The Declaration of Philadelphia. WP CSDLE “Massimo D’Antona”.INT – 143/2018

The general conference of the International Labour Organization, in its twenty-sixth session on May 10th 1944, adopted unanimously the Declaration of Philadelphia, where the aims inspiring the actions of the Organization and the Principles to which the participating States should aspire are set. In actual fact, as we are going to see, the Declaration is a lot more than a text on the ILO’s objectives and directive Principles, because it represents the first International Declaration of rights with international vocation, “applicable to all people everywhere”. This document, fundamental charter of reference for the ILO and for all the systems of labour law, comes to life in a social-economic context – that of mid 20th century – very different from the liberal one that has seen, with the Peace of Versailles, the ILO birth. The social, political and economic reflection of the times, after stating as central the individual’s freedom from the State, on the other hand questions itself on how the State may guarantee – in a positive inclination – the social rights that had been dealt with already since the beginning of the century. The Declaration might be intended as a catalogue of the promises made by the leaders of the Allied Forces during the Second World War, giving life to the Principles contained in the 1941 Atlantic Charter, signed by Winston Churchill and Franklin Delano Roosevelt, according to which the post-war Government policies had to aim to “securing for all (countries and people), improved labour standards, economic advancement and social security... (as well as) freedom from fear or want”. We may not consider – rather reductively – in the Declaration of Philadelphia “first and foremost a sort of pledge of loyalty to the popular forces in return for the sacrifices they had made during the war”, but it may be considered as a pioneer text, intended to make social justice “the cornerstone of the international juridical order”. Therefore, a text encompassing the need for security, typical of economic liberalism, which guaranteed the reproduction of democratic freedom and, at the same time, social rights. As a matter of fact, according to the New Deal doctrines, the free market could not have maintained the promises for individual freedom, without protecting the people from insecurity, with a new Bill of Rights, to be based on social rights, rather than political freedoms. The value of the Declaration is even more relevant if we consider that the text has been adopted in a period where the universalism, the legitimateness and even the survival of the ILO were being brought into question, following the hard international crisis after the Second World War. So, under this profile, the Declaration expresses the attempt of the ILO to get a relevant place within the forthcoming Bretton Woods Institutions, which would define the general framework of international governance of the political and economic dynamics of the post-war period. In order to define the mission of a renewed International Organization of Labour, the Declaration of Philadelphia has adopted - as we will see in detail, later, within the analysis of the content of the Declaration – new, wider and more ambitious aims compared to those characterizing the actions of the Organization between the two World Wars, giving to the ILO a new lease of life and posing the basis to strengthen its role in the project to re-plan the international architecture in the post-war period

La “soggettivazione regolativa” nel diritto del lavoro = The "regulatory subjectification" in labor law. WP C.S.D.L.E. “Massimo D’Antona”.IT – 365/2018

The essay analyzes the subject of individual autonomy in the employment relationship, with particular reference to the agreements to modify the subordinate worker's duties and to the agreements on the powers of the employer in "agile work". On the basis of a series of suggestions, including the capabilities approach, the idea of "regulatory subjectification" is proposed as a new way to increase freedom and the rights of the worker, even in the context of a relationship that remains structurally asymmetric

Sustainability, Social Rights and International Trade: The TTIP

This article analyses the prospects opened up in the social field by the negotiation on the Transatlantic Trade and Investment Partnership (TTIP) between the European Union (EU) and United States (US), with reference to labour law and social sustainability. Trade integration between the two partners should lead to an inter-normative approach, incorporating Fundamental Social Rights into the Treaty. The author proposes the inclusion of a chapter dedicated to compliance with labour rights, containing a social clause inspired by Article 20 of the General Agreement on Tariffs and Trade (GATT), in accordance with the negotiation directives. The social clause should include references to the ILO Core Labour Standards, individual and collective labour rights, Corporate Social Responsibility (CSR), and the regulation in a social perspective of Foreign Direct Investment (FDI)

Workers' Participation in the Firm: Between Social Freedom and Non-Domination. WP CSDLE “Massimo D’Antona”.INT – 149/2019

Usually, board-level worker representation is a topic discussed in the context of legal reflection on the governance structure of companies, and, therefore, more from the point of view of corporate law than of labour law (so, for example, in Denmark, Germany, and in the EU’s legal framework). Without in any way willing to part from this traditional perspective, in this chapter I would like to develop some arguments in favour of the participation from a perspective that privileges the individual right of workers, by freely developing certain elements of reflection drawn from moral philosophy, and in particular from the idea of “social freedom” as elaborated by Axel Honnet1, and of “non-domination” as theorized in the neo-republican thought by Philip Pettit2, to which is added the important contribution of Amartya Sen on the “capabilities” as an expression of the freedom of people in acquiring important functioning. I believe that these currents of philosophical-moral thought can usefully be mobilized in a convergent perspective, in which board-level worker participation represents the outcome of a process of revisiting the assumptions of traditional labour law, so that the employment relationship is the expression of a structure of domination (the capitalist firm) which necessarily limits the freedom (negative and positive) of the worker, and which identifies in the conflict between capital and labour the only horizon in which the values of the respective (social and economic)spheres find some precarious and transitory moments of composition. I believe that by adopting this traditional perspective - which is still very widespread in the doctrine of labour law - the possibility of promoting the participation of workers in the management of the company is greatly limited, even on the political-institutional level, whether it is considered as the natural and intrinsic outcome of social freedom achieved in the main spheres of human life (described in Hegel’s philosophy of law: the affective relationships, the market and the democratic state), whether we consider it an extrinsic legal construction with respect to a capitalist dynamics governed by a purely individualistic rationality based on exploitation, according to Marxian reading

The legal and jurisprudential evolution of the notion of employee

The essay analyses the concept of employed worker in the light of the expansive trend of labour law. Two perspectives are investigated. The first concerns the revisiting of the concept of employed worker through the interpretation of jurisprudence. Comparative analysis demonstrates a tendency, not univocal but prevalent, of jurisprudence to broaden the notion of subordinate work, which manifests itself through purposive interpretation techniques. The other perspective is that of the creation of intermediate categories, such as that of ‘worker’ in the UK or that of ‘parasubordinato’ work in Italy, or even the notion of ‘economically dependent selfemployment’ (Spain, Germany), to which selectively apply some protections of subordinate work. The current challenge of labour law is therefore to be able to respond to changes in the production reality, exemplified by work through a digital platform, to provide adequate protection for new forms of work and new ways in which subordination is expressed