Memorandum by Professor Silvana Sciarra
1. MODERNISATION
OR EVOLUTION?
STYLE AND
LANGUAGE IN
THE GREEN
PAPER
The Green Paper (GP) "Modernising Labour
Law to Meet the Challenges of the 21st Century" intends
to open up a debate among governments of the Member states and
all stakeholders. The open consultation launched by the Commission
on internet should be looked at as a positive sign. Attention
is paid to controversial issues which are on the agenda of national
legislatures and of the social partners. The consultation is addressed
to a "virtual" community and is in itself a way of raising
awareness even among non institutional actors. Furthermore, the
GP confirms in several passages the need to enhance synergies
with the European Council's "Integrated guidelines 2005-08",
thus showing consideration for this "new" regime in
employment policies.
Because of all these intended goals, the style
adopted in the GP is at times heterogeneous and the language not
too technical. "Modernisation" of labour law may be
deemed as an ambivalent notion. How is a legal system defined
more modern than another one? More modern compared to what standards?
Comparative research on "The evolution
of labour law(1992-2003)" (vol.1, General Report Luxembourg
OOPEC 2005), coordinated by the present writer, under the auspices
of the Commission, within a group of independent scholars (this
study is quoted in a few footnotes of the GP), reveals that changes
and adaptations have been and still are a constant feature of
national labour law. Hence, the notion of "evolution",
better than "modernisation", shows that national legislatures
have been active in pursuing "adaptability" and in furthering
their own models of "flexicurity".
Differences in national legislative styles emerged
in the enforcement of Title VIII TEC on employment policies. Diversity
is an inborn feature of European labour law, as well as a demonstration
that respect for national legislative traditions has been concretely
achieved at a supranational level. The soft law regime in which
the so called Open Method of coordination (OMC) first flourished,
fostered such differentiation. Activism of national legislatures
was counterbalanced by difficulties in adopting Directives. Hence,
a less significant role was assigned to harmonisation, a regulatory
technique from which the completion of the internal market largely
benefited in previous years.
In the jargon of the European employment strategy
(EES)—not completely lost in the current regime of integrated
guidelines issued by the Council—best practices in national
performances were subject to comparative evaluation, based mainly
on statistical "indicators". It is submitted that legal
indicators, emerging from comparative legal research, are indispensable
tools for interpreting economic performances and facilitating
changes. The debate on the GP offers an opportunity to add to
existing research on the evolution of labour law.
It is worth noticing that the EES agenda is
geared in several directions. For example, "flexicurity"
is pursued as a response to globalisation and company restructuring.
The Commission discusses in its web site, but not in the GP, such
a "policy approach" (http://ec.europa.eu/employment_social/employment_strategy/flex_meaning_en.htm).
Future discussions and comparative analysis should encourage
a combined and thorough investigation of all Commission's approaches,
both in hard and soft law regimes.
2. CONTENTS AND
SOURCES OF
A "MODERN"
LABOUR LAW
While developing the narrative on "modernisation"
of labour law, the Commission is active on other fronts. In October
2006 consultation with the social partners was started (art. 138
TEC) for further action on work-life balance. Monitoring on the
enforcement at national level of the 2002 Framework Agreement
on telework is under way. These examples show that at least two
significant areas of "modern" labour law are on the
Commission's agenda, although not specifically addressed in the
GP. In its Proposal to the Council on employment policies, the
Commission underlines that, notwithstanding higher employment
rates, weaker segments of the labour market, in particular young
and aging job seekers as well as women, still lack the necessary
support (COM (2006) 815 final).
Against this complex and highly diversified
background, it must be clarified that the method followed by the
Commission in choosing areas of labour law to be included in the
GP is selective. A selective option counts for the fact that collective
labour law is only briefly and occasionally referred to.
However, original achievements in labour law—particularly
in the continental European tradition—are found in a combination
of law and collective bargaining. Furthermore, in several Member
states the evolution of collective bargaining brought about significant
innovations and confirmed the central role of collective actors
in pursuing changes and adaptations. The GP only briefly acknowledges
this in sec. 2.b, mentioning that collective agreements "no
longer play a merely auxiliary role in complementing working conditions
already defined by law", but also serve the purpose of "adjusting
legal principles to specific economic situations".
For example, an element of efficient interdependence
among legal and voluntary sources must be found in the area of
company restructuring, an area in which some European Directives—transfers
of undertaking, collective dismissals, EWC—play a most significant
role. The Commission does not specifically address in the GP ways
in which collective agreements are best suited to deal with the
effects of restructuring, in view of maximising the recourse to
the newly established European Globalisation Adjustment Fund.
This is yet another area of "modern" labour law to investigate
in comparative terms and to frame within trans-national restructuring.
3. THE NOTION
OF "FLEXICURITY"
When de-contextualised from specific patterns
of regulations, the discussion on "flexicurity" may
include the most diverse contents. It is submitted that, to avoid
broad generalisations, this new and composite concept should be
anchored to specific legal indicators. This approach has been
followed in a comparative project on "The evolving structure
of collective bargaining" (http://www.unifi.it/polo-unversitario-europeo/ricerche/collective_bargaining.html),
coordinated by the present writer in collaboration with experts
from all Member states of the EU, under the auspices of the Commission.
For example, the tradition of "semi-mandatory
law" both in some Nordic countries and in The Netherlands,
can be recalled as a successful way to pursue changes, combining
law and collective agreements. Examples of legislation preceded
by the successful enforcement of inter-sector agreements can also
be quoted. In France it is worth noting the 2003 central agreement
on lifelong access to vocational training, followed by a statute
in 2004. In Ireland a centralized agreement on maternity and parental
leave paved the way to legislation. In Spain a recent reform of
the labour market dealing with fixed-term work and other employment
measures, was preceded by central collective agreements.
In order to be framed within efficient patterns
of policy-making, the notion of "flexicurity" must rely
on comparative criteria. Such criteria—both within national
legal systems and among Member states—can best emerge from
the ongoing practice of reliable labour market institutions.
The GP does not fully analyse the contribution
that consensus-building institutions—be they collective
bargaining, consultative bipartite or tripartite bodies—have
had in empowering the notion of "flexicurity" within
national debates.
Furthermore, part of a well established tradition
of "flexicurity" in the Member states of the EU is the
combination of passive and active labour market policies. It is
surprising that the specific area of employment services should
not be fully addressed in the GP, despite the fact that the Council's
Integrated guidelines 2005-08 (guideline n.20) take this on board.
It may be worth mentioning that issues of active
labour market policies, lifelong learning and training are part
of the previously mentioned flexicurity program, pursued by the
Commission within the EES.
A most profitable approach, in response to the
many questions posed in the GP, should consist in verifying all
current examples of existing flexicurity measures, both in a diachronic
and synchronic perspective. Whereas the diachronic perspective
can prove that flexicurity is nothing but a more sophisticated
expression of well established traditions in European labour law,
the synchronic perspective may show areas of convergence among
current legislative reforms.
It can be argued that early versions of combined
"flexibility" and "security" are those enshrined
in European social policies aimed at avoiding distortions in competition,
while safeguarding certain labour standards. A mixture of the
same two ingredients can also be found in the Framework agreements
on part-time and fixed term work. The symbolic relevance of these
two words is stronger than the one attached to a difficult neologism
such as "flexicurity". This indication, rather than
being dismissed as a truism, should be seen as a way forward to
avoid juxtapositions in national and supranational debates.
4. THE "SCOPE"
OF LABOUR
LAW
In the light of comparative research
carried on so far, it is well understood that the evolution of
labour law, rather than concentrating on an overall definition
of worker, should favour institutions capable of bringing about
consensus on core labour standards to be applied in non-standard
employment contracts and in cases of workers mobility across Member
states.
The GP refers to Wolff & Müller,
a 2004 ECJ decision dealing with the free provision of services
and the posting of workers. It is correctly recalled that measures
on minimum wage, a national public interest objective, must be
pursued via efficient procedural arrangements, also for workers
temporarily posted in host Member states. The principle of joint
liability is recalled as an efficient legal device, aimed at bringing
about clarity and fostering compliance of labour standards. This
principle is appropriate for multilateral contractual relationships—be
they agency work or subcontracting—and well represents existing
legal traditions in several Member states. This principle, to
be described as a legal indicator, brings about clarity and certainty
in contractual relationships.
One of the issues at stake, when attempting
an analysis of the scope of labour law, has to do with identifying
core labour standards to be applied in multilateral contractual
relationships.
It is submitted that this target can be efficiently
accomplished by means of voluntary sources. Collective agreements
are suitable for setting labour standards applicable to agency
workers, both in their relationship with the agency and in executing
work for the user company. Dutch legislation on agency work, accompanied
by collective bargaining, is the most often quoted paradigm of
"flexicurity". Equally relevant are the solutions adopted
in Sweden, where collective agreements aim at reducing differences
among temporary and permanent workers in rates of pay and working
hours. In Finland, if no sector agreement covers agency workers,
the user company's minimum wages apply. In Austria collective
agreements deal, among other issues, with allowances due to agency
workers for hours of non work.
When discussing cross-country trilateral relationships,
attention should be paid to new ways of enhancing trans-national
standards, freely agreed upon by trans-national social actors
and developed in parallel to existing Directives.
Throughout the GP a false dichotomy is presented
between labour law reforms—improve flexibility and security,
reduce labour market segmentation—and techniques to achieve
the goals enshrined in such reforms—law, collective agreements—.
It is submitted, on the contrary, that the evolution of labour
law brings about a remarkable arrangement of means and goals,
whenever it aims at combining the protection of core labour standards
with market efficiency.
In examining the scope of labour law the GP
introduces the concept of economically dependent work. This choice
must be positively underlined, even though an analytical interpretation
of such a widespread—and yet still undefined—phenomenon
is missing. However, the GP announces the intention to "promote
a debate about whether a more responsive regulatory framework
is required to support the capacity of workers to anticipate and
manage change regardless of whether they are engaged on indefinite
contracts or non-standard temporary contracts" (p 7).
The scope of labour law in all such cases is
twofold. First of all it is of utmost importance to develop legal
indicators—such as legal presumptions or criteria in financial
and tax law—aimed at identifying a contractual relationship,
different from self-employment. Furthermore, the scope of labour
law is to regulate transitions among jobs and to promote adaptability
to labour market demands, identifying new entitlements to social
security and social policies tailored on the notion of economic
dependence. Economic dependency can be efficiently counterbalanced
by supportive measures such as accession to special pension funds,
bank credits, mobility allowances, training facilities, pregnancy
and parental leave.
5. COMPLIANCE
MECHANISMS AND
THE CASE
LAW OF
THE ECJ
Some national labour market reforms, initiated
in the framework of EES, have given rise to interesting, albeit
controversial, case law. Cases dealing with the right balance
between flexibility and security—in the regulation of working
time, in enforcing the rights of fixed-term workers—have
been referred to the ECJ. This may in some cases represent a valuable
indication of ways in which "flexicurity", while pursuing
significant innovation in national labour law, may cause too drastic
changes within national legal systems and give rise to a divisive
interpretation of "flexicurity".
It is most surprising that the GP should be
silent on these issues. Case law of the ECJ constitutes a ground
on which to test legislative reforms and adaptations of existing
legislation. Thus, a debate on how to "modernise" labour
law cannot ignore this crucial part of law-making and its impact
on national legal systems.
Compliance mechanisms are, furthermore, a relevant
part of national labour law. Labour inspectors are among the most
complex institutions to analyse in comparative terms. The same
can be said for out of court conciliation, as well as for various
other models of transactions on individual and collective rights.
Against this diversified scenario of national
practices, compliance mechanisms should not be left out of the
debate opened by the GP. In particular the question should be
posed on whether non-standard and economically dependent workers
are given sufficient information with regard to their entitlements.
The Directive 1991/533 on the obligation to inform and consult
individual employees could be a source of inspiration.
It is worth mentioning, in drawing some conclusions,
that notions of "protection" and "compliance"
are frequently developed in ILO sources and documents. References
are made in the GP to the ILO Employment Relationship Recommendation
198. The Commission adhesively refers in its 2006 Communication
(COM (2006) 249 final) to the ILO Decent Work Agenda. In the current
debate on "modernising" labour law ways forward are
to be found in a constant exchange of ideas with the ILO, looking
at its well grounded methodology to foster social dialogue and
to establish respect for core labour standards.
30 March 2007
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