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95 Chapter 6 “The Employment Contract Is Dead! Hurrah for the Work Contract!” A European Perspective bruno caruso T his chapter presents the recent history of the individual employment contract in a civil law system (that of Italy), describes its current functions, and considers its potential transformation in the European context. As often the case when applying the comparative method, we come to perceive that, even within the same trends and functions in different national systems, legal institutions, particularly in the employment law field, carry strong traits of the juridical and constitutional systems of the nation states in which they originated. Nonetheless, globalization and the building of a European system have made the trend toward unity in difference increasingly evident. The history of the individual employment contract in the Italian system has thus come to resemble that of the ugly duckling in the fairy tale— unappreciated and despised at first, even feared (to mix a metaphor) for being the Trojan horse of liberal deregulation. However, as we come to see, like the ugly duckling, the individual employment contract is ultimately transformed into a beautiful swan—a tool for evaluating individual capacitas in a renewed and integrated regulatory institution: the personal work contract. This transformation is accomplished by the adoption of a protective infrastructure established by law, by its elaboration through the process of collective bargaining, and ultimately by its entrenchment in the new European structures of fundamental rights. two Diverse Yet convergent trends Two analytical trends emerge in any discussion of the standard employment contract (SEC) in Italy and Europe, but both converge on the same result: the crisis of the SEC as an institution. 96 Rethinking Workplace Regulation On the one hand, the SEC is changing in response to demands for greater flexibility in its internal regulation of the terms of the employment relationship. Throughout Europe, in varying degrees, the desire for numeric, wage, functional, or temporal flexibility has led to the SEC’s reregulation (not deregulation) either by formal legal means or through collective bargaining. Many of the terms and conditions governed by the SEC—dismissals, working time, occupational and professional status, fixed-term contracts—in both the private and public sectors (OECD 2005, 2008) have been reregulated to lessen their rigidity and, in some cases, to reduce the protection they once afforded. These changes have been directly influenced by the transformation of internal labor markets within enterprises due to the organizational changes associated with the postFordist era. We may term this the endogenous aspect of the SEC crisis. On the other hand, the crisis of the standard employment contract has an exogenous as well as an endogenous dimension. This dimension is linked not to changes in the technical organization of work but rather to the transformation of the organizational structure of corporations as they seek to adapt to the globalization of markets (the network structure of the company), and to the deeper transformations of social organization (the service economy). These phenomena generate profound changes in the composition and functioning of labor markets, the regulatory response to which involves not only the transformation of the traditional SEC into an institution with greater flexibility of content but also its declining role in organizing the labor force. Numerous alternative contractual models are used now for mobilizing the work of others: the SEC has ceased to be the sun in the galaxy and has become a mere planet, a contract like any other (Caruso 2004, 22). These new contractual models or templates mirror real changes in the employment market and in the organization of work relations, giving rise to an unprecedented differentiation of workers and of the arrangements under which they work. Given the number of workers and types of work contracts available, legal discourse can summarize this development as a progressive enlargement of the grey area between dependent and autonomous work. These two trends are separable only for analytical and conceptual purposes because they are intertwined in the economic and social realities of the labor market. However, they give rise not only to different theoretical questions but also to different regulatory solutions. The effect on the SEC of flexibly organizing work, especially in continental Europe, puts in question the legal sources and consequences of external regulation , not least with respect to the binding effect of statute law and collective agreements on individual contracts—in continental legal terms, the issue of inderogability. By contrast, the transformation of company structures and labor markets confronts the SEC with competing contractual [3.144.252...

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