'A Purposive Approach to Labour Law' di Guy Davidov
Vincenzo Ferrante, Prof. ordinario di diritto del lavoro nell’Università Cattolica di Milano
Prendendo le mosse dal volume di Guy Davidov, “A Purposive Approach to Labour Law”, l’Autore analizza brevemente la natura del rapporto di lavoro, discutendo se si tratta di un contratto o se lo squilibrio di fatto tra le due parti allontana la relazione dai modelli sinallagmatici. Secondo l'A., grazie alla legge, chiamata a controbilanciare il potere del datore di lavoro, termini e condizioni dello scambio fra le parti sono resi più prevedibili, come in ogni altro contratto. Il saggio esamina anche la globalizzazione e gli accordi commerciali di libero scambio. Questi non sono considerati un fallimento, perché in questo modo una parte più ampia dell'umanità ha più possibilità di una vita dignitosa. In questo senso non appare casuale l’incrementata attenzione agli standard internazionali, che anzi rivela un chiara tendenza (non limitata all’Europa) alla decostruzione della disciplina del XX secolo, tornando così alle origini del diritto del lavoro.
Analyzing Guy Davidov’s “Purposive Approch to Labour Law”, the Author focuses on the nature of employment relationship, discussing if it is a contractual one or if the de facto imbalance between the two parts pushes it far away from an exchange agreement. According to the A., by means of the law, which has the specific duty to counterbalance the power of the employer, terms and conditions of the exchange are made more predictable, like in every other contract. Globalization and Free Trade Agreements are analysed too. They have not be considered as a failure, because in this way a larger part of the humanity have more chance to a decent life and it is not coincidence that reference to international labour standards has increased, revealing a clear (and not only European) trend to the deconstruction of XXthcentury discipline, coming back to the origins of the labour regulation.
Keywords: labour contract – managerial prerogatives – globalization
Today we are called to reflect on the state of labour law across the jurisdictions and to share with other Italian colleagues the commitment and the special sensibility that many lawyers have for this field. The starting point from which I will move for my intervention is the last book of Prof. Guy Davidov , whose passionate defence of labour law, coming from such a distant system, gives me confidence that there is still room for economic and social justice for everybody. A lot of what I will say this afternoon will be from the perspective of the continental lawyer, whose experience is characterized by the Constitution, containing, as written on a stone, a list of social rights. This is particularly true for the Italian Constitution, rich of different specific rights in this field (to organize collectively, to have a decent salary, daily rests, paid annual leave, equal treatment for men and women and also the right to form a union and to bargain collectively; as well as the right to pension and to have social assistance in case of unemployment or illness). And this is also true for many other European countries, like France, Spain, Portugal, and also Germany, whose Sozialstaatsprinzip, embedded in article 28 of the GG, have allowed the Constitutional Court of Karlsruhe to promote a very large development of workers’ rights. Of course, my point of view is strongly influenced also by the jurisprudence of the international Courts (mainly: the European Court of Justice of Luxembourg and the European Court of Human Rights in Strasbourg) and also, to a lesser extent, by the Freedom of association Committee of ILO. In recent years, the dialogue between these courts and the national constitutional courts has been extraordinarily intense and the ideas related to rising liberalism, to the crisis of the welfare state and to the limits that could be imposed on workers' rights because of budgetary constraints have circulated with great intensity among scholars from different countries. The digest of decisions and principles of the two main European Courts has been scrutinized and studied from someone, firstly in the hope that this was the pathway to a better future and, afterwards, with a certain disappointment, due to the need that the ideas that the workers’ rights have to be reviewed when they were put vis a vis with the principle of freedom of movement of goods, services and establishment in the EU.
Prof. Davidov’s purposive approach to labour law suggests that we have to investigate the rationale of labour law to understand its norms and its precepts, because of the variability of some categories (first of all: employee) and the uncertainty which affected most of his formulas (like, the fairness of dismissal). Prof. Davidov suggests that there are two main elements that distinguish the employee from the independent contractor: subordination and dependency. I am sure I will not be the first at this table to stress that, according to the Italian civil code, in order to have access to fundamental social rights, the employee has to be both subordinated and dependent from the employer. Not to mention the endless discussion about the precise meaning of these words, this definition belongs not only to Italy but also to many other European countries (i. e. the UK or Germany).
Prof. Davidov refuses the idea that it could be useful to give rational foundation to our laws to classify this relationship as a sample of an exchange contract. I quote from page 54: «The employer agrees to pay a sum known in advance; the employee has no power to change the wage later as she sees fit. The employee, on the other hand, agrees to an open-ended clause, giving the employer the right to issue commands which will change from time to time – as he sees fit. This part in unequal». This consideration, first of all, could apply to many relationships that are contractually regulated: in the case of consumption contracts, the provider has the power to modify the clauses simply communicating them to the other party, who, remaining silent, accepts them. It is also true that the consumer can show his dissent by terminating the contract and looking for another operator, but also the worker is allowed to resign in case of a substantial change in working conditions (f.i. in case of transfers of undertakings, according to art. 4, par. 2 of European Directive 2001/23/EC). My point of view is quite different. I do not deny that, in absence of Parliament’s intervention by statutory law, general principles of civil (or common) law are not able to regulate equally the relationship, in a similar way to an exchange contract. At the same time I do not deny that a purposive approach is indispensable when it comes to interpreting general clauses (see ch.s n. 5 and 8), or when one is called to evaluate the ability of a system to ensure effective compliance and enforcement (see ch. n. 9). Nevertheless, I think that the law has this specific duty: to counterbalance the power of the employer, making more predictable terms and conditions of the exchange. The Italian legislation of the '70s has tended to regulate managerial prerogatives, by indicating when a particular decision or order can be freely taken by the employer. In a certain way, the idea is to take as a model the rules of rational action of public administrations. According to Italian legislation, no change can be made in tasks attributed to employee if not on an equivalent basis; the workplace has to be changed only in case of proven technical or production reasons; the personal life cannot be investigated be employer or used by him to give a justification to dismissal or any discrimination; workers cannot be controlled by videos or by electronic means. In every case of [continua ..]
These, I’ve explained, are in brief my very personal reflections on colleague’s purposive approach to labour law. Nevertheless, today’s conference also questions us about the future of labour law. Very briefly, my answer is as follows. At an overall assessment, I can say that in recent years European democracies seem to have found their social fragility, discovering how constitutional provisions are unsuitable for providing a shelter against the changes in social policies, resulting from the new approach to the issue of a balanced budget. This has been the same, for many aspects, on the opposite side of the Atlantic. The reference to international standards has revealed a clear (and not only European) trend to the deconstruction of the most ancient discipline, so as to show, at the end of this process, international standards in the role of the worker’s human rights: it is a phenomenon, knowledge of which should make Europeans more aware of the international trend to deregulation and, perhaps, less hostile to the processes of economic globalization and the spread of treaties on free trade. This mainstreaming idea is in-depth analysed by Prof. Davidov in his research. For these reasons, it is not surprising the resurfacing of the ILO’s standards. It can be easily shared by every labour lawyer: as a matter of fact, it seems that all European jurists have forgotten how great the debt is of the “Continental” social model to the overseas New Deal legislation, implemented mainly through the Wagner Act and what the origin of the international standard is (even Italians seem to have forgotten the US roots of a good part of their promotional laws and particularly of the “workers statute” which as well has been elaborated in the shadow of procedural US provisions, following the injunction model of the Wagner Act). Recent history shows a divergence that is not retraceable to its origins: on one side, as I have already said, the development of the Luxembourg Court of Justice’s case law has stressed the importance of free competition principles giving them a role that is inconsistent with a federal model, bearing in mind that in Europe there is no central authority that can address expenditure policy, balancing regional differences and developing a stimulus through public works of common interest. On the other side, the advent of liberalism “Reaganomics” in the early ‘80s has erased [continua ..]