performs daily hours across fragmented time periods); long and unpredictable periods of on-call duty; and excessively short hours, paired with the related low income. Recognising that the techniques characteristic of conventional labour law frameworks do not adequately grasp, or respond to, fragmented working patterns of these kinds, it has been suggested that regulatory measures should be designed specifically to allay fragmentation (see McCann and Murray, Reference Mccann and Murray2014, pp, 21–22).

This proposal spawned a set of interlinked legal strategies. One suggestion is to prohibit hiring on a casual (‘as and when required’) basis, to ensure that domestic workers are certain of their schedules in advance and to escape the precarious incomes associated with casual work.Footnote ²⁶ To prevent very short hours, it is proposed that domestic workers should be compensated when they report for work to find that they are required for only a few hours.Footnote ²⁷ Finally, a ‘unitary model’ of working time was championed, under which on-call hours count fully towards working hours and wages. The aim is to avert the potential for fragmentation that is latent in legal strategies that purport to bifurcate working time into ‘active’ and ‘inactive’ components.Footnote ²⁸

Most significantly for present purposes, the WTDW study encouraged experimentation with legal mechanisms that are designed to prompt the construction of (flexibilised) SER-type relationships from fragmented daily schedules. These techniques cannot be derived from conventional labour law frameworks, in which ‘standardisation’ has inevitably been of little import. A degree of innovation is therefore essential, to devise fresh techniques suited to this newly urgent objective.

The study proposed one such novel regulatory method: a system of incentives for hirers to schedule working hours continuously.Footnote ²⁹ A regulatory model was designed to identify a span of hours over which the domestic worker's daily hours are, optimally, to be scheduled, and to mandate stricter daily hours limits for those who perform work outside this span.Footnote ³⁰ This model is animated by a broader principle of ‘innovative regulation’, which recognises the regulatory response to domestic work as necessarily complex and uncertain, and therefore inescapably to entail a degree of experimentation (McCann and Murray, Reference Mccann and Murray2010; see further, Fenwick, Howe, Marshall, and Landau, Reference Fenwick, Howe, Marshall and Landau2007; Lee and McCann, Reference Lee and Mccann2011; Frey, Reference Frey, Lee and McCann2011).Footnote ³¹ The model can also be aligned with modern labour law scholarship's heightened recourse to regulatory theory, specifically to the line of research that investigates the potential of financial and other incentives as tools of effective regulation (see, e.g., Howe, Reference Howe2006). It brings to this literature – most often examining government contracting – an interest in modes of incentivisation that are tailored directly at influencing the choices of private employers.

What, then, do these proposals for regulatory strategy contribute to the academic debates on the regulation of fragmented labour markets and precarious work? One of the central insights of the WTDW research, implicit in the study, was that the effective regulation of domestic work demands a theory of the SER in contemporary labour regulation. The overarching objectives of regulatory intervention in the domestic work sphere were identified as preserving worker health and well-being, ensuring a decent and predictable income, limiting uncertainty, sustaining meaningful family and private lives, and facilitating unpaid domestic labour. The process of reflection on how to regulate domestic work, prompted by the debates on the international standards, confirms the SER as the regulatory model that is capable of realising this set of outcomes.

In this light, it becomes apparent that underlying each of the mechanisms just discussed is an aspiration to construct the SER. Embedding a flexible-SER as a model for regulatory frameworks is the most convincing method of ensuring the constrained working hours and coherent schedules that are essential to a decent working life and to gender equality. At least in its temporal, organisational and remunerative dimensions, then, the SER should be understood as intrinsic to effective labour market regulation. Through the domestic work project, the flexible-SER is confirmed as an ideal, which can be taken to be both an envisaged outcome of regulatory intervention and a model for the design of legal frameworks. The challenge at this juncture is to determine the regulatory strategies that have the capacity to embed the flexible-SER in contemporary labour markets.

IV Towards ‘reconstructive labour law’: specific regulation strategies in fragmented labour markets

Bosch's elaboration of the flexible-SER dates from a decade ago, when the pressures towards labour market fragmentation were neither so intense nor widespread. His central preoccupation, further, is the welfare regimes of continental Europe, in which the standard model has survived comparatively unscathed, even in the wake of the crisis (Rubery, Reference Rubery2011).Footnote ³² Bosch's frame of analysis is shared with much of the literature on non-standard and precarious work: implicitly, it envisages regulatory contexts in which the SER remains dominant, if under intense pressure, and associated with gender norms that inhibit women's labour market participation. The central concern of this literature, in consequence, is the standard model's exclusionary dynamics. It therefore gravitates towards exploring mechanisms to relax the standard model's strictures, and thereby to renew its influence. The strategies it explores are tailored to uphold the substance of the SER, while endowing it with a flexiblised form.

This paper departs from the bulk of the precarious work literature in this regard. It revisits the flexible-SER in the wake of the crisis; after a decade of scholarly work that has elaborated the regulatory demands of precarious work and informality; and with a focus on fragmented labour markets, in which the SER is elusive, contested or defeated. In this context, the regulatory strategies that were outlined above approach the problem of the standard model's enduring influence by a different route. They are not tailored to slacken, but rather to solidify, the model, in contexts in which it has already been abandoned, or has failed to seed in the major part of the workforce (schematically, respectively the market liberal regimes of the advanced industrialised world and the ‘informalised’ labour markets of the global South).

This call for an ‘SER-constructive’ approach has implications for regulatory strategy. In noting that the form of the SER is susceptible to evolution, Bosch was only tangentially interested in regulatory design. He counts legal regulations among the ‘stabilising elements’ that have sustained the SER, and deregulation as a factor in its decline (Reference Bosch2004, pp. 618, 627). Bosch does not attempt to design a blueprint of how effectively to regulate to sustain, retrieve or construct this model. It is apparent, however, that regulatory design is crucial to the (re)construction of the SER in fragmented labour markets. The process of identifying the most effective legal frameworks is especially urgent if they are to be tailored to the labour markets of low- and middle-income countries – the subject of serious research efforts that are beginning to generate detailed proposals for regulatory experimentation (see Fenwick et al., Reference Fenwick, Howe, Marshall and Landau2007; Teklè, Reference Teklè2010; Lee and McCann, Reference Lee and Mccann2011; McCann, Lee, Belser, Fenwick, Howe, and Luebker, Reference Mccann, Lee, Belser, Fenwick, Howe and Luebker2014).

To begin the reflection on the kind of strategies that might be needed, it is worth returning to a typology, elaborated elsewhere (McCann, Reference Mccann2012), of the mechanisms that have been integrated into labour law schema in recent decades to regulate non-standard work. This typology identifies three dominant strategies:

1. (1) Expansion: the extension of generally applicable norms to non-standard workers (to establish universal minimum standards);

2. (2) Equal Treatment: the enactment of legal entitlements for non-standard workers to be accorded equal treatment with comparable standard workers; and

3. (3) Specific Regulation: the design of regulatory measures and techniques tailored to the specificities of distinct non-standard work-forms.

Drawing on the typology, the SER-centrism critique outlined in Part II comes into sharper focus, and its relevance and scope can be examined in more detail. It is apparent that this critique is valid (if not inevitable) when levelled at the Expansion and Equal Treatment strategies. Yet a form of SER-centrism, it can be argued, is essential to strategies of Specific Regulation.

The Specific Regulation strategy has not taken centre stage in legal interventions on non-standard work. The Equal Treatment approach in particular has become the default protective mode in settings in which non-standard work has been acknowledged as a valid object of regulatory policy. The prominent exception is the EU Fixed-Term Work Directive, which hosts a standardisation strategy to accompany its equal treatment framework (see further, Murray, Reference Murray1999; McCann, Reference Mccann2008). By limiting the renewal of fixed-term contracts, the Directive implicitly upholds the SER in the duration dimension, by favouring its legal analogue, the indefinite contract.Footnote ³³

Yet it can convincingly be argued that the Specific Regulation strategy is crucial to fragmented labour markets (McCann, Reference Mccann2008, pp. 140–141, 167–168; see also Ewing, Reference Ewing1996, pp. 95–96). There is a critical role for labour law, it has been contended in this paper, in building the SER from diverse work-forms (or in novel zones of regulation). This insight is compelling for the investigation of SER-centrism, in that it militates against the proclivities of the standard model identified by Vosko in the other strategies of non-standard work regulation. Rather than the further marginalisation of profoundly non-standard work that Vosko highlights in the unfurling of the Expansion and Equal Treatment strategies, it has been suggested that the Specific Regulation strategy should embrace this model to encourage the construction of SER-type relationships.

Further, as signalled earlier, it can be contended that SER-centrism has the potential to aid a section of the labour force that profoundly diverges from the SER – the casual workforce, called upon by hirers to work as and when required (Burchell, Deakin and Honey, Reference Burchell, Deakin and Honey1999). The WTDW study recognised and investigated domestic work as a form of casual work: frequently performed on an informal basis, without a contract, as and when required, in the absence of any continuing expectations of work. This paper contends that the role of regulatory intervention in fragmented labour markets should be understood, centrally, as constructing a coherent working relationship from intermittent or unpredictable episodes of economic exchange. Labour law, it is argued, should assume a new role: a reconstructive role, which builds from a series of dispersed engagements a coherent and protective working relationship (see further, McCann and Murray, Reference Mccann and Murray2014).

The need for specific regulation, as an element of this broader legal policy objective, is only beginning to be appreciated. Most prominently, recent policy and public debate in the UK has centred on whether and how to regulate casual work, characterised as ‘zero-hours contracts’. Legislation presently before Parliament singles out these forms of work.Footnote ³⁴ The stated aim is to tackle the disadvantage encoded in casual work (Department for Business, Innovation and Skills, 2014). Yet the draft legislation targets only the facet of ‘exclusivity’, by prohibiting employers from preventing ‘zero hours’ workers from working for another hirer.Footnote ³⁵ More fundamental aspects of the broader casualisation of work have so far been overlooked in this regulatory project.Footnote ³⁶ Freedland (Reference Freedland2014) has pointed to the need for clarification of the employment status of these workers. Yet a comprehensive approach towards the broader casualisation of work would also demand that casual working relations are understood as emerging not only from hiring or contractual strategy but also from hours scheduling.

Labour law scholarship has tended to address casual working relations as they emerge, and are regulated, on the plane of contractual form (Davies, Reference Davies2007; McCann, Reference Mccann2008). Yet casual work, if it is to solidify as a legal concept or object of legal intervention, should be conceptualised also as a function of the arrangement and predictability of working hours, and of the capacity of the employer to fragment those hours (McCann and Murray, Reference Mccann and Murray2014). This conception can sustain strategies, such as those outlined in Part III, to address the disintegration of the employment relation into casualised engagements, irrespective of whether these working relationships are framed within an enduring contractual relationship.