DOES LABOUR LAW ACTUALLY PRODUCE EQUALITY AMONG WORKERS?
Report to the International Seminar on The Effectiveness of Social Law: Under What Conditions? Bordeaux, 14th July 2005.
Bordeaux, Relazione, 14 luglio 2005
Pubblicato in (2006) 48 Managerial Law pp. 258 - 274.
The paper briefly reviews the most important economic models from which arguments can be drawn in support of (or against) the coherence between labour law aims and effects, particularly focusing on the principal/agent model, which considers the work contract as partially functioning as a sort of insurance policy aimed to guarantee a certain degree of equality among workers notwithstanding their different ability and luck. The paper then assumes the traditional labour law commitment to building equality among workers as a test-bench of the labour law effectiveness. It then proposes a crucial test for the equalization principle's practical functioning: when is it fair to dismiss an inefficient worker? The paper analyses the current mechanism of judicial application of just cause for dismissal, showing how, in its Italian version, it actually causes the most rigid courts’ orientation – instead of the average one, or the median one – to be assumed by employers and employees as a benchmark for their behaviour in case of litigation.
1. The protective rule’s reasons for existence and its practical effects.
2. An interesting test-bench of labour law effectiveness: the commitment to building equality among workers. The employment contract as an insurance policy.
3. Equality vs. parity of treatment. The commensuration principle and the question of the incentive for individual effort. The possible paradoxical effects of antidiscrimination rules.
4. A crucial test for the equalization principle: is it fair to dismiss an inefficient worker?
5. A mechanism that actually makes the most rigid courts’ orientation to prevail.
6. Protection against dismissal as a factor of inequality.
7. The crisis of the old egalitarian mechanism.
8. A mechanism actually hostile to the less fortunate workers.
9. How a “Rawlsian” option can be pursued in the western market system of the XXI century.