External disintegration and the scope of labour law protection

• Autore: Manfred Weiss
• Pagine: 1337-1347

Manfred Weiss

External disintegration and the scope of labour law protection

S: I. Introduction. - II. External Disintegration: Employment vs. Self-Employment. - 1. Updating

the Traditional Def‌inition of Employment? - 2. Exchanging the Decisive Criterion? - 3. Including

Self-Employment into Protective Schemes? - 4. e Attempt to Draft a Code on the Employment

Contract. - III. Conclusion.

I. Traditional labour law – which in this paper in honour of Edoardo Ghera is un-

derstood in a comprehensive way, including individual as well as collective labour law

– has been developed in response to the Fordist model: easily identif‌iable units of manu-

facturing industry, a homogeneous workforce employed full time for an indef‌inite pe-

riod and interacting with each other in a unit of manufacturing industry, clear-cut hier-

archies and a well structured division of labour between the workers. is model has

been eroded to a great extent. Manufacturing has lost its dominating role, the still in-

creasing service sector has become more and more important. e employer quite often

is no longer an easily identif‌iable entity. Manufacturing as well as services are embedded

in complicated networks, resulting from outsourcing, joint ventures etc. e originally

rather homogeneous workforce has become segmented and fragmented. Employment

relationships are transformed into independent contractual relationships (external disin-

tegration). And among those who remain in an employment relationship context new

forms of employment (f‌ixed term workers, part-time workers, temporary workers, tele-

workers etc.) play an ever increasing role (internal disintegration). Without of‌fering

further examples it is evident that the post-Fordist reality is a totally dif‌ferent one com-

pared to the one for which traditional labour law was constructed. is new reality has

been described quite often, most brilliantly in a recent essay by Davies and Freedland to

which I simply refer. I fully share their diagnosis. And I agree that we are confronted

with «a combination of the semi-detached worker with the amorphous employer in the

demutualised employment relationship»1.

In this paper I will not try to reconstruct this far-reaching diagnosis. I simply take

it for granted. Instead I rather would like to modestly contribute some ref‌lections on

how dif‌f‌icult it is for the law to react to the problem of external disintegration. But it

should be clear from the very beginning that even if the challenges of the post-Fordist

era might be the same or at least similar everywhere in this world in which the dif‌ferent

parts are linked to each other by globalisation, the responses can be universal only in so

far as the task and the goals are to be def‌ined. e transposition of such goals into legal

arrangements has to take into account the specif‌ic structures in dif‌ferent countries. Very

much depends on the institutional relationship between individual and collective labour

law, on the strength of the actors and institutions providing collective protection as well

1 Davies, Freedland 2004, 152.