The Need to Go Beyond the Contract: 'Economic' and 'Bureaucratic' Dependence in Personal Work Relations

Abstract

Traditionally, labor law scholars have always perceived the need to go beyond the contract, meant as the formal arrangement, and the classical contract law, insofar as they are in themselves unable to combine antithetical terms such as employment contract versus economic dependence and bureaucratic organization, employment contract versus employment relationship. After an overview of the above mentioned debate, taking a comparative perspective, the article first concentrates on the evolution of the indicia used to define the line between employees and independent contractors. Secondly, it considers the development of new techniques of legal classification of personal work relations in Europe. With regard to the latter, the focus is on Article L. 7322-2 Code Trav. (Fr), the Law 20/2007 (Sp.), regulating the Trabajo autonomo economicamente dependiente (economically dependent worker) and the Italian legal regulation of parasubordinazione and, more recently, of the project-based work (Article 61, D.lgs. 276/2003). The conclusion is that, for the purpose of determining the scope of personal employment law, European legal systems have in recent decades demonstrated a converging tendency to reduce the attention paid to the formal contractual arrangements and have instead focused on main factors of the relationship denoting a condition of “economic” and “bureaucratic” dependence. In particular, comparison indicates that the most common factors regarded as denoting a condition of “economic” and “bureaucratic” dependence are: (1) the inability of the worker to spread the risks among different clients; (2) the continuity of the relationship; (3) the fact that the worker’s performance of services is strictly linked to the business organization of the client; (4) the fact that the worker, in performing his or her services, relies to a large extent on the know-how, the technical assistance and/or the material infrastructure of the client; and (5) the fact that there is an obligation of predominantly personal service. The final section suggests that, for the purpose of both competitiveness and social protection goals, the aforementioned judicial approach and form of legislation are better able either to understand or to regulate the modern forms of long-term cooperation between workers and business organizations based on quasi-hierarchy.

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