Guy Bellemare,[1] Louise Briand,[2] and Martine D’Amours[3]
Abstract
In this chapter, we put forward the notion of “diversified regulation” to elaborate upon and complete that of the “gray zone”. Springing from the idea that states, employers and unions are not the only actors involved in the regulation of work and employment (Bellemare 2000), we propose an analytical framework that not only captures modern regulation but also illuminates emergent mechanisms of regulation and those that are obscured by classical theories of labor relations and positive law. Our analytical framework is based on three key notions: “social labor relation” (D’Amours 2014; D’Amours et al. 2022), “productive configuration” and “control” (Briand 2023b). It also draws on a revision of the concept of actor, a reconceptualization of the nature of rules and a diversification of the scope/objects and levels of regulation. Our analytical framework is illustrated by the study of the conditions of work and employment of unionized educational childcare workers in Quebec’s centres de la petite enfance (“childcare centers”). We conclude this chapter by briefly identifying avenues for research and indicating possibilities for action on the part of governments, unions and social movements.
Keywords: Diversified regulation; work and employment; social actor; social labor relation; productive configuration; control.
Introduction[4]
In this chapter, we put forward the notion of “diversified regulation” to elaborate upon and complete that of the “gray zone”. Springing from the idea that states, employers and unions are not the only actors involved in the regulation of work and employment (Bellemare 2000), it draws on the notions of “social labor relation” (D’Amours 2014; D’Amours et al. 2022), of “productive configuration”, and of “control” as opposed to subordination (Briand 2023b). Briefly put, we propose a new framework for the analysis of the regulation of work and employment and of the changes it has undergone.
The chapter begins with a summary assessment of the idea of the gray zone. This is followed by a presentation of the concepts that underpin our analytical framework, together with a case study illustrating our approach. In concluding, we briefly identify avenues for research and indicate possibilities for action on the part of governments, unions and social movements.
The Gray Zone: An Overview
The gray zone approach is a response to the loss of effectiveness of Fordist regulation,[5] and in particular to the fragmentation of the workplace and the proliferation of non-standard employment that this has brought, with all its consequences for conditions of work, employment and life. It thus registers the emergence in the domain of work of a diversity of configurations of power, under which conditions of employment are no longer governed by instituted rules or procedures but negotiated on a local, case-by-case basis by “rule-makers” (Azaïs et al. 2017). Research in this vein consequently seeks to go beyond a legalistic understanding of employment relations with its binary opposition of subordination and independence, employment and self-employment, to take account of “fuzzy practices, neither legal nor illegal but falling under extra-legal conventions or informal agreements” (Azaïs et al. 2017, 437). Work from this perspective has the merit of having highlighted the growing insignificance of the legal boundaries of the firm, identified non-traditional actors in regulation, and documented emerging practices at the boundaries of canonical categories, economic, sociological, legal and national-statistical. Yet while the idea of the gray zone allows us to go beyond the classical framework for thinking employment, it nonetheless appears to us to be incomplete.
Incomplete, on the one hand, because the idea of “fuzzy practices, neither legal nor illegal” offers no new analytical tools. Incomplete, too, because the notion of the gray zone, or zones, tells us little about how the rules that traditionally regulated work had their effect, and it also fails to take into account the impact of rules intended to standardize products or services, whose consequences for work and employment are in fact significant. In other words, we suggest that it is not enough to note the loss of effectiveness of Fordist regulation, and that we need to find out what rules do govern work and employment in different circumstances, and to analyze them in terms of their nature, object, and level of operation.
To put it briefly, gray zone theory assumes that regulation has shifted to the local level and researchers have thus focused on the study of local or purely contingent work rules, on arrangements between local actors (Azaïs et al. 2017) and on the state’s failure to regulate (Dieuaide 2022). We propose to expand on this basic idea of a shift in the locus of regulation by coupling it with that of diversification. Our notion of diversified regulation is intended to capture the growing multiplicity of rules—public or private, shallow or intensive—that enable and constrain both the provision of work and the production of goods and services, operative at various levels (infranational, national and supranational).
Complementary Concepts for a More Thoroughgoing Analysis of the Gray Zone
We propose an analytical framework that not only captures modern regulation[6] but also illuminates emergent mechanisms of regulation and those mechanisms hitherto obscured by classical theories of labor relations. In doing this, we first present the reconceptualizations developed by D’Amours et al. (2023) in order to understand the different situations in which workers find themselves in the face of the outsourcing of labor. These reconceptualizations can be understood as shifts of focus: from the firm to the productive configuration; from the employment relation to the social labor relation; from subordination to control; from the uniformity of Fordist regulation to fragmented and diversified regulation. We devote the major part of this chapter to diversified regulation.
The productive configuration
The concept of productive configuration (Briand 2023a) draws on the work of many researchers, among them Grimshaw and Rubery (2005) and Flecker and Meil (2010). Indeed, a number of authors have demonstrated the limitations of taking the firm as legal, bounded entity as the frame of reference for the analysis of conditions of work and employment, given the increasing complexity of the organization of production. However, to our knowledge, none has proposed a concept broad enough to encompass the diversity of forms observed, nor suggested ways of dealing with the methodological challenges presented by the analysis of work and employment in the context of the outsourcing of labor. We believe that the concept of productive configuration overcomes these challenges.
A productive configuration can be understood as a social system in the structurationist sense (Giddens 1984), defined by the rules and resources that both enable and constrain the structuration of integration practices. It is within this system that actors divide among themselves the activities involved in producing a product or service, and coordinate the work involved in production. Thus, the productive configuration represents the extension of the division of labor beyond the boundaries of the firm—whatever its form or aims—and expresses the possibilities of coordinating labor across the legal boundaries of the firms involved.
Since a productive configuration is an empirical social system, its scope and the identity of its components are variable and a priori undefined. To study the productive configuration for a given product or service, we first need to identify the firms present in it, as well as the various groups of actors, including workers, who contribute to production.
Any firm that contributes to the production of a good or service is therefore part of the configuration. A firm’s contribution may be direct (giving orders, supplying work, designing and/or manufacturing a component, etc.) or indirect (standardizing the product or service, or standardizing its process, including the work involved). Furthermore, the relationships between firms in the configuration express a variety of relations (domination, subordination, collaboration) that can change over time.[7]
The social labor relation
The social labor relation (SLR) is defined as “the relationship between a given group of workers and the firms or organizations in a position to structure their conditions of employment or work” (D’Amours et al. 2023, 5; see also D’Amours, 2014; D’Amours et al. 2022 and 2023). The SLR can also be defined in terms of its analytical dimensions, which apply to any form of paid work: (1) work organization; (2) workload, schedules, arduousness; (3) compensation; (4) distribution of economic risk; (5) distribution of social risk. The first two dimensions relate to conditions of work, the three others to conditions of employment.
Since the SLR transcends employment status, the legal character of the contract, and the physical and legal boundaries of the firm, it makes it possible to account for the conditions of work and employment of all possible forms of work (employed/self-employed, formal/informal, direct/intermediated, etc.) through a uniform set of analytical categories (D’Amours 2023, 4). The concept of the SLR has notably made it possible to study changes in the conditions of work and employment of home educational childcare providers (UK: regulated childminders) over a 25-year period, and to show how the work of these originally clearly self-employed and “independent” workers has taken on a hybrid form between employment and self-employment (D’Amours, 2023b).
Control
The shift in the scale of analysis and the adoption of the SLR imply, as a corollary, a passage from the notion of subordination to that of control (Briand, 2023). In the work of Briand (2001; 2004; 2016), control structures human activity while also being structured by it. Control is thus conceived as a social construction that can be defined as a set of integration practices that regulate social activities, human work in this case, in a social system (Briand 2001).
In concrete terms, control refers to any procedure, method, etc., that makes it possible to coordinate the work of actors in a productive configuration. Studying the structuration of a worker’s SLR within a productive configuration therefore requires (1) identifying the firms exercising such control and understanding their relationships and the ways in which they influence each other; (2) studying the integration practices that act on a given worker or group of workers, whether salaried or self-employed, informal, etc.; and (3) identifying and explaining the rules and resources that support those practices. In the illustration presented later in this chapter, we focus our analysis on rules only.
Diversified regulation
Empirically, the positivist[8] understanding of labor law has major weaknesses, among them the failure to assess the de facto effectiveness of rules and the limitation of analysis to formal rules (human rights instruments, labor legislation, collective agreements, individual employment contracts, minimum labor standards, etc.). Little consideration is given to unwritten rules,[9] or to those that do not directly concern work (e.g. standards relating to a product or service produced by human labor) which can nonetheless have very significant effects.
Weaknesses are becoming increasingly evident as a result of their [positivist approaches’] difficulty in recognizing either emerging phenomena (e.g., new actors in industrial relations, new modes of non-state regulation of labor relations, etc.), or long-standing phenomena that they have long neglected, such as gender relations, racialized relations and so on (Forrest 1993; Lee and Tapia 2021). (Bellemare 2023, 214–5).
The concept of diversified regulation aims to overcome these weaknesses. We develop it by (1) revising the notion of actor, (2) reconceptualizing the nature of rules, and (3) multiplying the scope/objects and levels of regulation.
Revising the notion of actor
Whether functionalist or neo-Marxist in inspiration, studies of industrial relations have always postulated the existence of three actors: the state and its specialized labor agencies, workers and their organizations, and employers and their organizations. For Bellemare (2000), this is too limited a conception of the actor.
Drawing on structuration theory (Giddens 1984), Bellemare (2000) proposed the first analytical and operational definition of the actors involved in the regulation of work: an actor is an individual, group or institution that is capable, through its own actions, of directly or indirectly influencing industrial relations processes, including influencing the causal powers deployed by other actors in the industrial relations environment. For example, the government may respond to union pressure by passing anti-strikebreaker legislation. The notion of actor has two dimensions: “an instrumental dimension, which refers to the means by which an actor exerts a certain degree of influence on the system, and an outcome dimension, characterized by the goals and ends being pursued” (Bellemare 2000, 388; see also Legault and Bellemare 2008). Actors are identified by their impact on conditions of work and employment, and on the structuration of the industrial relations in question, the measure of that impact—of its relative importance—being the consequences of their actions at different levels in terms of the dimensions identified in the analytical framework.
Reconceptualizing the nature of rules
Secondly, the notion of diversified regulation involves a reconceptualization of the nature of rules through the adoption of Giddens’s (1984) categories. He suggests that there are two types of rules: intensive rules and shallow rules. Intensive rules are tacit and lightly sanctioned, while shallow rules are discursive and heavily sanctioned. Shallow rules may be state rules or written private rules. They derive from laws, policies, administrative directives, contracts, etc., the violation of which can lead to sanctions (fines under labor law, grievance procedures or disciplinary measures, monetary penalties or termination for breach of contract, etc.).
This reconceptualization is important for the analysis of conditions of work and employment as it allows us to better apprehend the relative effectiveness of the various modalities. For example, Legault and Bellemare (2008) showed how the intensive rule of maintaining “reputation” for software developers led workers to deliberately forgo the parental leave they knew they were entitled to by law.
Broadening the scope of the concept of regulation
Finally, the notion of diversified regulation takes account of a wider range of objects of regulation and of spatial scales (i.e., of levels of operation). Diversified regulation recognizes the multiplication of both the actors and the objects of regulation (labor or employment, products or services) and the diversity of modes of regulation (public/private norms, democratic culture, budgetary rules, etc.). For example, D’Amours et al. (2022) showed how contracts concluded between a food producer and a subcontractor had effects on working hours, procedures to be followed, hygiene standards and so forth, violation of its terms possibly leading to the termination of the contract and consequent job losses. Diversified regulation also allows for multiple, overlapping levels of regulation (supranational, national and infranational rules[10]). An example might be rules of gender and race, which, despite their spatio-temporal expansion, manifest themselves in specific ways in different regions and intersections of regions of regulation (on regions, see Bellemare et al. 2018, 489–90).
In short, the evolution of regulation poses the theoretical necessity of moving from a state-centric conception of the regulation of labor relations to a conception of a diversified regulation of labor (Bellemare 2023, 221). This is why our analytical model takes into account a range of dimensions: the actors; the objects of regulation (work or employment on the one hand, product or service on the other); the nature of the rules (shallow and intensive); and the multiplicity of levels of regulation (Bellemare, 2023).
The Case of Quebec’s Childcare Centres:
An Illustration of Diversified Regulation
We illustrate the concept of diversified regulation by studying the conditions of work and employment of unionized educational childcare workers in Quebec’s centres de la petite enfance (“childcare centers” or “CCs”). [11] In Quebec, the gradual recognition by the state of what were initially community daycare centers was accompanied by the professionalization of early childhood services, the creation of feminist models of management (Briand et al. 2006; Gravel et al. 2007) and unionization (Bellemare and Briand 2012). Following the adoption of its Family Policy in 1997, the government of Quebec set up a government-supported childcare system essentially based on a network of non-profit organizations. This network of juridically distinct organizations was placed under the supervision of the Ministère de la Famille (“the Ministry”).
Table 1 summarizes the most notable rules that go to the childcare workers’ SLR (concerning quality of service, child development, democratic management, consultation with the Ministry and regional childcare service groups, together with the Educational Childcare Act 2005 and related regulations, Ministry rules governing the expenses that daycare centers may incur and the rates they are entitled to charge, collective agreements, and Ministry rules relating to the classification and remuneration of posts). In line with our framework, the rules are presented according to their nature and objects. Required standards of service and other rules obscured by conventional analysis appear in italics in the table to distinguish them. The table is followed by a brief description of the childcare workers’ conditions of work and employment showing the effects of the various rules and their interrelationships.
Table 1 – Diversified regulation: the case of childcare workers in Quebec
Object of regulation | Shallow | Intensive |
Product/service
| Educational Childcare Act and related regulations | Ministry’s on-going consultation with childcare groups (in decline). |
Budgetary rules | Democratic child development | |
Collective agreements (work-based group insurance and pension plans), administrative policies, individual employment contracts | Quality of service | |
Work/Employment
| Labor law, Charter of Human Rights and Freedoms, Labor Code | Democratic organizational culture (though in decline within CCs). |
Collective agreements (work-based group insurance and pension plans), administrative policies, individual employment contracts | Non-unionized CCs copy most of the employment conditions of unionized CCs
| |
Budgetary rules | ||
Guide to classification and compensation |
Intensive rules and shallow rules
The intensive rules listed in the table cover all childcare centers, whether unionized or non-unionized. They stem, on the one hand, from the struggle to win government-supported childcare, and on the other, from the collaborative practices of the various stakeholders involved in operationalizing childcare policy during its first decade. The intensive rules of co-management and self-management were, in some cases, enshrined in collective agreements, thus becoming shallow rules. Although the intensive rules of Ministry-provider consultation and organizational democracy remained in effect throughout the study period (1970–2020), we may note a certain weakening of democratic culture within CCs, and a decline in the degree of Ministry consultation with regional childcare service groups. In both cases, practices that rely more on the shallow rules of collective agreements and CC management policy have tended to become more prevalent, following the introduction, for example, of rules that reinforce the right to manage. The Ministry consults less with the various stakeholders in the sector, and when it does, feels less bound by the discussions held with them, and imposes its will more through the development of shallow rules.
Shallow rules from a public source are chiefly represented by the Educational Childcare Act of 2005, which is operationalized through two main regulations: the “Regulation respecting educational childcare services” and the “Regulation respecting reduced contributions”. It is these regulations, together with the Ministry’s financial rules and guide to the classification and remuneration of childcare personnel (Guide concernant la classification et la rémunération du personnel salarié), that dominate the public regulation of the service. The Educational Childcare Act empowers the Ministry to set the rates that CCs can charge parents. This, combined with the financial rules, means that the Ministry has almost total control over CCs’ revenues. The only room for maneuver for CCs is to try to achieve a 100% occupancy rate in order to generate maximum revenue. Finally, Québec’s Labour Code applies to unionized CCs. Shallow private rules are represented by collective agreements and personnel policies adopted by CC boards of directors. The private contracts represented by collective agreements are in fact only partially private, since the Ministry’s financial rules and its guide to classification and remuneration have a decisive influence on the content of those agreements.
The structuration of educational childcare providers’ conditions of work and employment
The intensive rules stemming from the struggles of the entire early childhood care sector to gain recognition for the service and for the value of childcare workers’ work have played an important role in structuring the SLR. Interviews with workers, CC directors and union representatives all point to a general recognition of the importance of a holistic and democratic approach to child development that includes teaching children respect for differences and peaceful ways of resolving conflicts. This approach stems from, and also contributes to, the existence of a widely shared organizational democracy. Such features as worker co-management (e.g. in the evaluation of new employees) and self-management (in certain respects) and democratic decision-making structures have been widely taken up in the collective agreements of unionized CCs, but also feature in the practices and in many of the personnel policies of non-unionized CCs. This organizational democracy, however, is tending to weaken in many CCs as a result of pressure from management and boards of directors to extend managerial rights through new, shallow rules (personnel policy, by-laws voted by the board) and a gradual transformation in the profile of CC managers, more and more of whom have studied management at university and so bring a competitive, bureaucratic logic to bear on their work.
The Educational Childcare Act and related regulations enable the Ministry—without its being the legal employer, and despite the fact that each CC is an independent enterprise in law—to determine minimum qualifications for staff and criteria for the recognition of qualifications obtained elsewhere; minimum staff/child and qualified/unqualified staff ratios; working hours and opening hours; the goods and services that subsidized childcare providers must offer in return for the subsidy; also the educational program for pre-school children and what childcare providers must comply with it in whole or in part; and finally the content of the educational file that must be maintained for each child and who is to be responsible for maintaining it. CCs are subject to inspections by the Ministry to ensure compliance with the educational program, service standards and health and safety requirements.
CCs have to obtain authorization from the Ministry before creating any new job category. Finally, in its guide to classification and compensation, the Ministry specifies the rules for change of category (from unqualified to qualified worker) and for progress along salary scales.
Our description of the case, although brief, shows how the concepts of productive configuration, social labor relation, control and diversified regulation offer a framework for understanding changes in the working and employment conditions of childcare workers. What is notable in the case of Québec is that workers, their union organizations and Quebec-wide associations of childcare centers were initially involved in defining the quality and type of service to be offered, only to increasingly lose this control to the Ministry. Our analysis shows that consideration of the legal relationship between childcare workers and their employers does not capture the complex reality of work and employment, nor the actual regulation that takes place. Shallow rules originating from entities other than the legal employer and the rules of quality of service and organizational democracy represent by far the weightiest component of childcare workers’ SLR. The full case study (D’Amours et al., 2023)[12] includes a description of the structuration of labor relations (including dispute resolution and grievance procedures). In view of the space available, we have chosen not to present these elements in this text.
Conclusion
To put it briefly, gray zone theory assumes that regulation has shifted to the local level and researchers have thus focused on the study of local or purely contingent work rules, on arrangements between local actors (Azaïs et al. 2017) and on the state’s failure to regulate (Dieuaide 2022). We propose to expand on this basic idea of a shift in the level of regulation by coupling it with that of diversification. As a result, we have developed a general framework based on renewed concepts (productive configuration, SLR, control) and an analytical model that includes dimensions ignored by classical theories, namely the objects and nature of rules.
We illustrated this framework with the case of unionized childcare workers in Québec. The same framework has been applied in studies of chicken farming and processing, computer services for business, and ride-hailing services such as Uber. Despite significant differences in the sectors studied, our framework proved robust because it is made up of “sensitizing devices” (as Giddens calls them) that enable the exploration and understanding of complex social systems. We believe that case studies of other sectors will confirm and improve on our proposed framework.
Overall, the framework represents an effort to revise the epistemology of the field of industrial relations studies. Indeed, we believe it is imperative to question the a priori assumptions of classical theories (regarding regulatory actors and the legal boundaries of the firm in particular) and to move away from concepts that flow from them (most notably that of the employment relation characterized by legal subordination). In short, we suggest breaking with the formalism of the firm and opening up to the idea of mapping social systems whose boundaries, actors, relationships and rules are not defined a priori.
We recognize that our framework presents challenges for legal scholars, lawmakers, trade unions and social movements. We believe, however, that this is a necessary step towards devising ways of making negotiable and sanctionable rules that transcend the legal boundaries of the firm and narrow definitions of work and employment.
The legal regulation of conditions of work and employment is becoming less and less efficacious, partly because these protective mechanisms were conceived with reference to paid employment by a single employer. This does not mean that organizational forms derived from outsourcing are exempt from rules, but rather that other types of rules apply, for example, private rules laid down in commercial contracts or government rules concerning the product or service (e.g. budgetary rules in the case of childcare centers or animal welfare rules in the food processing sector). We have argued for the importance of studying the impact, on work and employment, of these intensive and shallow rules, public or private, regulating work or the product or service (D’Amours et al. 2023, 294–5).
Finally, since the concept of diversified regulation strongly emphasizes the existence of rules concerning the product or service (e.g. quality, health, environmental or animal welfare standards, etc.), whose effects on work and employment are substantial and persistent, we suggest that it is urgent to include workers’ organizations in the process of drawing up such rules. The creation of Québec’s early childhood care network is an example of how service regulations can be co-constructed by the State and representatives of employers and employees. The government can also use public procurement, including rules concerning the working conditions of its suppliers’ employees in its calls for tenders. Governments must also strengthen the monitoring of compliance with the regulations governing work and employment, and also the penalties for non-compliance, whether through commercial pressure (with a delinquent firm losing its government contracts), strategic surveillance of at-risk sectors (restaurants, hotels, etc.) or joint surveillance with union and community organizations. Readers can refer to the conclusion of D’Amours et al. (2023) for other courses of action aimed at restoring power to workers in the new productive configurations resulting from outsourcing.
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- Guy Bellemare is an Associate Professor in the Department of Industrial Relations at the Université du Québec en Outaouais.↵
- Louise Briand is an Associate Professor in the Department of Social Sciences at the Université du Québec en Outaouais.↵
- Martine D’Amours is an Associate Professor in the Department of Industrial Relations at Laval University.↵
- The conceptual proposals and the case presented in this chapter are the work of a group consisting of Martine D’Amours, Louise Briand, Guy Bellemare, Frédéric Hanin and Leticia Pogliaghi. This team developed a research program entitled Les nouvelles configurations de la relation d’emploi et leurs impacts sur le travail, l’emploi et l’action collective (Subvention Savoir CRSH, no. 435-2014-1404). The results and conclusions of this program were published as D’Amours et al. (2023).↵
- See Trudel (2013) on the notion of the effectiveness (or efficacy) of law and rules.↵
- In short, modernity is characterized by the development of capitalism, industrialism, the growth of administrative power through the control of information and the establishment of forms of organization of human activity in space-time, and the control of the means of violence (Giddens, 1984). Epistemologically speaking, modernity is characterized by the development of positivist and neopositivist conceptions of science that have permeated other dimensions of modernity, such as law.↵
- We suggest that firms that dominate a configuration at any given time may transfer economic and social risk to less powerful entities and their workers. As a result, workers performing similar tasks within the configuration may be offered different conditions of work and employment, depending on their employer’s position in the configuration and their own position within their firm (D’Amours et al. 2022).↵
- Scholars of labor law generally speak of “positive law”.↵
- In “studying value chains, Mahy et al. (2019) and MacKenzie and Lucio (2019) have proposed descriptive rather than analytical definitions of the notion of formal and informal rules that are based on a state-centric conception of regulation and tend to downgrade the importance of informal rules.” (Bellemare 2023, 217). For these authors, informal rules are local cultural rules or private written rules. Finally, they do not explain, either, how non-compliance with unwritten rules can be sanctioned.↵
- The terms supranational and infranational are intended to avoid the pitfalls of defining the level of analysis a priori, or of considering only political bodies (municipalities, regions, nation-states, international institutions). These bodies may be more or less important, and may not be the only relevant “regions” for analysis.↵
- This section is a revised (and translated) version of Bellemare (2023, 246–54).↵
- The complete case study and summaries in English and Spanish can be found on our research group’s website (http://www.nouvellesconfigurations.rlt.ulaval.ca/).↵


