Riccardo Del Punta
Professore ordinario di Diritto del lavoro, Università degli Studi di Firenze
The literature on the issue of defining the meaning and value of work highlights two main tendencies.
The first tendency is preconizing the end of the work-based society. The most important proposal, in this respect, is that of the Universal Basic Income. But to mention another even more radical one, there is the idea advanced by the Italian philosopher Maurizio Ferraris (“Scienza nuova. Ontologia della trasformazione digitale”), on the basis of which the “work” of the future should be considered the activity which each of us performs daily by uploading data on the web. According to Ferraris this activity should be remunerated through a “mobilization salary”.
The second tendency entails the widening of the definition of work, which means that, while work is in danger of being resized from the outside, at the same time it is trying to regain space by expanding conceptually.
Let me focus on this second trend. It is true that labour law – taken as a cultural discourse – has never really tried to conceptualize work. But this happened simply because it did not need to do so. In fact, labour law has been, since its origins, the law not of all workers, but of a specific category of worker, the employee of the industrial sector produced by the Industrial Revolution. The worker of Karl Marx, and before him, Adam Smith.
But, in a sense, the overlapping between labour law and the area of subordination came from even further afar, that is – as Robert Heilbroner wrote in a beautiful paper titled “The Act of Work” – from the original identification between work and submission.
Work, Heilbroner argues, was lacking in primitive societies where there were activities and struggles for survival, but not work as it later became known.
Work was a consequence of property, which allowed a minority of people – including the free citizens of Athens and Rome – to restrict free access to natural resources and impose slave labour on others.
Even though work has broken free from the extreme forms of submission that characterized slavery and serfdom in the past, the structuring of work through a relationship of dominion and submission has also remained in the scenario of the first Industrial Revolution, to the point that Marx would have spoken of the proletariat as a “modern slave”.
This restricted the cognitive horizon of the rising labour law, whose core mission became that of compensating the inequality of power inherent in the employment relationship, which excluded from the scope of the discipline a number of work activities that could not be traced back to a relationship of dominion and submission. The most evident example is that of self-employed labour.
In the meantime, however, the fact that labour was performed under a contract, even though only apparently free, introduced the dimension of freedom and equality into this relationship. An almost non-existent dimension at the beginning, but which has progressively broadened also thanks to the action of labour law, both legal and collective.
This has produced long-term dynamics, which has highlighted, in the eyes of today, a contradiction in the dominant paradigm. This has to do with the growing awareness that limiting the scope of labour law to the employee is not acceptable, as it contradicts the inspiring values of the discipline which require us to look at whatever work situation which is worthy of protection.
The need thus emerges to eradicate the exclusive reference to the situations of subordination and get the concept of work back on its feet and centred around the person who works and his/her needs.
But which features and needs of the person must be taken into consideration? In my view, the most complete and flexible instrument of knowledge to answer this question is the capability approach developed by A. Sen and M. Nussbaum.
Every person is looked at through this lens in relation to their welfare, but such welfare not only depends on possession of given resources, but essentially on the number and quality of capabilities allowing that person to achieve the sort of functioning they have reason to value. The purpose of regulatory action should therefore be that of promoting the greatest development of capabilities – or substantive freedoms – at work, in order to give the largest number of people the chance to live a meaningful work experience.
In this perspective, which is inspired by the value of impartiality strongly emphasised by Sen, all forms of work are important, simply because all people and all situations of deficiency of capabilities, at work as well as in other contexts, are important.
This premise tends to develop under several lines of reasoning, but which have in common the fact of entailing an expansion of the protective discipline.
One of these lines descends from EU law, whose various definitions of worker tend to go beyond subordination in the strict sense. To give a small and vey peculiar example, in Italy the honorary judges were not considered workers, but a decision of the EU Court of Justice has stated that the fact that these judges are defined as “honorary” by law does not rule out that they are, first and foremost, workers, and as such, holders of rights.
Turning to another aspect, in this perspective, the extension of labour law to the area of self-dependent work is out of question.
But in more general terms, focusing on the person who works leads to a concept of work that goes beyond those activities performed to earn a living. Of course, this kind of work is the norm, but other activities can be defined as work too, provided they fulfil a condition of social recognition.
For instance, voluntary work, which is performed for social solidarity, is undoubtedly work and must be treated as such.
The conditions of social recognition are certainly fulfilled by care work too, which has been conceptualised (by Nicole Busby, “A right to care? Unpaid Work in European Employment Law”) just on the basis of the capability approach.
However, these remarks do not entail any automatic extension of traditional labour law to the other situations of work in a broad sense. Different forms of work require different protections, and therefore different regulatory techniques, which naturally involves the role of the State as well (e.g., as regards an eventual remuneration of care work). The challenge for labour law is very demanding.
The content of this post was presented at the roundtable “Defining Work”, Special Session of the 19th ILERA World Congress, Lund University, Lund, Sweden, 21-24 June 2021, “Making and Breaking Boundaries in Work and Employment Relations”.