Changes in regulatory techniques

• Author: Silviana Sciarra
• Profession: Professor of Labour Law
• Pages: 51-52

Page 51

The evolution of labour law is characterised by a variety of solutions in the choice of regulatory techniques. Even the language adopted by the legislature is particularly rich and inventive.

For example, the notion of semi-mandatory law is inspiring as much as it shows a potentially perfect equilibrium between law and collective bargaining. When the law pre-determines the space for the intervention of voluntary agreements, an effective balance is set in the hierarchy of sources and mutual consideration is given to different - and yet concurring - regulatory techniques.

This section aims at putting forward unique examples selected from national studies and, because of this choice, does not propose to draw comparative conclusions.The selected examples are not presented as 'good' examples in comparative terms, since they very much relate to national legal discourses and to well-rooted traditions. It is, nevertheless, important to add this element of reflection to the evolution of labour law and confirm that the debate at national level is vivacious and inventive even in the choice of regulatory techniques.

The evolution of labour law is characterised by a variety of solutions in the choice of regulatory techniques. Even the language adopted by the legislature is particularly rich and inventive. Let us select some examples.

In Denmark, within a very different national tradition,'semi-mandatory laws' -that is legislation which can be derogated from by collective agreements but not by individual employment contracts - are aimed at saving a traditional and deeply-grounded voluntary approach, while correctly implementing EU directives. In 1996 a nationwide collective agreement was signed, setting the scene for the implementation of EU directives.The Ministry of Labour has to consult the social partners when a new directive needs to be transposed and ask them whether they intend to conclude a collective agreement.The Working Time Directive, however, was not correctly transposed according to the European Commission, due to the fact that collective agreements are not erga omnes enforceable. Semi-mandatory law was then enacted in 2002, covering only workers not covered by collective agreements and leaving the voluntary sources untouched.

Finland presents a variety of possibilities, since legislation can be mandatory or 'semi-mandatory' and in some cases can simply create a framework for collective agreements or confer to them the status of legally binding sources.

As for the Netherlands, mention has already been made of the so-called 'Three-quarters legislation', which vividly exemplifies a way to link together law and collective agreements. Legislation 'in four phases' has also been referred to, discussing agency work. The interesting element of this technique is how to gain in the final phase what may appear as a premium for workers and employers who have been able to comply with rights and obligations in the previous phases. Rather than being constructed as a traditional sanction, the transformation into a permanent contract of employment is the result of a joint and well-constructed plan, which is mutually convenient for both parties.

Page 52

In France, new ways of creating interactions between law and collective agreements are reported. The 2003 Loi Fillon suspends the effect of articles on economic dismissals in the 2002 Act on Modernisation Sociale and opens up new negotiations on restructuring. It also suspends the initiative of the works councils to propose alternative suggestions in case of work restructuring. The 2003 Act opens up the possibility to bargain on how to achieve such restructuring (accords de méthode), leaving untouched the autonomy of the social partners.

The word 'modernisation' also appears in recent reforms enacted in Greece and Italy. The legislature relates this concept - which in itself is not a legally objective criterion, but rather a subjective evaluation of the aims of legislation - to EU targets and to the need to adopt a new style in law-making.

The Italian 2003 Decree states in Article 86.12 that some of the provisions are 'experimental' and will be subject to review by the Ministry after 18 months.This is the case of active employment policies for unemployed and other measures for socially excluded groups, jobs on call for the unemployed aged under 25 or over 45. During these months of experimentation, information will be gathered through various institutions linked to the Ministry and with the help of a committee of experts.

In France the Constitutional Court has accepted that laws can be 'experimental'.

Legislation can also be 'temporary', like the Finnish leave-related legislation, in force until 2007. It deals with cases of training and sabbaticals or career breaks.

This section does not lead to overall comparative conclusions, since it puts forward unique examples, related either to well-established national traditions, or to more contingent choices of the legislatures. The selected examples are not presented as 'good' examples in comparative terms, since they remain part of national legal discourses. It is, nevertheless, important to add this element of reflection to the evolution of labour law and confirm that the debate at national level is vivacious and inventive even in the choice of regulatory techniques.

One concern has to do with the difficulty of setting up national voluntary mechanisms for the transposition of EU law, including EU framework agreements. Regulatory techniques do not seem to be too open to changes, at this regard.The semi-mandatory laws enforced in Nordic countries rely on national social partners well aware of their own tradition and, at times, a little suspicious of too much legal intervention.They also rest on the principle that law can be subsidiary to collective agreements and intervene only when no satisfactory initiative is taken voluntarily.

The possibility to extend erga omnes a collective agreement, as experienced for example in Denmark, while implementing the Part-time Directive, constitutes a good resource and helps in maintaining an equilibrium between national traditions and the obligation to comply with EU law.