|Profession:||Professor of Labour Law|
1. Main features in the evolution of labour law. 2. Challenges and open questions.
1. Main features in the evolution of labour law.
The perspective adopted in this General Report when describing the evolution of labour law is a per spective of change, not of resistance to innovation or strenuous defence of the status quo in national legal systems.
Rather than attempting to include in this all areas of labour law in which legislative reforms have occurred, attention has been concentrated on areas where changes allow us to make a comparative evaluation. Coming to the concluding phase of the Social Policy Agenda in 2005153, the selective choice made in the present report highlights the need for a new programme for the years 2006-2010. In the years taken into consideration in this study - 1992-2003 - policy-making in labour law has been central in the shaping of national economic and social change. It will continue to be so in the coming years, if we consider the commitment made by European institutions to increase the co-ordination of broad economic policies and employment policies.An indication that this is the way ahead is also made in the Draft Constitutional Treaty.
* A comprehensive result to be drawn from the present study is that national legislatures have been very active in the time spell taken into account.
This General Report only covers the most relevant - and, at times, the most controversial - areas of labour law, particularly those in which legislation has been introduced in several Member States.
It can be argued that similar labour law reforms made by national legislatures, notwithstanding different accents on individual and collective guarantees, match closely because of supranational guidelines, first in macro-economic policies and later in employment policies. This argument would prove that labour law has been one of the core issues of coordinated strategies, from Maastricht onwards, and has been key to a closer European integration.
However, this study confirms that, particularly in the implementation of employment policies under the Open Method of Coordination (OMC), the Member States have not been deprived of their own legislative initiative. National governments have continued to follow national priorities following their own internal political agenda.
* The present study also confirms the analysis carried out by the Commission in a first evaluation of employment policies, namely the fact that national performances in implementing the European Guidelines remain very different154.
Diversities in national responses when complying with the Council's guidelines make the comparability of the outcomes a difficult task. Comparative legal research can complement the study of statistical figures, showing whether a variety of legal measures aim at similar goals.
* Responses from Member States to employment guidelines, combined with autonomous choices of national legislatures, let broad areas of labour law emerge as coherent patterns of evolution.
A first evidence of autonomous choices and a sign of evolution are to be found in how fundamental rights have been strengthened in some national legal systems, either due to international sources, or constitutional reforms. Case law may also be an active vehicle of evolution in this field.
* This comparative outcome leads to some reflections. First of all, constitutional traditions remain solid within national legal systems.There is a ben eficial mutual influence between the national and the supranational level of law-making for the expansion of fundamental rights. Furthermore, the most innovative solutions are to be found in legal systems with solid constitutional traditions. In most cases this argument goes as far as saying that constitutional rights, while being adaptable to changes in work organisation, still set a limit to deregulatory approaches in legal reforms, thus favouring creativity.
Even an open process, such as the one on the implementation of the Charter of Fundamental Rights, seems to stimulate a propitious circulation of ideas155.
* Further evidence of evolution is closely associat ed with the implementation of the European Employment Strategy (EES). There is no doubt that the latter has contributed to push forward a number of legal reforms at national level.
There are clearly areas of such reforms in which the aims pursued by national legislatures impose a challenging test on labour law. Comparative analysis, however, indicates that in complying with the EES and in enforcing the Council's employment guidelines, there has not been a drastic departure from consolidated labour law principles.
To verify whether such principles have remained solid, comparative labour law must investigate changes in the balance of powers in individual contracts of employment and /or the shifting role of voluntary and legal sources governing changes.
* There is no indication that, when enforcing employment policies, national laws provided a scenario of uncontrolled deregulation. On the contrary, research carried out in this field shows that, when answers to high unemployment were sought, changes brought about by labour market reforms have, on the whole, been 'selective' and have not completely overturned basic labour law principles156.
To substantiate the idea of 'selective' changes even further, it is important to indicate that the evolution of labour law goes in different directions. In some cases, changes are the consequence of deep innovations in work organisation, at times affecting in a meaningful way the structure of the firm. In other cases, changes follow a pattern of continuity, through subsequent adaptations of existing legislation. In some cases, particularly in the area of labour market reforms, a series of successive legislative interventions have given rise to a fragmented system of rules.
* Areas of labour law which have been deeply influenced by reforms, thus giving rise to changes and opening spaces for innovative solutions, have been explored.
The example of agency work has been explored as an illustration of how the evolution of labour law is torn between granting non-standard workers full entitlements or weaker guarantees. Whereas in some countries agency work is expanding through the enforcement of the equal treatment principle, in other countries lower standards are introduced as a way to further flexibility and increase employment opportunities.
Agency work has been a test case for national legislatures. It forced them to question whether labour law principles were subject to disintegration.The alternative to a disappearance was to let labour law principles move freely through new commercial transactions and adapt them to workers outside the traditional surroundings of a company.
* The concept of 'flexibility' needs to be balanced against that of 'adaptability', in order to find new ways of modulating labour law principles in new working conditions. 'Recalibration' is another concept put forward in comparative research157 which proves to be highly useful in the context of the present study, particularly for its implications for policy-making.
In elaborating on such concepts, the role of EU law is central.The need to further legislate and to do so via hard law has been repeatedly presented as an outcome of the present study.
In making reference to this non-technical terminology, which is, nevertheless widely adopted by lawyers and social scientists, there is awareness of the fact that different meanings are attributed in different national environments158.
* Economically dependent work, a notion falling in between autonomous and subordinate employment, is yet another area of labour law exposed to significant changes.
Workers engaged in this kind of activity express better than others the need to adapt traditional guarantees to unstable and variable employment conditions. Looking at the expansion of non-standard contracts of employment, it has been suggested that aspects of employment law having to do with the 'welfare' of workers - as opposed to those related to 'efficiency' - must be further elaborated159.
This field may become a laboratory of new ideas for future evolution of labour law.The novelty in most current national debates has to do with ways to counterbalance economic dependence. Measures to be fostered should not aim at traditional forms of protection, linked to each employment opportunity; they should broaden the spectrum of economic support mechanisms to all employment opportunities offered to each worker. They should create a network of benefits and facilities, mostly related to the life cycle (access to pension funds, access to special bank credits, social security benefits, mobility allowances, training facilities, pregnancy and parental leave, and childcare facilities)
* Legislative reforms adopted in different countries reveal that the evolution of labour law has taken place in similar areas and been achieved by way of approximation to similar goals, giving rise, at times, to piecemeal interventions, rather than to overall general reforms.
Examples selected to illustrate legislation which should further enhance flexibility are part-time work and fixed-term contracts. The great diversity of solutions adopted by Member States seems to suggest that the principle of non-discrimination does not, by itself, suffice to introduce comparable standards of protection, when fixed-term and part-time workers find themselves in a marginal position in the labour market. The overall impression is that legislation in both fields proceeds by way of progressive adaptations of already existing norms. At times the result is a fragmented system of rules, rather than a well-organised set of principles and procedures.There are also situations in which both contracts of employment are not freely entered into and workers find themselves in situations of uncertainty.
* Major changes observed in recent years in labour law concern the relationship between law and collective agreements.
Not only can the latter derogate from legal provisions. A new equilibrium can be established among collective agreements of different levels, when disadvantageous wages or working conditions - the most controversial example being working time - are provided for at a lower level. Although this is by no means a new issue, it re-emerges in current national debates. It reveals a tension between legal and contractual regulations, which has to do with the very sensitive nature of the rights to be protected.
* A sign of evolution is visible in the attempts made in some countries to expand the coverage of collective agreements, in order to include new categories of workers.
This can be viewed as a very positive and innovative tendency, when collective agreements intend to cover non-standard workers and address issues related to unstable and insecure conditions in the labour market. It is often the case that new organisations representing workers and employers -for example in agency work - are created. In expanding the coverage of collective agreements or in negotiating new agreements, the issue of representative bargaining agents is central.
* The evolution of labour law is characterised by a variety of solutions in the choice of regulatory techniques.
The language adopted by the legislature is particularly rich and inventive. It proves the need to adapt labour law to different functions and to do so by reasonably co-ordinating legal and voluntary sources.
* The impact of EU law on the evolution of labour law has been acknowledged throughout this study.
The influence on national legal culture and on national judges is perceptible and is a sign of evolution in many directions.
There are also instances of disputable impact of EU law, because of side effects on internal labour standards, following a transposition of a directive. Cases have been shown of a 'strategic' or even 'ideological' use of European law, as a justification to internal political disagreement.
* Anti-discrimination law is a field of consolidated tradition in EU law and proves how a slow process of adaptation piloted the introduction -and in other cases the specification -of fundamental constitutional rights.
In this field, as the recent 2000 Directives confirm, there is an ongoing open process of evolution which is proceeding very quickly.
2. Challenges and open questions.
Changes in governments and in political coalitions occurred in all countries included in the present study.Therefore, different 'philosophies' of labour law emerged, showing the likelihood of a very distinct national style of the legislature and, in other cases, a more dogmatic approach, linked to the need to solve contingent problems in the adaptation of existing law.
The concept of modernisation is often used in national laws or adopted by commentators. It is a very unclear concept, adaptable to different political agendas and open to opposite interpretations. It does not necessarily coincide with the widespread 'reformist' approach taken by several national legislatures in the last century. Nor does it signal a total change of perspective in legislation. It appears in some instances almost as a justification of the need to intervene and to do so urgently, often under the pressure of supranational institutions.
Rather than a total departure from labour law principles, the present research reveals that, in some areas of the discipline, there is a risk of reducing the enforceability of certain rights or to exclude certain categories of workers from basic entitlements.The challenge is to resist this tendency and prove that the expansion of fundamental rights at EU level and at national level constitutes the most significant and widespread sign of evolution. For this reason, the point has been made that, in the interaction with other disciplines, autonomy of labour law means to preserve a coherent structure of regulatory principles and to create new ones in areas of employment characterised by instability.
In other cases, when issues of social inclusion are at stake, labour law needs to find a new centrality and to seek closer co-ordination with other measures. From a theoretical point of view, this may represent an expansion of traditional labour law functions.The evolution of labour law, in a close interrelation with social inclusion policies, should be pursued through supportive and auxiliary legal measures, addressed to groups, rather than to individuals. The fear of overburdening employers with protective measures and individual guarantees should, therefore, be overcome.
Comparative analysis carried on in this project suggests that reforms of national labour markets are the most controversial and sometimes reveal strong ideological divides. The danger is to depart from national legislative traditions and to lose track of a coherent system of rules. However, it has not been impossible to gain social consensus even in cases of radical reforms.
During the years included in the present study reforms of a broad scope took place.
An important point to stress is that the evolution of labour law goes in all possible directions. All levels in the hierarchy of sources are affected by changes and all techniques are tested. This confirms a characteristic feature of European labour law, ever since its early appearance on the agenda of national legislatures, dating back to the post-Second World War period.
In several passages of the report the impact of EU law has been put forward as a guiding force behind national evolutionary trends. For some legal systems this meant opening up for the first time to significant innovations. EU law also meant implementing important constitutional principles, especially in the field of anti-discrimination law. This field, unlike other areas of labour law, is characterised by a solid and possibly more durable style of legislation.
These concluding observations indicate that one possible future direction for EU law is to further intervene in new areas of labour law in which fundamental rights of individuals need to be better specified and strengthened.
Positive integration in some areas of labour law should be pursued, in order to establish a steadier equilibrium in the supranational legal system and to bring national labour markets closer together. Fundamental rights represent the conceptual framework in which to construct the new social policy agenda for the years to come.
The addressees of new European social policies should be individuals who are excluded from the labour market, or included but in an insecure and peripheral way. Addressees are also the victims of discrimination substantiating in a subtle and yet penetrating marginalisation towards weak areas of the labour market.
This study proves that future legal interventions should be preceded by a better understanding of social phenomena which have added new terrains to the evolution of labour law.
Labour law has to strengthen its own internal rationale in such areas and suggest suitable new developments to new Member States and to candidate countries.
Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Social Policy Agenda, COM(2000) 379 final, Brussels, 28.6.2000.
Communication from the Commission to the Council, the European Parliament, the ESC and the Committee of the Regions, Taking Stock of Five Years of the European Employment Strategy, COM(2002) 416 final, Brussels 17.7.2002, p. 22 reporting on the results of the impact evaluation studies carried on by the Commission in 2002.
A network of independent experts is monitoring the implementation of the Charter is the task carried on by a network of independent experts. See Report on the situation of fundamental rights in the European Union and its Member States in 2002, vol. 1, Luxembourg 2003, drafted upon request of the European Commission, Unit A5 of DG Justice and Home Affairs.
G. Esping-Andersen and M. Regini (eds.), Why Deregulate Labour Markets?, 2000, OUP, Oxford and in particular the chapter by M. Samek Lodovici, p. 52 ff.
M. Ferrera, A. Hemerijck, and M. Rhodes, The Future of Social Europe : Recasting Work and Welfare in the New Economy, 2000, Celta Editora, Oeiras, first presented at a conference organised by the Portuguese Presidency. Re-calibration is a concept implying that several initiatives need to be considered simultaneously in reforms affecting welfare states. Re-calibration policies address issues of social protection and of re-distribution of social risks among social groups, as well as normative issues, such as equality.
I am grateful to Marie-Ange Moreau for this observation.
P. Davies and M. Freedland, 'Labour Markets, Welfare and the Personal Scope of Employment Law' (1999), 21 Comparative Labour Law and Policy Journal, p. 233 ff. It is interesting to underline that these writers do not adopt the word 'protection', often attributed to the scope of employment law and see that terminology as an effect of Scandinavian law in the 1970s, mainly through the 1975 Employment Protection Act.