The Deconstruction of Employment as a Political Question by Amparo Serrano-Pascual & Maria Jepsen

Author:Amparo Serrano-Pascual & Maria Jepsen
Language: eng
Format: epub
ISBN: 9783319936178
Publisher: Springer International Publishing

Self-Employed Work: An Opportunity to Adopt a Broader Understanding of the Wage-Based Society

In spite of the reforms that have been introduced, in most European countries the legal definition of salaried employment continues to be based on the existence of an employment contract, i.e. of a relationship in which the worker is dependent on their employer (Rodríguez-Piñero 1999; Montoya 1999). In this context, however, ‘dependence’ has a very specific meaning. The legal definition does not refer to the social and economic dimensions of dependence. Instead, it is the legal construct of subordination (the power of one of the parties to direct the work performed by the other) that is employed to distinguish between salaried employment and ‘non-subordinate’ types of work (Lefebvre 2009; Rodríguez-Piñero 1999).

The principle of legal subordination has thus traditionally played a pivotal role in defining the boundaries of salaried employment and also, indirectly, in the definitions of other forms of work (Lefebvre 2009; Didry and Brouté 2006; Chauchard and Hardy-Dubernet 2003; Supiot 2000; Cruz Villalón 1999). This is not a trivial matter, since the definitions in question have informed the establishment of criteria for access (or denial of access) to the rights, regulatory mechanisms and institutions of protection provided for by the salaried employment regime that has progressively developed since the second half of the nineteenth century. In other words, it is the application of the legal principle of subordination that has led to the traditional treatment of salaried employment and self-employment as two formally distinct—one might even say diametrically opposed—forms of employment, despite the fact that the differences between the two are in fact not always that clear. For instance, the principle of legal subordination is often blurred in new forms of work organisation where (salaried) workers are habitually required to show initiative and the ability to act autonomously in the performance of their duties and in terms of how their work is organised (quality circles and semi-autonomous work groups, project work, etc.) (Durand 2012; Lahera Sánchez 2005; Boltanski and Chiapello 2002). Meanwhile, there has been a rise in the use of subcontracting and outsourcing, which involves the contracting of workers and companies that despite being formally independent are in practice often forced to comply with the organisational imperatives and schedules, instructions and strategies of the contracting companies (e.g. with regard to quality standards, manufacturing processes, working hours, etc.) (Perraudin et al. 2013; Lebeer and Martínez 2012).

Just like all the other social sciences in the field of employment, legal theory, too, has had to recognise that it is difficult to maintain clear distinctions between the different employment regimes when dealing with the ‘grey areas’ in the labour market (Martín Valverde 2009; Cairós 2008; Alonso 2004; Supiot 1999). In legal practice, it is frequently necessary to take a range of very different factors into account in order to establish whether or not certain employment relationships constitute salaried employment. This has led to a progressive shift in the boundaries of salaried employment which have proven to be more porous and dynamic than anyone could have imagined at the time when they were first formally established.

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