Working Performance and Organisational Flexibility: At the Core of the Employment Contract

23 Pages Posted: 1 Mar 2018

See all articles by Elena Gramano

Elena Gramano

Bocconi Legal Department; Bocconi University School of Law

Date Written: February 5, 2018

Abstract

Technological rapid developments; new ways of offering services on the market through websites, digital platforms, online providers; fragmentation of the employer’s role into groups or nets of companies that share decisions and processes often outside formal relationships of control or of capital sharing; mechanization of the working activities; increased level of workers’ proficiency required by the labour market; all these factors seem to have put into crisis the traditional legal parameters of qualification of work, challenging the dogmatic categories of subordinate and autonomous work themselves.

The problem of qualification – between subordination and autonomy – of working relationships between increasingly disintegrated companies and their “collaborators” is certainly not new. Legal scholars and case law have long been addressing this issue with reference to relationships that can hardly be described in terms of the employee’s archetype, subject to the precise direction and penetrating control of a unique and clearly identifiable employer.

However, the legal problems risen by the technological and economic changes have always been looked at by an external perspective: the labour market has been analyzed by considering the different contractual models used by the economic subjects to exchange work and remuneration, from a point of view that has mainly stayed outside the boundaries of the employment relationship.

Nevertheless, the very same factors which are shaping the labour market, are influencing the employment relationship itself. Even “inside” the most regular and clearly subordinate employment contract, such factors are deeply changing the way employers and employees are executing their contractual relationship. Therefore, such phenomena raise the necessity to adjust the employment contract to the needs of organizational flexibility, for example with reference to the working time, but also and – I would say – before anything, with reference to the duties the employee is required to perform, the evaluation of such performance and the connection between the working activities and the employer’s organizational prerogatives recognized by the law.

In the current rich theoretical and media debate, the need to adopt an approach aimed at focusing also on the core of the employment relationship has not been left much space, given the growing vulgata that the overwhelming evolution of information technology would be destined to produce the overcoming of the very concept of subordination and stable work, which should instead give space to a work structurally detached from the organization of the enterprise.

Consistent with this key of interpretation, a substantial amount of literature - developed especially in the Anglo-Saxon world - has been produced on “on demand” work.

The first aim of this paper is to give evidence of the fact that subordination is not inconsistent with the changes that are deeply influencing our society and ways of living and work. Instead, it is my opinion that the employment contract was originally conceived and still is one of the most flexible legal tools among the regulations of contracts; a tool that has internalized the organizational flexibility as a feature of the employment relationship.

Under this view, reconsidering the employment contract and its relationship with the concept of organization and of performance might be one of the keys to look at the new forms of work as well.

In this a context, I believe that the Italian reform introduced by means of different pieces of legislation between 2015 and 2017 is a good example. The first choice of the Italian lawmaker was to re-centralize the classic model of employment by updating the regulatory framework, in order to adapt it to the transformation of the economic and productive context in which companies operate.

The Italian legal system reacted to the recent trends by introducing deep changes in the regulation of the subordinate employment contract, in order to allow for the complete development of the permanent employment relationship beyond the organization model of the fordist type enterprise, enabling employers’ to unilaterally adjust the contract’s object to the variable business needs and enabling employees to work ordinarily outside the company’s premises and the pre-defined working hours, thus also regardless of the time made available to the entrepreneur.

In particular, the most relevant changes that reflected the need to increase organizational flexibility have been introduced by art. 3, decree n. 81/2015, on the regulation of the employers’ managerial prerogative to unilaterally change the duties for which the employee has been hired (jus variandi) and by articles 18-24, Law n. 81/2017, on the “smart working”.

Both normative interventions enlighten the basic assumption that organizational flexibility is no longer inconsistent with the regular standard subordinate employment contract.

The organizational needs enter the contract which becomes changeable under the conditions no longer set by the law but rather by collective bargaining agreements or by the parties themselves.

In such renewed legal context, subordination continues to be the answer to the need of regulation of the working relationship, even in a market that might be rapidly evolving and expanding outside national or continental boundaries, but still reflects a capitalistic system where capital itself and labour belong to different subjects that meet in a free market.

Suggested Citation

Gramano, Elena, Working Performance and Organisational Flexibility: At the Core of the Employment Contract (February 5, 2018). Available at SSRN: https://ssrn.com/abstract=3118216 or http://dx.doi.org/10.2139/ssrn.3118216

Elena Gramano (Contact Author)

Bocconi Legal Department ( email )

Via Roentgen, 1
Milan, Milano 20136
Italy

Bocconi University School of Law ( email )

Italy

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