LABOUR LAW IN A CONTEXT OF AUSTERITY Guamán, Katsaroumpas, Loffredo, Lorente

Introductory remarks to a common problem Juridifying Commodification of Labour Law?

Introduction  Euro-Mediterranean Labour Law Model: Greece, Portugal and Spain influenced by Italy  Evolution with common trends:  Productive structure  Employers’ behavior and informal economy  Traditional labour law based on stability (among core workers) and protection against dismissal  The systems have been considered “rigid” by the EU Institutions

Introduction  Relation between the evolution of traditional labour law and the European Economic Integration  First wave: Maastricht and privatization  Second wave: Amsterdam and employment policies  Third wave: New Economic governance instruments (European Semester CSR, Memoranda)and anti-democratic interventions

Introduction  Goals: reduction of the remaining components of labour law  Break down the stability principle  Transfer of the economic risk: from employer to employees  Labour law colonised by market rules  Destruction of the continental labour law model  Instruments:  EU Recommendations and financial compromises  Intervention in democratic governments (Memoranda)  National Labour law reforms  Three laboratories for pursuing the same goal

Common premises  Labour law and labour rights have been considered the main causes of job loss  Labour relations model is accused of “rigidity” and “flexibilisation” is proposed as solution  Was labour law so rigid?  Several labour reforms have been adopted following the country-specific recommendations adopted by the Commission and the Council of EU

Austerity and Greece First laboratory

The Paradigmatic ‘‘Path Departure’’ of Greek Labour Law during the economic crisis A. Individual Labour Law Reforms: De-Mutualising Risk towards the Employee  Increasing ‘’External Flexibility’’ (Trial Period for Open- ended Contracts raised from 2 to 12 months, Substantial Reduction of severance pay and notice periods for dismissals, Increase of Collective Redundancy Thresholds, Labour Reserve ‘‘Concealed Dismissal’’ Process for Public Sector Workers)  Increasing ‘‘Internal Flexibility’’ (Maximum duration of ‘’rotating work’’ lengthened from six to nine months per Year, Extension of Working Time for Public Sector Workers from 37.5 to 40 hours per week)

The Paradigmatic ‘‘Path Departure’’ of Greek Labour Law during the economic crisis  Promoting the Use of Non-Standard Forms of Employment (Maximum Duration of temporary Agency Work raised from 1 to 3 years, Maximum Duration of Successive Fixed-Term Contracts raised from 2 to 3 years)  New Sub-Minimum Contractual Arrangements for Young Workers

The Paradigmatic ‘‘Path Departure’’ of Greek Labour Law during the economic crisis B. Collective Labour Law Reforms: Reducing Workers’ Collective Anti-Power  Disorganised Decentralisation (Suspension of ‘’favourability’’ between enterprise and sectoral agreements, removal of the numerical requirement for the conclusion of enterprise agreements, elimination of the extension mechanisms for sectoral agreements, granting of collective bargaining powers to the atypical non-union entity ‘associations of persons’  Reduction of After-Effect from Six to Three Months

The Paradigmatic ‘‘Path Departure’’ of Greek Labour Law during the economic crisis  Multiple Interventions in Collective Autonomy by Modifying the Effects of Existing Collective Agreements and Arbitration Awards  Replacement of a Collectively-Determined Minimum Wage with a State-Determined Minimum Wage  Decapacitation of Arbitration as Ultimum Remedium for a Non-Market Determination of Terms and Conditions of Employment (from unilateral to consensual recourse, confinement of the scope of arbitration awards to the basic wage and not as previously to all aspects of a collective dispute)

Partial Conclusion  Juridifying ‘‘Hyper-Commodification’’: Demutualising Risk towards the Employee and Attacking Workers’ Collective Anti-Power as the Dominant Crisis Trends. The Neutralisation of the Pre-Crisis Pro-Worker Identity of Greek Labour Law (normative weakening)  The New Greek Government and Labour Law: Is the Darkest Hour for Greek Labour Law just before the dawn?

Spain, crisis and austerity: denaturalising labour law Second laboratory

Labour law reforms during the crisis: ( ): the permanent reform 1. Individual Labour Law Reforms: De-Mutualising Risk towards the Employee: A. Changing the nature of the “open ended contract”: from stability to hyper-flexibility and incertitude Creation of a new type of contract, the “contract supporting entrepreneurs” with a one-year trial period and tax and social security discounts Internal “flexibility”: mechanisms modify labour conditions inside the enterprise Deeply modification of the dismissal procedure and reduction of its cost regarding unfair dismissal severance pay and redundancy payment. Less control possibilities for administrative and judicial authorities

Labour law reforms during the crisis: ( ): the permanent reform b. Changing the nature of the “training contracts”: from training to low cost labour force Reform of training contracts: less security to ensure formation and participation of Temporary Agencies c. Changing the nature of “part time work”: involuntary & the perfect way for labour fraud Part-time contracts promotion by deregulation of extra-hours and a new part-time contract linked to training d. The end of the causality principle in temporary contracts: temporarity as a way to employment creation New temporary contracts for young people (first young employment contract )

Labour law reforms during the crisis: Phase II ( ): the permanent reform B. Collective Labour Law Reforms: Reducing Workers’ Collective Anti-Power  Widening the opportunities for the employer to modify a sectoral collective agreements at the level of the undertaking (opting out)  Granting to the enterprise collective agreement a priority over the sectorial agreement  Limiting the temporal validity of collective agreements

Partial conclusions  Weaknesses of the Welfare State model in Spain  Model of previous growth based in serious unbalances:  Oversize of certain sectors (construction)  Underdevelopment of others (industry)  Abuse and lack of control of temporary contracts  based on jobs with low added value and import of workers  In Spain the destruction of SME trends has been easier: was the Spanish labour law that rigid?  Spain has been an ideal scenario to experiment

From polarisation to precarisation of Italian labour market in times of austerity Third laboratory

The “never ending reform” of Labour Law  A model based on the stability principle  The “Biagi Reform” (L.D. 276/2003) and the flex(in)security policies  Effects: the polarisation of labour market  The “Fornero Reform” (Act 92/2012) and the “Jobs act” ( ): the austerity policies  A new standard: a generalised precarity for Italian workforce

The flex(in)security reforms  a) the fragmentation of the enterprises after the outsourcing reforms  b) the regulation of some contractual typologies in a more precarious way, acceptable almost exclusively by workers having a low bargaining power, or to some social clusters or categories towards which they are traditionally directed  c) the increase of “subjective causes” to conclude some contractual typologies characterised by less legal and wage protections, mostly used by enterprises operating in labour intensive sectors  d) the use of training in the employment contract mostly in an occupational key has resulted in the debasement of the professional incidence inside the apprenticeship  The paradigm: organisational needs have prevailed over the protection of workers

The austerity reforms ( ??)  The fixed term contract ( )  The complete liberalisation for temporary agency work.  The unfair dismissal reform  Art. 18 Statuto dei lavoratori  The attempts to reform the “real stability”  The EU direct intervention  The first reform of 2012  The complete abrogation of 2015

Trade unions in a polarised/precarised market  Decline in terms representativeness for trade unions  The peculiar (extra)legal framework of Italian industrial relations  The breakdown of trade unions’ unity  The Fiat conflict as a new paradigm in industrial relations  The attack against the right of strike

Partial Conclusions  The need for a legislative intervention developing Art. 39 of the Constitution  Outsourcing: the principle of the economic dependence between enterprises  The abuse of “subjective causes” as a form of indirect discrimination  The apprenticeship: the enhancement of training, as a sign of change in employment policies towards quality employment and not low-cost workforce  Job insecurity is life insecurity for young people  A new paradigm: the labour market law

Three ways for arriving to a similar goal? General Conclussions

Old and new standard  Characteristics of traditional employment model: dependent work, full time and open ended contracts  Characteristics of the new standard  rise and generalisation of temporary contracts and part-time work,  de-regulation of open ended contracts  New types of atypical contracts  destruction of permanent jobs (which would not be recovered),  stabilisation of unemployment rate  modification of the collective bargaining structure and reduction of the collective agreement’s coverage,  reduction of trade union power, social legitimation and institutional weight

Global trend and south-Europe new model?  ILO 2015 (World Employment Social Outlook, The Changing nature of Jobs): The traditional employment model is changing in developed countries. In advanced economies, the standard employment model is less and less dominant.

A new common paradigm: the labour market law??