SOCIAL RIGHT
LexInter | June 3, 2011 | 0 Comments

SOCIAL RIGHT

Employment law covers the labor law and the right to social security . Social norms are constituted by conventional norms and legal norms. Essential contributions to the definition of labor standards result from the case law of the Court of Cassation, the Council of State as well as that of the Constitutional Council and the European Court of Human Rights.

The labor law codified in the Labor Code , which has been recoded in the new Labor Code , does not apply (apart in particular from the provisions concerning occupational safety and health) to all workers , but mainly to employees. 

The employee is bound to the employer by the employment contract, of which the Labor Code does not give a definition. The employee is defined by the case law on the employment contract as a worker who has placed himself in a situation of subordination with an employer, who has the power to give orders and directives . This power, which is linked to the management requirements of the company, is both the consequence of the existence of an employment contract and a criterion for qualifying the employment relationship as being an employment contract.

Craftsmen, traders, liberal professions and other self-employed workers, such as civil servants who enjoy public law status, are not affected by labor law.

Labor law developed with legislative interventionism to govern labor relations in industrial society at the start of the 20th century. It was a question of defining the relations between the employer’s power and a collective labor force, in a society marked by heavy and Taylorized industry where the means of production were financed by capital. The subordination was a criterion of clear application, it was a question of protecting the subordinate workers against the normative power of the employer within the framework of the bond which constituted the employment relationship.

The labor code is thus centered around the definition of conventional regulations and the legal regulations of labor relations. The philosophy of labor law has been marked by workerism, the strength of the unions, the “class struggle” and the ideological opposition between workers and employers.

The world of work has its police, the labor inspectorate responsible for monitoring the application of labor law, its elected justice, the industrial tribunals , natural judge of labor disputes, elected representatives, representatives of the staff, electoral forces, unions .

Labor law is based on collective concepts such as the working community , founded on belonging to a community united by common problems and concerns. The concept of economic and social unity is likewise a search for coherent working entities bringing together working conditions and contents with solidarity between staff.

The abolition of the administrative authorization for dismissal, apart from the dismissals of protected employees, marked a turning point in the spirit of labor law. Legal intervention, which was the object of mistrust on the part of the unions, has in fact become an instrument of employee protection in an individualized framework.

From an industrial society, favoring the manufacturing industry, France is moving after tertiary development to a service company. The tertiary sector has developed considerably and even in the industrial sector an essential part of the employees are no longer in production, it is industry without factories. Technological evolution has put an end to Taylorism, the development of “personal” computing has called into question the systematic centralization of information and its processing, electronic messaging is modifying not only modes of communication, but also circuits. hierarchical, it is the network economy.

New forms of work are developing, using the nomadic forms of work that laptops allow, whether they are computers or telephones or “personal assistants” with telework and nomadic work. Portability shatters the framework of the business site. The development of the Internet and intranet poses the problem of privacy at work . Information technology and the Internet give birth to the social law of new technologies .

The 1980s saw the reconquest of a company’s legitimacy, and the recognition of its role as a source of jobs. The fall of the Berlin Wall marked the end of the ideological class struggle. “Human capital” is not contradictory to the employees of a service company.

Globalization, with offshoring and remote teleworking , will shift unions from internationalism to the defense of local jobs.

The structuring of the company, with the methods of outsourcing, solidarity within the company, with home work, are evolving. The forms of employment relationship are diversifying. Alternatives to the employment contract, atypical forms of this contract and deviations from the model of the open-ended contract are developing, in part to avoid it.

We are thus witnessing the tendency to individualize the employment relationship which marks the new Labor Code and an increase in the contractual aspect. Instead of the collective whole, we recognize the existence of an individual aspect to the employment relationship, a domain of the autonomy of contractual will. The individualism of young people, the desire for neutrality with regard to atypicalism, encourage this individualization.

It is in the context of the realization of both the complexity and the obsolete nature of many provisions of the Labor Code and of the new philosophy of labor law that a new Labor Code is being drawn up, with an organization that reflects this development by separating individual labor relations and collective labor relations.

Social Security, codified in the Social Security Code , has an area of ​​coverage that is broader than employees, and developments seek to make coverage universal. The fact remains that the salaried scheme is a particularly important scheme, making the definition of salaried work a common problem in labor law and social security law. Moreover, since security is a common domain of the social protection system and labor protection, with the concept of security at work, an interaction characterizes the evolution of labor law and social security law. Safety at work is ensured by the combined play of the obligation of safety result that case law places at the expense of the employer on the basis of the execution of the employment contract, the provisions of the labor code relating to security and the provisions of social security relating to protection against industrial accidents and professional illnesses

The convergent evolution of contract law to include this obligation of security and social security, with the notion of inexcusable fault resulting from the violation of this obligation of security of result of both a contractual and legal nature under the terms of the provisions of the Code of work, places social protection within the framework of responsibility. As responsibility is increasingly based on risk and its mutualisation, social security law is placed in a framework of responsibility, reflected in the transfer of social security litigation from the Social Chamber of the Court of Cassation to the Second Civil Chamber. What has been described as the trivialization of inexcusable fault is in fact the return of social protection under the law of liability.

Social law is developing on the notion of work community which is the basis of the rules for calculating staff numbers during professional elections .

 

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