Professore ordinario di Diritto del lavoro, Università Ca’ Foscari Venezia
In my speech I would like to address the question “what is work”, from the specific point of view of labour law, according to which work is only subordinate. This is the result of an “industrial” perspective related to work (and to labour law), which has a much shorter history than that of work and labour law. Labour law today should conceive work in a broader perspective, overcoming the distinction between “working for others” and “working on one’s own”, because productive work – which is the true modern conception of work as opposed to the non productive one, is both subordinate and self-employed work. In the current conditions, labour law must protect work as a productive activity, regardless of its legal forms and classification.
What is the idea of work that labour law considers as having the right to legal protection? The answer is work conceived as subordinate work.
We would like to put forward a different vision. Without denying that labour law has its traditional basis in subordination, we think that labour law is a much broader and more complex field, which must also include all personal work and self-employment, in its various forms and articulations. In short, labour law must be a law related to work in general. It is therefore necessary to overcome the binary system in which all social guarantees are in the field of subordination and no social protection is in that of self-employment.
I will use four arguments to support the thesis: a sociological argument, a historical argument, an economic argument, a comparative argument. They converge in the belief that labour law is currently, and should be in the future, the law of work in general and not only that of subordinate employment.
The sociological analysis of work has now gone beyond the vision of industrial work, of subordinate work, as an expression of the need for social protection. The sociology of work considers work as a productive activity rendered in favour of others, whether it is subordinate or self-employed, cause in both cases it is subject to the domination of others. In both cases, in fact, the capitalist system has subjected the worker to the productive process. This had already been clarified by Kojeve when, in his reinterpretation of the relationship between Master and slave, he explained that the bourgeois believes he works for himself, that is, without a master; however, as a matter of fact, like the slave, he works for Capital. Hanna Arendt also comes to the same conclusions when she explained in the human condition that the modern distinction of work is not between intellectual and manual labour, between dependent and self-employed work, but between productive and non-productive labour. The work that needs protection is productive work, the work of animal laborans, because domination emerges in the sphere of production.
The sociological analysis on the new generation self-employment represents a picture of a regulatory deficit of social protection for weak, economically dependent self-employed workers with low and intermittent incomes, without social safety nets (the Covid pandemic has highlighted this lack of social protection). Such workers often lack adequate collective representation, and they are far from fully realizing their personality with strong social ties. They are unable to satisfy their need for “recognition”, a vital source for their identity and their existence.
Concerning history, we are led to believe that labour law was first conceived with subordination, that is, with the creation of the employment contract. In reality, social legislation came before the employment contract and does not only concern those relationships that today would be considered subordinate, but also self-employment relationships.
In the continental tradition the service performed for others has for centuries found its place in the context of the unitary concept of “locatio et conductio”. In the proto-capitalist Anglo-Saxon world, work was managed by that kind of “labour code” represented by the Statute of Artificiers and from the Poor Law system. These laws were independent from contractual “types” and referred both to farmers and to artisans due to the universal obligation to work by all those who were able to work.
The Italian scholar Ludovico Barassi in his pioneering volume on the employment contract of 1901 states that labour law “has a remarkable unusual breadth, since it generally includes all practical forms of paid work. It is not limited only to the industrial work of workers, to which the designation of “employment contract” mostly refers. However, it embraces, in addition to all other cases of service performance, also the locatio operis in all its forms and other intermediate relationships, such as the mandate or the commercial commission”.
In Germany, Philipp Lotmar’s reconstructs the autonomous category of the employment contract, as a form of development of a modern labour law, based on the principle of the personality of work, attributing the same dignity to all contracts including a work performance.
Although labour lawyers will tend to enormously expand the distance between subordinate workers and other workers, the underlying persistence of a link between the various forms of work performed for others will go along with the evolution of social relations. For this reason, we need to be aware of the need to expand the protection and subjective capabilities of people regardless of legal categories, in order to rebalance situations of “social vulnerability” and “democratic deficit” in the context of contractual employment relationships.
Let’s get now to the economic argument. The “great dichotomy” between subordinate and self-employed work has found important confirmations on the part of the neo-institutional economic analysis. In particular, according to the theory of transaction costs, the raison d’etre of the employment contract is referred mainly to the reduction of transaction costs.
These acquisitions of economic theory have undergone revisions and corrections on the part of many scholars on business theory. Contractual forms indicate different level of autonomy maintained by the parties, polarized between a maximum (discrete transactions), a minimum (hierarchical transactions) and an intermediate level (hybrid transactions). Therefore, relational contracts do not necessarily correspond to relationships of subordinate nature, and long term transactions tend to be structured in quasi-hierarchical mechanisms.
The boundaries between market and hierarchy become mobile, according to the criterion of relative efficiency. Hybrid forms of quasi-market and quasi-hierarchy are being used, offering the company a synthesis between the benefits (and costs) of opens markets transactions and internal ownership.
Thus, we have mixed forms of negotiation. What Williamson calls the overcoming of the “bimodal law of transactions” in favour of a wider “normal distribution”, relative to the intermediate range, corresponds for labour law to the overcoming of the standardized polarization between self-employment and subordinate work.
The main result of the comparative analysis confirms not only the historical relativity of the “great dichotomy” between subordinate and self-employed work in the major European legal systems, but also the substantially artificial nature of the model.
In France, the choice of the criterion of lien de subordination juridique to the detriment of the doctrinal thesis on “economic dependence” has not prevented the proliferation of extensive regulatory regimes. In this way, some genuinely self-employed workers are able to obtain protections deriving from the Code du Travail.
Even though to a lesser extent, even in Germany the category of employees has been receiving a series of selective protections for some time, especially in terms of collective rights. If the work or service is performed by a self-employed worker who is in a condition of economic dependence (i.e. deriving at least half of its total income from a single client), the laws governing procedural protection, social security, holidays, harassment in the workplace and collective bargaining are to be applied.
Also in the United Kingdom, the “great dichotomy” was overcome with the introduction of the notion of worker, performing “personally any work or service for another party to the contract”. Some basic protections are applied to such workers, provided by the 1996 Employment Rights Act and the 2010 Equality Act, confirming the typically “cumulative” character assumed by the evolution of labour law over its long path.
English legislation has inspired other common law systems even if they do not include intermediate categories such as that of workers.
In Australia, the 2006 Independent Contractor Act allows Courts to assess the fairness of the remuneration of self-employed workers, in order to establish if the contract provides for a lower remuneration than that paid to an employee performing a similar task (Section 15). A Fair Work’s section is related to “adverse actions” suffered by self-employed workers, and its object concerns above all the prohibitions of discrimination in the workplace in matters like ending of the relationship, and terms and conditions of the contract.
Legislation in States such as Victoria are even more explicit in extending the prohibition of discrimination to self-employed workers with regard to promotions, relocation, training and other benefits, dismissal and any other matter that may affect the relationship of subordinate work. On this basis, the most recent Australian doctrine proposes to further extend the scope of the protection principles to all work relationships.
By consolidating a trend towards the extension of social rights, also Italian labour law has moved towards the use of “assimilation” techniques to the point of widening the entire application spectrum of the employment relationship discipline. In this perspective, the concept of “hetero-organization” of work was put forward with the intention of extending the discipline of subordinate work to cases within the gray area between subordination and autonomy.
To conclude, I have used four arguments showing, from different points of view, how labour law can be, and must be, the law of work in general.
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”.