Labour law and the subordination issue

Abstract

The author considers that working 'for others' must constitute the basis of the protections ensured by labour law. The “labour” that deserves social protection cannot be limited to the narrow sphere of technical and legal subordination, but it is necessary to identify a new reference type that goes “beyond” subordination. More specifically, the labour law system must be reconstructed on two interrelated levels: a first civil contractual level in which the regulation takes place on the basis of types and cases; a second “labour law level”, in which the distribution of protections, according to the value of labour, takes also place on the basis of new criteria for expressing the social vulnerability. The interpretative adaptation of the notion of subordination, while feasible, would not lead to satisfactory results. The meaning of the normative statement in Article 2094 of the Italian Civil Code does not seem so uncertain as to justify a “purposive” interpretation and to attribute a different and broader normative content to the concept of subordination. It seems preferable to adopt a universalistic approach in which protections can be selectively extended to the whole world of labour, starting from subordination but going beyond subordination, and declined according to the specific needs of social protection expressed and the material conditions in which the work (without adjectives) is performed. In conclusion, it is necessary that the labour law continues to protect dependent work possibly more than before, but at the same time, it is necessary a movement beyond subordination, using the techniques of selective universalism. Notions such as "economic dependence", "personal labour relations", "hetero-organisation" are not alternative criteria to subordination, but criteria that help labour law to recover its strength and justification, from a legal and moral point of view.

Keywords

• employment
• subordination
• self employment
• digital platform
• legal status