WORK IN THE APOCALYPTIC IMAGINATION*
José Manuel LASTRA LASTRA**
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. Work and its metamorphoses. III. Business management power and the duty of obedience. IV. Expansive force and workability presumption. V. Fulfilling work: a frustrated aspiration?. VI. Full-time wage employment and atypical employment. VII. Simulation of labor relations. VIII. Precarious hiring and its varieties. IX. Final considerations.
I. INTRODUCTION
At the end of the millennium, haruspices and miracle-workers spend a great amount of their time imagining disaster; presaging a future with great uncertainty and punishment for the labor world and the labor law. Some stopped resorting to the “certain past”1 and forgot it, to repeatedly and frenetically refer to the uncertain and always doubtful future. Recreating the past and revisiting it is a useful task, whenever it serves to update, understand, and evoke a period in which the right to a “laborious poverty”2 emerged with great strength and energy to defend employment against the excesses of selfish individualism, oblivious to social problems.
The problem labor law currently faces consists of comparing a bygone past with a future that is trying to change what it was. This reminds us of the eloquent metaphor of the great legal scholar from Bologna, U. Romagnoli, who, on comparing it to a river said, “Nobody should expect labor law to make the stream of history go against the tide”.3
Meanwhile, the superstitious stubbornly insisted on the disappearance or “the end of work”.4 To do so, they recreated catastrophic images and promoted with elation that the funeral of work was about to come.
The art of divination is an old trade. It consists of foretelling the future, predicting the fate of humankind. In the 44th century BC, Marcus Tullius Cicero, the great tribune of Rome, stated in his De Divinatione5 that there were two types of divination: one in which art is involved, and, the other, in which has no art. There is art in trying to know future events through conjecture. In this case, diviners learned about past events through observation. But there is no art in what has not been observed through reasoning, but through the agitation of the soul, as happens to those who dream and make predictions from prophetic delusions.
The practitioners of divination and dream interpretation decided to focus their apocalyptic fantasies on heralding a turbulent world filled with misery and disaster, as well as the last days when conversion or detachment would come, to leave human beings and their creative energy (work) amid ontological solitude —as E. Nicol would say— to enter, without reservations, into the realm of beings in which “there is only a physical token of the human being that has gone”.6 But life is renewal, which means to be reborn, reappear, as the Ephesian philosopher Heraclitus declared in his Fragments when he explained the theory of the “perpetual and endless transformation of all things”.7 He also said that, “people set a light for themselves in the night-time, when they have died but are alive”.8 In his Stoic Philosophy: Essays and Letters, Seneca wrote that we need not be alive because what matters is not to live longer, but to live well and we must wait for the end nature has determined for us. For him, “the foulest death is preferable to the fairest slavery”.9 Therefore, the thought of the death of employment and labor law can and should be understood as transformation, because everything changes. “The only thing that never varies is the desire to change. Everything changes and transforms; what remains invariable is movement and transformation”.10 And human beings have undergone great mutations in their long and painful historical journey.
II. WORK AND ITS METAMORPHOSES
Anything that is has a shape. And we know things by their shape. Shape is corroboration of the being. But human beings are inconstant; their shape is one that transforms.
The mutation of human beings’ shape is a “title of ontological nobility”.11 What is it that changes? What is left when human existence is not that of a real being? Where is the being, whose existential changes represent efficient variations of a worldly place? Because things lack it, if we do not make them happen ourselves, things will always have the same ontological location. In the strict sense, they do not have a place of their own, because they do not adopt it.
What place has postindustrial society given to work? Should work change to acquire new shapes? Is this the price of its transformation?
Nowadays, the world evolves and changes vertiginously, but not without disruptions, obstacles, sorrows. Work and its various forms of organization are “shedding their skin”.12 Thus, they have stopped being a steady reference. They are now, in many ways, convoluted and uncertain, fragmented in the logics of survival, more personalized and hazardous every day. Biographical cycles of employment have deconstructed themselves; prospects of a continuous and homogeneous working life have been broken, giving way to atypical kinds of unstable, fraudulent contracts with an enormous and grotesque simulation that leads to delaborization and the confinement of work to secrecy and generalized degradation. The intention is clear and cruel: to boost “extreme individualism”,13 to weaken, deregulate, fragment and individualize work —the master of solidarity and social cohesion— and thus prepare for the return to reverse the trends, that is, “come from solidarity as an inspiring principle to selfishness”.14
Deep-rooted changes in the forms of organization and the relative reduction of hegemony of working as an employee, not only affect the demarcation of boundaries, but also have invaded the territorial spaces that belong to labor law. Labor law is forced to defend its territory, not allowing absurd or arbitrary invasions. It should begin by “studying the best way to fight informal work”,15 which is the shaky area of legal regulations and its “sources of production are the epicenter”.16 The dilemma lies in knowing whether this field will continue excluding from its scope non-subordinate forms of work, that is, autonomous or independent work, because until now has avoided submitting the contractual relationship of work to the autonomy of will, but, this field, however, accepts and forms leadership qualities and “legal subjugation”17 for the benefit of business leaders. The idea of subordination does not allow the inclusion of a diversity of forms that could be considered working as an employee. Therefore, the boundaries of the wage-earner conditions need to be reviewed. Alain Supiot proposes a review of the workings of “a) wage employment and self-employment; b) remunerated and unremunerated work; c) private-sector wage employment and public service employment, and d) professional work and training”.18 The strict ironclad law imposed by capital over work in globalized economies questions the age-old security and stability attributed to work.
Nowadays, there are forms of productive organization in which the concept of the employer disappears to evade commitments brought about by the effects of labor relations. There is, however, a hidden businessperson, coming out from “productive externalization and decentralization”.19 Orthodox ultra-liberalists have not lost their influence on the new liberalizing trends and promote an infiltration into labor law based on people’s rights to guarantee a greater competition between companies by eliminating or reducing the number of labor regulations. Forms of subordination have transformed, but have not disappeared. Despite efforts to turn work into a flexible material that can adapt to the needs of the economy, those attempting this have completely forgotten that “Labour is not some ‘human material’ to be molded to the requirements of industry or trade”.20 Until now, work and labor law have resisted the attacks in their dialectical battle with the law of competition. At this time, there is no other method as widely accepted as that of holding a job to distribute the resources of a society. Thus, any society needing very little human labor “would have to modify its principles and structures”.21
Even though triumphant neo-liberalists and reformed communists proclaim the goodness of a happy future, with sham and corrupted ideological drifting, to confuse and disrupt the well-defined borders labor law had outlined so far, they have forgotten, once more, that human energy has Sisyphus’s persistence and determination. Sisyphus was sentenced to push an enormous stone to the top of a mountain and when he was near the top, the stone rolled down to the plain again. But the obstinate Sisyphus did not give up and started his task again without rest. As time goes by, labor law has learned from this example and it has been its greatest challenge. That is why labor law will always be a tireless Sisyphus to “reaffirm, propose again, and protect the humankind from the harsh non-written laws of production and profits”.22 Unfortunately, business ethics reserves a place for workers in “niches of poverty”,23 and ends up “dozing off when economic matters manage to conquer labor law to the detriment of social issues”.24 Nonetheless, like U. Romagnoli, I do not think “labor law could make the stream go against the tide, so that its history can go backwards”.25
III. BUSINESS MANAGEMENT POWER AND THE DUTY OF OBEDIENCE
Working within the scope of the employer’s organization and management requires accepting to do the work agreed upon as stipulated by employers or their representatives. This regulatory reality is the required complement of an economic order based on free trade and the gradual effect of the will of law, which has decided to put “the organization and discipline of the employment in the company” into the hands of the employer – and not in any other’s.26
Employers, by virtue of the work or labor agreement, are entitled to organize the goods and service production system they have freely chosen. The custody to “organize and order employment initially and as long as the agreement is in effect, is called management power”.27
Management power is exercised within the contract, during its execution and within the autonomously or dependently established limits. Thus, management power is the employer’s contractual power. This power bestows the employer with the prerogative to “give orders on how, when, and where the work will be performed”.28 While exercising this power, employers “have at their disposal the services rendered, ordering individual benefits and organizing the work in the company”.29 Employers can verify, watch over, and control the fulfillment of their instructions and orders. A worker, by virtue of the contract, enters a sphere subjected to management power held by the employer. Workers agree to personally render the service, but they do not decide how to perform it, the means they will employ to carry out the job, or the results to be attained. All these decisions form part of the employer’s managerial activities, which assumes that the employer acknowledges the possibility of “giving orders regarding the work being performed”.30
Ownership of management power and its exercise may be delegated. Thus, real hierarchical pyramids of control and management arise.
The employer’s performance within the concept of management power is very broad. Therefore, the laws and regulations on this matter establish limits to prevent abuse that could result in labor disputes.
The exercise of business power may cause “the limits of providing work to be altered unilaterally”,31 to adapt such rendering of services to the changing needs of the work to be done, the “company’s structural, organizational and technological changes, and the improvement of the worker’s professional qualifications”.32 This is the so-called ius variandi, which gives full power to employers to make non-substantial changes to labor conditions.
The limits of the duty of obedience must necessarily be consistent with the limits of business management power. Management power is not absolute or unlimited. Power must be exercised by taking into account the demands of respect to freedom and human dignity, in conditions that guarantee life and health. Orders must be related to carrying out the work, that is, to what has been expressly agreed and pursuant to good faith and equity. Also, the employer’s powers have a boundary: workers’ rights and individual rights.
In Mexican Federal Labor Law, managerial leadership qualities and the duty of obedience are provided for under title 4(II), which refers to workers and employers’ rights and obligations. Chapter II, Article 134 (III) and (IV) establishes workers’ obligations: “To carry out his work under the direction of the employer or his representative, to whose authority he shall be subordinated in everything relating to the work” and “to perform his work with appropriate intensity, care and attention and in the manner, time and place agreed upon”. The Judiciary branch has consistently supported this criterion throughout the years in its various writs.33
IV. EXPANSIVE FORCE AND WORKABILITY PRESUMPTION
In ius labor doctrine, some authors have frequently insisted, with great optimism, on giving labor law the ability to expand or extend its scope of implementation, because it has expansive force that allows it to “take up greater room”.34
For G. H. Camerlynck and Lyon-Caen, this is an expansive right because “the number of people that turn into subordinate workers is constantly increasing… there will be a time in which any individual will have the legal capacity of wage earner”.35
The expansive stage of labor law is based on the fact that dependent relationships have been pervaded by laborization. This has been supported by the traditional principle of in dubio pro operario, to which has been joined by strong in dubio pro laborale, derived from the widespread suspicion of fraud in the face of any extension of activities that have “not been implemented under the conditions in the labor agreement”.36
With regard to Mexican labor doctrine, Mario de la Cueva, one of its main exponents, gave work an expansive nature when the legislators from the State of Queretaro extended labor protection to “blue-collar workers, day laborers, white-collar workers, domestics, and, in general, any labor agreements”.37 Alberto Trueba Urbina states that the initial draft of Article 123 only protected and safeguarded paid work. The commission report that “extended the protection to work in general”38 drafted by General Francisco J. Mujica, was later approved. Alfredo Sanchez Alvarado optimistically holds that day by day labor law is broadening its scope of implementation and validity, not only from the individual’s point of view, but also institutionally. That is why it has an “expansive nature”.39 Nestor de Buen believes the expansive nature consists of a “trend to regulate more and more relations, a trend that is indisputably expansive”.40 In the same report, Hector Santos Azuela refers to the expansive nature of labor law linked to universality because its development broadened until it went beyond national boundaries to “become the guidelines of life to an international legal code”.41 Carlos Reynoso Castillo has successfully dealt with this topic. He states that 20th century labor theory underlined diverse features of labor law, among which was its expansive nature. He considers this law as a “kind of savior trying to cover greater numbers of people with its protecting cloak”.42 Roberto Muñoz Ramón prefers to describe this feature of labor law with the adjective prospective because it reflects “ultimate intentions of this broadening trend”.43 This is certainly a prospective view of those who assured, as they did, that there would be a promising and progressive future for wage employment. The images now observed through the kaleidoscope of the 21st century have changed labor relations lawyers’ perspectives and good intentions, and show a “confusion of certainties”.44 The pluralization of labor law regulatory typology seems to break with the tendency aiming at a universally implemented uniform system of guarantees. It is necessary to review the legal capacity of the wage earner, which has lived on in the entrails of Western labor legislations, as individual subordinate dependence. Until now, atypical wage earners have been excluded. Business organization and working systems have started to adopt a “third generation of objectives and liabilities”.45
However, we can observe that the expansive trends attributed to labor issues have changed over the last decades “to broaden the civil-mercantile contractual sphere, as the scope of legal presumption of workability diminishes and almost disappears”,46 as a result of the predominant economic model that has imposed other rules and considers labor law “an inhibiting element of economies, and tries to escape from its implementation”.47 In Mexican labor legislation, workability presumption has been established in both Article 18 of the 1931 Federal Law and in Article 23 of the 1970 Federal Law, considering it: “the presumed existence of the agreement and the employment relationship between any person who provides a personal service and its receiver”. Such is the meaning of “workability presumption”.48 What was once the Fourth Chamber of the Supreme Court of Justice gave their legal opinion on workability presumption in its various series.49 In Mexico, the determination to avoid the effects of labor is growing, and it will foreseeably be placed at the margin of any regulatory legality, because we still worship the essence inherited by the “historical glamour of Article 123”.50 The concept of protecting the weakest contracting party is languishing. The principle of the most favorable norm is relatively fading away. “It has started losing strength as a governing criterion of the labor system”.51 In various court precedents, the Mexican Judiciary branch has upheld the criterion that “if in doubt, the interpretation that prevails is the one most favorable for the employee”.52
The potential effects of a metamorphosis of this subject makes it possible for it to be adapted to socioeconomic reality, as well as to the crisis this law is experiencing. It is “linked to excessive expansion… work will exist as long as there are human beings; and as long as there is work, there will be rules that must govern these relations”.53 It is necessary to redistribute the currently concentrated hold on subordinate employment, to give work, with no adjectives, a minimum wage. It is vital that we “claim the right to work that does not exist”.54
Delaborization, understood as a “process to exclude the labor-legal protection system”,55 and to replace it with another set of rules, have favored its involuntary flight. Many factors such as the technological society, the privatizing process and trade liberalization have taken part in this flight. Trade liberalization has become a kind of “vilified monster”56 by almost everybody. Nevertheless, this flight toward private law has also meant, in fact, a “flight from any law”.57 Again, private law has crossed the boundaries, without heeding limits, to intrude in legal relationships that once belonged to labor law, as shown by the facts that are “more obstinate than legal reasoning”.58
V. FULFILLING WORK: A FRUSTRATED ASPIRATION?
Fulfilling work has been a constant concern in the social policy of some governments. The misfortune of crisis has prevented its complete fulfillment until now. Nevertheless it has not stopped being “one of the humankind’s greatest aspirations”59 nor has it lost its capacity of being legal duty for the State, imposed by the “establishment of public powers”,60 even though hope of fulfilling work may result being “constitutionally unattainable”.61
The concept of fulfilling work involves the requisite that any individual able to work may have access to an occupation that is, as U. Romagnoli would say in his well-turned and jubilant literary style, “work in a party dress”.62 Updating the concept of fulfilling work is probably “equal access to job opportunities… in which, there should not only be enough jobs for everyone, but they should also be distributed fairly”.63
In prosperous countries, the need to be employed seems to be less pressing. People prefer having more free time for leisure than for work. Besides, it is paradoxical to observe that in many places around the world, a new phenomenon is appearing: “jobless growth”.64 In other words, although production increases, the number of jobs remains the same.
Fulfilling work should not be understood as no unemployment at all, but that unemployment be limited to short periods of time, with the possibility of workers returning to their former trades shortly. This was one of William H. Beveridge’s concerns. He believed that “individual unemployment should not last for a long period of time”.65 People who lose their jobs should find a new one consistent with their abilities and acceptably paid, and without too much time between jobs.
The slogan of the fulfilling work bore fruit during the decades after World War I. Since then, figures show that countries are continuously moving away from this goal, which has turned into a far-fetched hope against a reality characterized by “a diminished regulation of working conditions”.66 The irony of scientific progress is that it makes us take part, with astonishment, in this new era of “jobless growth”,67 in an impatient society that urges its leaders to create new jobs, but it appears that they have excluded the word work from their agendas and political discourse.
VI. FULL-TIME WAGE EMPLOYMENT AND ATYPICAL EMPLOYMENT
Full-time wage employment was known for being provided to a “single employer, on the employer’s premises, on a full-time basis, and usually for an indefinite period of time”.68 This type of work emerged as such in the common or more generalized environment of performing production activities, as well as in the reference to “labor legislation, collective interactions and social security systems”.69
Full-time wage employment emerged with the great industry and developed in the light of labor law requirements and union action. This work was provided for others, in exchange for a salary and was based on a relationship of dependence. For a long time, this model was expected from social policy, but no country could assert that labor demands were totally fulfilled.
However, times have changed and atypical forms started to impose the need of making an inventory of their most important expressions which contrast with social reality and provide evidence of the efficiency of labor legislation. As of the 1980s, atypical forms of work proliferated more often “in the crude reality of the streets”.70 Atypical work not only differs from the morphology of full-time wage employment, but it also tries to escape legal provisions to place itself “out of that perspective or to lessen some of their stricter effects”.71 The atypical phenomenon at times presents itself as a reaction and at others as a deviation from work, which not so long ago was considered normal or typical.
What is truly the worker’s freedom of choice? What demands does a company’s organization require in order to look for hiring illegitimately and on the fringes of the law? Are the atypical forms of work deliberately chosen by the company or do they satisfy a need?
These and other questions have emerged out of the new forms of work over the last decades of the 20th century, when “the right to employment suddenly faced technological changes and economic crisis”.72 Their effects gave rise to new “unfortunate and reprehensible”73 forms of work, which served to contradict and provide evidence against those who —with prophetic plans and a show of enormous naiveté— thought they were announcing the promising and redeeming advent of a new era in the evolution of human work.
As a result of the severe economic crisis, strange figures appeared in the “law of industrious poverty”74 —as Romagnoli would say— to create mechanisms with the underlying aim of helping employers evade their responsibilities, acting on the fringes of labor law and within the limits of civil and business law to simulate legal relationships and “limit or exclude the enforcement of labor regulations”.75
Atypical relations include informal workers, self-employed workers, off-site employees, temporary workers, and undeclared workers “entirely on the fringes of the law”.76
Factual changes and contractual innovations have led to a new approach to reality, which constitutes a challenge to employers, governments, labor unions and labor law. These social and economic transformations have resulted in new forms of organizing work and businesses.
The reduction of the number of working hours that women, children, students and pensioners willingly worked many years ago is now a common alternative for work. Imposed by the need to redistribute working hours, solidarity contracts appeared in France and Italy, while in Spain, there are replacement contracts, in which, for a few hours each day, an employee performs the work of an employee soon to retire. In other countries, fixed-term employment or specific services or work, cyclical or seasonal jobs, temporary and irregular jobs, and temporary replacement and hiring for a trial period have spread. Fixed-term contracts have been combined with apprenticeship to give rise to different working and training contracts. Nor can we forget that besides self-employment and the growing varieties of atypical hiring, there is also undeclared employment everywhere.
VII. SIMULATION OF LABOR RELATIONS
The word simulation comes from the Latin simulatio, which means pretense, feigning, or disguise. A simulator is an imitator, a copier, a fake, an impostor. A simulator makes something by “copying or imitating what it is not”.77 It also involves the “evident alteration of the purpose, nature or true grounds of an act or agreement”.78 In ancient law, various maxims and aphorisms referred to this concept: Simulata nullius momenti sunt (Simulated things are of no account); Actus simulatus nullious est momenti (A simulated act is of no account); Acta simulata…veritatis substantiam mutare non possunt (Simulated acts cannot alter the essence of truth).79 When a simulated agreement is awarded, simulators try to ensure that “the mask is made as well-made as possible”.80 The existence of a simulated act is an intricate and serious problem that is difficult to prove in court, because simulators “take precautions to conceal the simulation”.81 The main characteristic of simulation is a contradiction between what has been stated and what the parties really wanted, “a deceitful and misleading statement and a true but hidden, concealed, will that is not revealed”.82
An element inherent to a simulated contract is that “misrepresentation causes detriment to a third party”.83 Based on this element, it is lawful to execute an action to render the simulated act null and void. This is the criterion adopted by Articles 2181, 2181 and 2183 of the Civil Code for the Federal District. Simulation is not reality, but fiction of reality. It is a “conscious lie to create in others a deceptive illusion, a disguise”.84 A simulated business is one that misrepresents reality, either because it does not exist at all or because it is different from what it appears to be.
In the simulation of a legal business we have: 1. representation that deliberately goes against the purpose; 2. a simulated agreement between the grantors; 3. the intention of deceiving a third party.85 Simulation is the “result of an agreement between contracting parties”.86 Otherwise, “it would only be apparent and would not have any effects”.87 Likewise, F. Messineo expressed the need for simulated agreement, because without it, “simulation would not be efficient, not even between the parties and they would otherwise have two representations with mental reservations”.88
As to the simulation of legal acts, the Civil Code for the Federal District states: “a simulated act is an act in which the parties represent or misrepresent what in fact has not occurred or has not been agreed by them” (Article 2180). There is absolute simulation: when “the simulated act has nothing real at all”. It does not have legal effects (Articles 2181 and 2183) and is relative: “when a legal act is misrepresented concealing its true nature” (Article 2181). The injured third party or the Public Prosecutor can request that the acts be rendered null and void. After a simulated act is annulled, the thing or right must be returned or restored to its owner, with proceeds and interests, if any. However, if the thing or right has been transferred for consideration to a bona fide third party, it will not be returned or restored (Articles 2183 and 2184).
It seems that the employment agreement is “vested with all the Utopian energy”89 that has been conferred to it over the last centuries. Work is spellbinding in the sense that it exerts “a fascination that has made us captives”.90 Appearances show that we now witness greater “variability in the legal nature of labor agreements”.91 The first of these appearances confines employment to “the world of typical work in decline…, and the second, proposes its disappearance, re-contractualization or return to the common private law”.92 The system built on the legal formalization of wage employment acquires a more fragmentary nature. Suppressing the homogeneous worker favors the emergence and advance of the heterogeneous worker, the predominance of which transformed Ford-like factories into a networked company. All of this has “brought about the failure of mythical dogmatic systems”.93 Labor law will have to extend itself to include a series of rights within its scope and offer these rights for other forms of employment: “personal remunerated work deemed independent or autonomous, but economically dependent”.94 At this point it is fitting to recall L. Mengoni, who asserts that “in fact, work does not exist; there are but men that work”.95 In the same regard, Ripert said, “work is man himself in body and soul”.96 Simulation of the legal-labor bond “has gone beyond creative imagination to prevent what in normal circumstances should allow for the enforcement of labor legislation”.97
Employees, exhausted after so many hardships, now face shortages, concealment, instability and simulation. These are the predominant flaws in the world of work, considering the very poor expectations offered by formal economy.
In simulation, the normal business aim differs from the parties’ specific cause or objective, since the parties try to create only an appearance. The parties “conceal a different business aim under the appearance of an agreement”.98 They do this so as “not to negotiate at all (absolute simulation) or to sign an agreement different to the simulated one (relative simulation)”.99
An employment agreement’s affinity with other contractual instruments allows certain personal relationships to fit in civil (individual service agreements) or business (commission agency agreements) concepts.
The most efficient form of differentiation is to consider that an employment agreement is defined by “its own contents aside from the concept or name given by the parties”.100 This solution was adopted in Article 20 of the current Federal Labor Law, which states that: “labor relation shall be understood as any act whatsoever that originated it and an individual labor agreement as any agreement whatsoever regardless of its form or name”. Further ahead, Article 21 provides the presumption of the existence of the contractual bond and the labor relation between the person providing a personal service and the recipient of that service. This rule has not been enough to achieve true labor identity, nor has it prevented civil and business law from invading their mutual boundaries, because the effects of globalization, competition among economies and new forms of production cause deep mutations in those involved and in labor law’s power to “alter its characteristic features and physiognomy”.101 Limits disappear; a globalized employee loses his sense of belonging to an age-old community as economy becomes more abstract; the social function that needs to govern it disappears from the horizon. How can we overcome this loss of identity in the labor world? The ILO has repeatedly proposed to return to the forms of employment in which men and women can have a “decent work, in conditions of freedom, equity, and human dignity”.102 Therefore, it would be necessary to devise, test and spread innovative approaches that will have to “constitute the basis of decent work”.103
Meanwhile, employers are trying to set up a business ethics, in which they are trying to assert abstract principles: excellence, tolerance, loyalty, sincerity, solidarity. These principles translate into nothing and they are only aimed at presenting the same company with a better image. However, they do govern behavior, to which labor law has no access. The company turns into a “moral police, which reaches places where the State does not”.104 The business ethical code has replaced the spontaneous good actions. Companies absorb human beings to the point companies can artificially modulate their spirit, educate their emotions and, even, invade their family life. All this is done “under the company’s ethical mantle”.105
VIII. PRECARIOUS HIRING AND ITS VARIETIES
Considering the inefficiency of the economic model adopted by the governments pigmented with neo-liberal overtones and the frenetic fury of free trade that have had an impact on employment, atypical clandestine forms of employment, on the fringes of the law —and thus illegal— have appeared, determined to expel work out from the formal economy, creating ingenious and fraudulent forms of hiring that elude the effects brought about by labor law. The veiled intention is to induce delaboralization. This regulatory exclusion is trying to “legally decode social reality”.106 The flight of labor law from these relations produces deregulation, individualization and deunionization, that is, precarious employment. In short, it could be said that the indiscriminate use of new information technologies “polluted” by productivity and the lack of a specific workplace have also contributed to precariousness. A clear example of this is outsourcing and telework.
1. Part-Time Work in ILO Convention 175
Nowadays, the growing imbalance that affect hiring and employment has modified work structures and organization. These effects come from different origins, one of which is the globalization of economy, which looks for cheap labor. We should not forget that capital travel as well. Another is the impact new technologies have on work organization, which hastens events to transform the labor setting and unveils “a much more flexible model of productive processes”,107 and precipitates the course of the changes in the different scopes of social life.
The inclusion of new hiring varieties led to raising part-time employment due to the need or global imperative to recover employment to the level of an ILO International Convention. This gave way to the appearance of part-time workers with fewer working hours than those in positions with greater labor stability, with the right to join a union, collective bargaining, and workplace safety and health. But it is evident that the lack of continuance in the position makes it impossible for them to become entitled to rights that are only acquired with time or seniority.
In view of this, the General Conference of the ILO adopted Convention 175, dated June 24, 1994, aimed at establishing the concept of part-time work, described as follows: “an employed person whose normal hours of work was less than those of comparable full-time workers” (Article 1(a), Convention 175).
Due to the urgent and pressing need to create new employment and reactivate economic growth in order to eradicate growing endemic unemployment and precarious hiring, varieties attempting to perform new functions, to improve and guarantee fairer working conditions by means of sharing the “resources and wealth created by work” have appeared.108
2. Telework
The use employers have made of new information technologies may contribute to perfecting and broadening the practical exercise of their power of management and control over their workers’ activities such as installing closed circuit systems or controlling through the computer used by the worker. All this may imply certain changes in working conditions and often consist of increased work-related stress as a consequence of continuous surveillance or excessively strict control. These computerized working conditions, “polluted” by the impressive productivity of new information and communication technologies often affect workers’ health. There are new eye diseases resulting from long hours of work in front of a computer screen, a greater frequency of neck illnesses and greater stress.
The use of new technologies has brought about innovations of great importance in the appearance of various new causes for dismissal. These have a common factor in real or alleged misuse of the resources placed at the worker’s disposal to perform his work: personal phone calls from corporate mobile phones, inappropriate Internet surfing, the use of e-mail from the company’s computer server, etc.
What factors have motivated the growth of self-employment? The tertiarization of economy; that is, the progressive increase of the tertiary sector, which outnumbers the employees in the industrial sector and progressively penetrates other sectors. In the tertiary sector, work is provided by very qualified employees in a “sort of parautonomy or weak or diffuse subordination”.109 The high level of these employees’ qualifications makes it possible to eradicate control or subordination to corporate guidelines, so that the how, the when and the where the service is provided are no longer relevant issues.
In the early seventies, Jack Nilles, a real pioneer in the study and development of telework, coined the term telecommuting in the United States of America. This word has predominated the British term telework while the French, in an attempt to linguistically decolonize themselves, have translated Nilles’s expression as telependulaire.
Telework is a form of “work performed by a teleworker mainly or for an important part, at (a) location(s) other than the traditional workplace for an employer or a client, involving the use of telecommunications”.110
Teleworkers do not go to a traditional workplace: the company, the office. The place where the work is carried out can be: the teleworker’s home, a telecenter, or the teleworker’s vehicle used to visit clients. The work is performed “out of the place where results are evaluated”.111 Furthermore, the employer cannot physically observe how the work is performed.
Telework is “distance work using telecommunications”.112 Distance work is carried out for a company or institution without going to the traditional workplace. It involves the use of the telephones, fax machines, local networks, satellites, digital networks, e-mail, audio or videoconferences. Therefore, if “telecommunications are not used, there is no telework”.113 Telework is also a corporate decision aimed at “increasing productivity with a very limited capital investment, drastically reducing costs and improving customer service”.114
As can be seen, this mode of employment has advantages and disadvantages for those who work this way, as explained by author Patricio Nicola.115
As can be seen, the use of new technologies results in ingenious forms that in most cases elude the effects of labor regulations, and there also appear varieties imposed by social reality.
3. Self-employment
Self-employment emerges as an alternative form of employment for people who had a job and lost it for different reasons, and who want to reinsert themselves into “economic activity, as an individual or part of a group made up of more people, with the essential purpose of having an occupation”.116
Individual self-employment consists of a single person engaging in a productive or professional activity. Collective self-employment, or associated work, consists of an association of various entrepreneurs for work purposes, through the incorporation of a company that will constitute a group and provide employment to the partners.
There are different hypotheses on self-employment, which can be summed up as: a) Refuge work, that is, it would serve as a refuge during depressive stages “for unemployed people coming from other professional circumstances”;117 b) Self-employment as a job transition mechanism, here we can channel a large part of the unemployed, who will later reinsert themselves into salaried employment; c) Sectorial change, produced by the effects of tertiarization in the economy that could benefit the professional field; d) new forms of employment.
From a business perspective, people think that the existence of flexible forms of organizing the working time could increase productivity and competitiveness. From the perspective of economic policy, it has been believed that flexibility was a way of growing more and creating more jobs. From the consumer’s point of view, it was thought that the existence of less rigidity in business schedules would improve the convenience of shopping and the quality of free time. Interestingly, the perspective that is least taken into account in these debates is that of the main characters, that is, from “the workers’ perspective”.118
IX. FINAL CONSIDERATIONS
The apocalyptic diviners imagine and reproduce the worst catastrophes for work and labor law in their speeches, boding its disappearance or death. However, they forget that there might be reappearances, transformations and, why not, a resurgence.
Technological advances encourage a growing reduction or elimination of direct human work. In a few years, diverse professional concepts have been born and have disappeared, but as long as there are human beings, there will be work; as long as there is work, there will be regulations governing these relations. Social justice demands efficiency and social justice cannot be conceived without respect for humankind, without humanistic facets. In our present societies, objects and brands are displayed more than legal and moral duties. Unfortunately, material requirements predominate over humanitarian obligation, needs over virtue and well-being over good. Solidarity has been replaced by seduction; well-being has become God and advertising its false prophet.
Work and labor law will continue on their long journey with firm steps because they cannot go against the strong tide in order to go back in history.
Notes
* Translated by Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute; professor at the School of Accounting and Administration, and the School of Law; a national researcher. He was awarded the UNAM Teaching Prize in 2002.
1 Seneca, Tratados filosóficos, Mexico, Porrúa, 1973, p. 100.
2 Romagnoli, Humberto, El derecho, el trabajo y la historia, trans. by Marina Tomadini, Madrid, Consejo Económico Social, 1997, p. 33.
3 Romagnoli, Humberto, Del lavoro ai lavori, scritti in onore di Giuseppe Federico Manzini, Vol. I: Diritto del Lavoro, Milan, Giuffrè Editore, 1998, p. 509.
4 See, among others, Rifkin, Jeremy, La fin du travail; Forrester, V., L’horreur economique, Fayard 1996; Domenique Meda, La fin de la valeur travail, F. Gallimerd, 1997; Collin, Denis, La fin du travail et la mundialisation, Paris, L’Haramatan, 1998; Kern, Horst and Shuman, Michael, La fin de la division du travail, Paris, Edition de la Maison des Sciences de l’homme, 1989; Schnapper, Domenique, Contre la fin du travail, 1997; Lipovetsky, Gilles, Le crépuscule du devoir, Paris, Editions Gallimar, 1992; Rodgers, Gerry and Janine, El trabajo precario en la regulación del mercado laboral, Madrid, Ministerio del Trabajo y Seguridad Social, 1992; Castillo, Juan José, La automación y el futuro del trabajo, 2nd ed., Madrid, Ministerio del Trabajo y Seguridad Social, 1991; Barraycoa, Javier, El trabajador inútil, Barcelona, SCIRE-Balmes, 1999; Buen Lozano, Néstor de, La decadencia del derecho del trabajo, Mexico, Porrúa, 2001.
5 Compare Ciceron, Marco Tulio, De la adivinación, intr. and trans. by Julio Pimentel Álvarez, Mexico, UNAM, 1988.
6 Nicol, Eduardo, La agonia de Proteo, Mexico, UNAM, 1981, p. 12.
7 Fernandez, Galiano, A., “Conceptos de ‘naturaleza’ y ‘ley’ en Heráclito”, Anuario de Filosofía del Derecho, Madrid, Gráficas González, 1958, Tome V, p. 283. In trying to explain the cosmological doctrine of the eternal flow, Heraclitus was forced to use vivid images that materialized in the image of a stream, which is well-known in his Fragments: “You cannot step twice into the same rivers; for fresh waters are ever flowing in upon you”. “We step and do not step into the same rivers; we are and are not”.
8 Idem.
9 Seneca, op. cit., note 1, p. 175.
10 Caso, Antonio, Obras Completas, Mexico, UNAM, 1972, Tome VI, p. 4.
11 Nicol, Eduardo, op. cit., note 6, p. 9.
12 Hansenne, Michael, Defending Values, Promoting Change, Geneva, Switzerland, International Labour Organization, 1994, p. 30.
13 Alonso, Luis Enrique, Trabajo y posmodernidad: el empleo débil, Madrid, Fundamentos, 2000, p. 223.
14 Plá Rodríguez, Américo, “Otra inversión de tendencias en la seguridad social: de la solidaridad al egoismo”, Revista Española de Derecho del Trabajo, Madrid, Civitas, 1992, p. 821.
15 Plá Rodríguez, Américo, “La actual coyuntura del derecho laboral”, Descentralización productiva y nuevas formas organizativas del trabajo. X Congreso Nacional de Derecho del Trabajo y de la Seguridad Social (Zaragoza, 28 y 29 de mayo de 1999), Madrid, Ministerio del Trabajo y Asuntos Sociales, 2000, Labor Relations series, No. 28, col. Informes y Estudios, p. 1174.
16 Romagnoli, Humberto, “Las transformaciones del derecho del trabajo”, Revista Debate Laboral, Americana e Italiana del Derecho del Trabajo, San Jose, Costa Rica, Year 5, No. 12, 1992, p. 9.
17 Cruz Villalón, XX Jornadas Universitarias Andaluzas de Derecho del Trabajo y Relaciones Laborales, Madrid, Consejo Andaluz de Relaciones Laborales, 2002, p. 23.
18 Supiot, Alain, “Perspectives on Work: Introduction, Special Issue: Perspectives on the Nature of the Future of Work”, International Labour Review, Geneva, Vol. 104, No. 4, October-December, 2002 (http://www.ilo.org/public/english/support/publ/revue/articles/int 135-6.htm).
19 Cruz Villalón, Jesús, op. cit., note 17, p. 26.
20 Supiot, Alain, op. cit., note 18, p. 667.
21 Macarov, David, “La planificación para un mundo casi exento de trabajo”, International Labour Review, Geneva, vol. 104, No. 4, October-December, 1985, p. 464.
22 Romagnoli, Humberto, “Las transformaciones…”, op. cit., note 16, p. 8.
23 Candia, José Miguel, “Crisis del trabajo”, Nueva Sociedad, San José, Costa Rica, No. 166, March-April, 2000, p. 132.
24 Ibidem, p. 7.
25 Romagnoli, Humberto, Del lavoro…, op. cit., note 3, p. 517
26 Montoya Melgar, Alfredo, Derecho del trabajo, 22nd ed., Madrid, Tecnos, 2001, p. 363.
27 Palomeque López, Manuel Carlos et al., Derecho del trabajo, 9th ed., Madrid, Centro de Estudios Román Areces, 2001, p. 704.
28 Alonso Olea, Manuel, Derecho del trabajo, 20nd ed., Madrid, Civitas, 2002, p. 376.
29 Montoya Melgar, Alfredo, op. cit., note 26, p. 363.
30 Albiol Montesinos, Ignacio et al., Derecho del trabajo, 3rd ed., Valencia, Tirant Lo Blanch, 2001, Vol. II, p. 466.
31 García Ninet, J. Ignacio, Derecho del Trabajo, Navarra, Editorial Aranzadi, 2001, p. 402.
32 Alonso Olea, Manuel, op. cit., note 28, p. 377.
33 SUBORDINATION, CONCEPT OF. Subordination means, from the employer’s perspective, a legal power of leadership, correlative to the service provider’s duty of obedience, as provided for in Article 134(III) of the 1970 Federal Labor Law. This section binds the worker to provide the service under the direction of the employer or his representative, and the worker will be subordinated to their authority in everything relating to the work. Federal Weekly Court Report, Courtroom Four, Sections 151-156; Part Five, p. 228. SUBORDINATION, CONCEPT OF. Subordination, a characteristic element of an employment relationship, as referred to in Article 20 of the Federal Labor Act, consists of the employer’s power to give orders to employees at any time within working-hours, so that they provide their services, and, correlatively, the employees’ obligation to comply with the conditions and demands of the work. Second Collegiate Court of the Sixth Circuit, Federal Weekly Court Report, Collegiate Circuit Courts, Section 11, May, p. 407.
34 Alonso, Martín, Enciclopedia del idioma, Vol. II: D-M, 3rd reprint, Mexico, Aguilar, 1999, p. 1932.
35 Camerlynck, G. H. and Lyon-Caen, G., Derecho del trabajo, 5th ed., trans. by Juan M. Ramírez Martínez, Madrid, Aguilar, 1974, pp. 17 and 18.
36 Montoya Melgar, Alfredo, “El trabajo dependiente como categoría delimitadora del derecho del trabajo”, Revista Española de Derecho del Trabajo, Madrid, Civitas, September-October, 1998, No. 91, p. 716.
37 Cueva, Mario de la, El nuevo derecho mexicano del trabajo, 6th ed., Mexico, Porrúa, 1980, Vol. I, p. 90.
38 Trueba Urbina, Alberto, Nuevo derecho del trabajo, 3rd ed., Mexico, Porrúa, 1975, p. 210.
39 Sánchez Alvarado, Alfredo, Instituciones de derecho del trabajo, Mexico, 1967, Tome I, vol. I, p. 210.
40 Buen Lozano, Néstor de, Derecho del trabajo, Mexico, Porrúa, 1974, Vol. I, p. 61.
41 Santos Azuela, Héctor, Derecho del trabajo, Mexico, McGraw-Hill, 1998, p. 116.
42 Reynoso Castillo, Carlos, “Deslaboralización”, Revista Alegatos, Mexico, No. 45, May-August, 2000, p. 242.
43 Muñoz Ramón, Roberto, Derecho del trabajo, Mexico, Porrúa, 1976, Vol. I, p. 161.
44 D’Antona, Máximo, “Los cambios del derecho y el problema de la subordinación en el derecho italiano”, Revista Debate Laboral, San José, Costa Rica, Year 2, No. 4, 1989, p. 68.
45 Mückenberger, Ulrico, Towards a New Definition of the Employment Relationship, Geneva, ILO, Vol. 115, No. 6, 1996, p. 741.
46 Montoya Melgar, Alfredo, op. cit., note 26, p. 717.
47 Reynoso Castillo, Carlos, op. cit., note 42, p. 242.
48 Ibidem, p. 91.
49 Fourth Room, 6th Series, Weekly Federal Court Report, Vol. 25, 5th section, p. 56, “We presuppose the existence of a labor agreement entered into by the personal service provider and its receiver”; Vol. 46, 5th section, p. 15, “the employer’s acceptance of the rendering of the service places them within the existence of workability presumption”; Vol. 46, 5th section, p. 15, “If an employment relationship is denied, the worker must prove during the negotiations that services were provided, to assume that there was a labor agreement”, Collegiate Circuit Court, 8th series, XI-April, p. 302; “legal presumption of the existence of an employment relationship does not last for a short period of time, but continues. As a general rule, the labor agreement creates bonds that last indefinitely. It is clear that legal presumption of its existence must persist”, Second Chamber, 9th series, Weekly Federal Court Report, August 11, 1995, court precedent 2a./J.38/95, p. 174, “When the employer denies an employment relationship without furnishing the relevant instruments, the presumption that punishes this omission according to labor laws must be made effective”.
50 Reynoso Castillo, Carlos, Los atentados al contrato de trabajo. ¿Hacia un nuevo derecho del trabajo?, Mexico, UNAM, 2003, p. 80.
51 Mercader Uguina, Jesús R., “La silenciosa decadencia del principio de norma más favorable”, Revista Española de Derecho del Trabajo, Madrid, No. 109, January-February, 2002, p. 22.
52 Circuit Collegiate Court, Weekly Federal Court Report, 7th series, 66, 6th part, p. 33. “If in doubt, the interpretation that will prevail is the one that most favors the employee. The indicated provisions refer to the immediate application of the regulations in their favor and any doubt regarding their interpretation by the Courts, in the worker’s interest”, 91-96, 6th part, p. 120; and 3rd section, April, 1996, court precedent I.3°.T.20 K, p. 439.
53 Rusciano, Mario, Los nuevos perfiles del derecho del trabajo del 2000, p. 215.
54 Romagnoli, Humberto, “Redefinir las relaciones entre trabajo y ciudadanía: el pensamiento de Máximo D’Antona”, Nuevos escenarios para el derecho del trabajo: familia, inmigración y noción de trabajador, Madrid, Marcial Pons, 2001, p. 315.
55 Baylos, Antonio, “La huída del derecho del trabajo. Tendencias y límites de la deslaboralización”, El trabajo ante el cambio del siglo. Un tratamiento multidisciplinar, Madrid, Marcial Pons, 2000, p. 36.
56 Ghose, K. “Trade Liberalization, Employment and Global Inequality”, ILO Review, Geneva, Vol. 119, No. 3, 2000, p. 311.
57 Bacigalupo Saggese, Mariano, “El derecho público ante la privatización y liberación de los servicios de interés general: repliegue o transformación”, Revista de la Facultad de Derecho, No. 16, 2000, p. 161.
58 Castillo, Blanco, Federico, “Las problemáticas fronteras entre el derecho laboral y el derecho administrativo: a propósito de los contratos temporales en el sector público”, Revista Española de Derecho Administrativo, Madrid, Civitas, April-June, 1995, p. 194.
59 Buen Lozano, Néstor de, “Desempleo y concertación social”, Revista del Instituto Iberoamericano de Seguridad Social, Madrid, No. 1, January-April, 1994, p. 119.
60 Peña Pinto, Marcos, “Políticas activas y protección al desempeño”, Presupuesto y Gasto Público, Madrid, Instituto de Estudios Fiscales, No. 14, 1995, p. 133.
61 Koch, Claus, “La civilización del desempleo”, Letra, Madrid, No. 37, March-April, 1995, p. 46.
62 Romagnoli, Humberto, El derecho…, op. cit., note 2, p. 37.
63 International Labour Organization, World Employment 1996/97, Geneva, ILO, 1996, pp. 48 and 49.
64 Ibidem, p. 23.
65 Beveridge, William H., La ocupación plena, trans. by Raúl Velasco Terres, Mexico, FCE, 1947, p. 23.
66 International Labour Organization, op. cit., note 63, p. 16.
67 Ibidem, p. 16.
68 Córdova, Efrén, “From Full-Time Wage Employment to Atypical Employment: A Major Shift in the Evolution of Labour Relations?”, International Labour Review, Geneva, Vol. 105, No. 4, October-December, 1986, p. 432.
69 Idem.
70 Buen Lozano, Néstor de, “La lucha contra el desempleo”, Boletín Mexicano de Derecho Comparado, Mexico, Year 19, No. 56, May-August 1986, p. 470.
71 Córdova, Efrén, op. cit., note 68, p. 431.
72 Javiller, Jean-Claude, “Pragmatism and Daring in International Labour Law”, International Labour Review, Geneva, Vol. 113, No. 4, 1994, p. 562.
73 Ibidem, p. 563.
74 Romagnoli, Humberto, El derecho…, cit., nota 2, p. 563.
75 Reynoso Castillo, Carlos, “Contratación precaria”, Boletín Mexicano de Derecho Comparado, Mexico, Year 23, No. 68, May-August 1990, p. 538.
76 Hernández Rueda, Lupo, “Actualidades del derecho del trabajo”, Cuestiones Laborales. Homenaje al Maestro Mozart Victor Russomano, Mexico, UNAM, 1988, p. 414.
77 Alonso, Martín, Encilopedia del Idioma, Tome III: N-Z, Mexico, Aguilar, 1991, p. 3781.
78 Idem.
79 Mans Puigarnau, Jaime M., Los principios generales del derecho, Barcelona, Bosch, 1979, p. 444.
80 Hernández Gil, Antonio, Obras completas, Madrid, Espasa-Calpe, 1988, Tome III, p. 615.
81 Galindo Garfias, Ignacio, Teoría general de los contratos, Mexico, Porrúa, 1996, p. 409.
82 Ibidem, p. 392.
83 Ibidem, p. 393.
84 Ferrara, Francisco, La simulación de los negocios jurídicos, trans. by Rafael Atard and Juan A. de la Puente, Madrid, Librería General de Victoriano Suárez, 1926, p. 60.
85 See ibidem, p. 61.
86 Ibidem, p. 65.
87 Galindo Garfias, Ignacio, op. cit., note 81, p. 393.
88 Messineo, F., Manual de derecho civil y comercial, Tome II: Doctrinas generales, trans. by Santiago Sentis Melendo, Buenos Aires, EJEA, 1954, p. 447.
89 Meda, Dominique, El trabajo, Barcelona, Gedisa, 1998, p. 231.
90 Idem.
91 Monereo Pérez, José Luis, Algunas reflexiones sobre la caracterización técnico jurídico del derecho del trabajo, Madrid, Civitas, 1996, p. 93.
92 Casas Bahamonde, María Emilia, “Las transformaciones del derecho de trabajo y el futuro del derecho del trabajo”, El trabajo ante el cambio de siglo: un tratamiento multidisciplinario, Madrid-Barcelona, Marcial Pons, p. 202.
93 Monereo Pérez, José Luis, op. cit., note 91, p. 96.
94 Casas Bahamonde, María Emilia, op. cit., note 92, p. 204.
95 Mengoni, L., Le contrat de travail en droit italien, CECA, Eurolibri, 1966, p. 421.
96 Ripert, G., Les forces créatrices du droit, Paris, LGDJ, 1955, p. 276.
97 Reynoso Castillo, Carlos, op. cit., note 50, p. 81.
98 Martín Valverde, Antonio et al., Derecho del trabajo, 9th ed., Madrid, Tecnos, 2000, p. 494.
99 Enciclopedia Jurídica Básica, Tome IV: PRO-ZON, Madrid, Civitas, 1994, p. 6217.
100 Palomenque López, Manuel Carlos et al., op. cit., note 27, p. 657.
101 Verge, Pierre and Vallé, Fuylaine, Un droit du travail? Essai sur la spécificité du droit du travail, les Éditions Yvon Blais Inc., p. 171.
102 Hepple, Bob, “Equality and Employment for Decent Work ”, International Labour Review, Geneva, 2001, p. 5.
103 Egger, Philippe, “Perspectives”, International Labour Review, Geneva, 2002, p. 187.
104 Barrycoa, Javier, op. cit., note 4, p. 112.
105 Ibidem, p. 114.
106 Baylos, Antonio, op. cit., note 55, p. 35.
107 Espiricueto Islas, María Esther, “La innovación tecnológica en la organización del trabajo”, Sicori, Boletín Mensual, PEMEX, February 1997, p. 5.
108 Laperrière, René, Droits du travail et commerce international, Department des Sciences Juridiques, UQAM, Les Éditions Yvon Blais, Inc., 1995, p. 122.
109 Revilla Esteve, Eugenia, La noción de trabajador en la economía globalizada, Navarra, Aranzadi, 2003, p. 277.
110 Balainplain, R., The legal and contractual situation of teleworkers in the European Union, Dublin, pp. 8 and 9. See http://www.eurofound.eu.int/publications/files/WP9728EN.pdf# search='the%20legal%20and%20contractual%20situation%20of%20teleworkers%20in%20the%20member%20status%20of%20the%20European%20foundation’, p. 9. See also Barrios, Christian and Muñoz, Pedro, Teletrabajo, Madrid, Dolmen Ediciones, 1996; Padilla Meléndez, Antonio, Teletrabajo, Madrid, RA-MA Ediciones, 1998; Barrera, Edmundo, Trabajar en la sociedad de la información, Madrid, Fundación Universidad-Empresa, 1999; Sellas i Benvingut, Ramón, El régimen jurídico del teletrabajo en España, Navarra, Arazandi, 2001; Gray, Mike et al., El teletrabajo, Madrid, Fundación Universidad-Empresa, 1995; Thibault Aranda, Javier, El teletrabajo, Madrid, Consejo Económico Social, 2000; Muñoz de Bustillo Llorente, Rafael, Nuevos tiempos de actividad y empleo, Madrid, Ministerio del Trabajo y Asuntos Sociales, 2003; Associazione di Diritto del Lavoro e della Sicurezza Sociale, Impresa e nuovi modi di organizzacioni del lavoro, Milan, Giuffrè Editore, 1999; Calles, Martha Alicia, Empleo, discriminación, teletrabajo y otras temáticas, Cordoba, Argentina, Ediciones Macchi, 1999; Ortiz Chaparro, Francisco, El teletrabajo, Madrid, McGraw-Hill, 1997; Alarcón Caracuel, Manuel Ramon et al., Nuevas tecnologías de la información y la comunicación y derecho del trabajo, Alicante, Bomarzo, 2004; also by the same author, El trabajo ante el cambio de siglo: Un tratamiento multidisciplinar, Madrid, Marcial Pons, 2000; Barrero Fernández, Antonio, El teletrabajo, Madrid, Ágata, 1999.
111 Barrero Fernández, Antonio, op. cit., note 110, p. 14.
112 Ortiz Chaparro, Francisco, op. cit., note 110, p. 94.
113 Ibidem, p. 39.
114 Barrios, Christian and Muñoz, Pedro, op. cit., note 110, p. 94.
115 Nicola, Patricio di, Il nuovo manuale di lavoro, 2nd ed., Milan, Edizione SEAM, 1999, p. 26. He finds the following advantages for the teleworker: a) less time devoted to commuting; b) work according to one’s own availability; c) more free time; d) control by objectives; e) greater proximity to family and friends; f) free choice of the position. However, there are also the following disadvantages: a) isolation, decreased rational external life; b) less free time (the workaholic syndrome); c) less guidance and assistance for the job; d) greater proximity to family and friends; e) diminished spatial difference between home and office. He also observes certain advantages for the company as well: a) higher levels of productivity; b) a reduction in costs and business dimensions; c) more motivated dependents; d) a lower number of mid-level boss and roles; e) less space to be leased in buildings; f) greater management flexibility. He also mentions different disadvantages for the company: a) difficulties in managing of distance workers; b) cultural reorganization of corporate processes; c) different work and management contracts; d) conflicts with middle management levels; e) greater spaces needed for telecommunication devices; f) redistribution of the business organization.
116 García Jiménez, Manuel, Autoempleo y trabajo asociado, Cordoba, Spain, Ediciones de la Universidad de Córdoba, 2001, p. 14.
117 Cuadrado Roura, Juan R., Empleo autónomo y empleo asalariado, Madrid, Ministerio de Trabajo y Asuntos Sociales, 2004, p. 16.
118 Muñoz, de Bustillo Llorente, Rafael, op. cit., note 110, p. 363. Asking them their “level of satisfaction on this issue”; Ritter, Joseph A. and Anker, Richard, “Good Jobs, Bad Jobs: Workers’ Evaluations in Five Countries”, International Labour Review, Vol. 121, No. 4, 2002, p. 367.
