Reading the proposals of the two candidates who won the first round of the presidential election, we see that the issue of work is not clear in the programs. This issue is addressed under the heading “get full employment and make a better living from work” with outgoing President Emmanuel Macron and “ensure strong growth of our economy in the service of employment, purchasing power and the common good. candidate, Marine Le Pen.
To achieve this, Emmanuel Macron opts for the establishment of an active solidarity income (RSA) conditioned on an activity to promote integration, the transformation of Pôle emploi “to increase efficiency”, the postponement of retirement legal to 65 or 64 to promote the employment of the elderly, the simplification and deconcentration of social dialogue, and a simplification of the Labor Code.
For Marine Le Pen: reorienting the economy towards the principle of localism and economic patriotism, a “need for work”, maintaining the retirement age at 60 to promote young people’s access to employment, reform of education and training, facilitating access to employment by combating “the importation of hard-working workers” competing with French workers, reforming displaced labor.
Despite these differences in approach, less government on the one hand and national preference on the other, neither program deeply questions the existing situation and the integration policies that have prevailed in recent years, especially in the promotion of self-employment.
Created in 2009, the status of self-employed, which is easy to obtain administratively, has been massively adopted. According to INSEE, “at the end of 2017, 928,000 microentrepreneurs they are economically active […]. They represent 33% of self-employment (figure 2), but this share varies greatly depending on the sector: it reaches 95% in home delivery and urban courier activities ”.
This boom has especially accompanied the development of online platforms, most of the workforce is self-employed, which has led to the precariousness of these less protected workers in terms of rights. Thus, his average monthly salary is around 600 euros.
One of the perverse effects of returning to working life through self-employment is the creation of a “fictitious self-employed status”, most notably for example in March 2020 by the Court of Cassation of France in the case of a driver of self-employment. ‘Uber. . Self-employment has thus become a source of precariousness for workers, but also for insecurity for companies that may be doomed to reclassify the employment relationship as an indefinite contract.
To address this, a number of measures have been taken, including the recognition of the status of employee to a certain number of workers listed in the seventh part of the Labor Code.
There are other ways
However, for many years now, avenues have been explored that propose an alternative to this dichotomy between worker and self-employed, but without any specific translation at the moment. However, they have the merit of existing.
One of them would be to consider the implementation of a right to professional activity which, according to the lawyer Thérèse Aubert-Monpeyssen, “would have the effect of harmonizing the obligations that weigh on the companies that involve the workers, regardless of their legal status, this right would cover all workers without distinction of status, salaried or self-employed, as proposed by several other authors, including jurists Alain Supiot, Jacques Barthélémy and François Gaudu.
Workers will benefit from a common set of individual rights which would enshrine the main principles set out in the European Social Charter of 1996 and the Charter of Fundamental Rights of the European Union of 2000. In the first, there are specific measures on pay. working time, holidays, retirement, training, health, protection against job loss, youth work. In the second, less detailed, in Chapter IV entitled “Solidarity”, we find the fundamental principles of the fight against poverty, social exclusion, the protection of workers. Both list the conditions for decent work and dignity at work.
In statements to the research group of another labor code (GR-PACT), the labor law specialist Emmanuel Dockés evokes the intention “to extend the scope of the Labor Code to dependent but not subordinate workers, in order to integrate new forms of employment, although autonomous, in a situation of weakness, into labor law ”.
Another way would be to redefine the employment contract not only based on the subordination of the employee to the employer, but also, as mentioned by Olivier Leclerc, in whose economic dependence the International Labor Organization (ILO) it sets out the constituent elements: the periodic remuneration of the worker, the origin of his unique income and the absence of economic risk for him. In this way, being a worker would mean being subordinate, working for others, and being financially dependent on them.
By establishing precise criteria for determining the threshold of economic dependence that is taken into account, this could be a solution for the “gray area”, that of the economically dependent self-employed worker and the fictitious condition of self-employed worker.
Get inspired elsewhere in Europe
Many of our European neighbors, including Italy and Spain, have spent many years trying to find solutions to this situation with varying degrees of success. In Spain, the aforementioned objective is, while fighting for job creation, to protect these workers who, in accordance with the Spanish statute, Law 20/2007, of 11 July 2007, “carry out an activity economic or professional for profit, in a personal, direct, and preponderant way, for the benefit of a natural or legal person, called a client, on whom they depend financially ”.
How? Offering everyone a guarantee of remuneration, guarantees in case of illness, accident at work, pregnancy, a pension plan, a continuing education program, guarantees in working time, holidays, at the request of the worker and that at the justified request of the client with compensation in the absence of a motivated cause. The aim, according to the Spanish jurist Fernando Valdes dal-Re, is to remedy this new situation of economic dependence born of the “normalization” of self-employment in the processes of productive decentralization. “.
Based on known successes and failures, the modernization of the work could also be based on the report “Antonmattei-Sciberras” which, as early as 2008, had studied the protection to be granted to economically dependent workers and opted for the creation of a team comparable to that. in force in neighboring countries.
List a series of clues to identify the worker who belongs to the category of economically dependent self-employed: he carries out his activity alone, obtains at least 50% of his income from a single principal in the framework of a contractual relationship of more of two months, within a productive organization dependent on its client. It should be noted that if we provide security to the worker, we must not forget his corollary, that of the company.
The question then arises as to why, when the question of the alternative to wage labor has been studied for many years, when economic dependence is recognized and the purely contractual view of the employment contract transcends, there is no no attempt to do so. .
Perhaps it is also due to the rise in employment – the number of unemployed jobseekers falling for the first time since July 2012 below 3 million in mainland France – that no more structural reforms have been proposed in the world. work. But while Covid has been talking about the “next world,” isn’t it time to move on?
PerAssociate Professor of Labor Law, TBS Education.
The original version of this article was published in The Conversation.