Spain - The labor framework: between legislative chaos and demolition of the traditional labor relations model

There is very little room for doubt over the recent legislative chaos in which we have been moving recently. This is seen not only in the diffuse, complex and confusing legislation for the pandemic, in which we saw twenty amendments of a law in only one year of its term, but also in the subsequent legislation, with continual changes to significant components of labor relations, most often contained in not specifically labor legislation. All this creates a landscape which, without any exaggeration, may be described as chaotic.

We are faced with non-jurisdictional labor legislation, often the result of mere sudden ideas, in which there is no view of the whole picture or any long-term aspirations. With the aggravating factor that many of the latest rules do not come from legislative initiatives that have emerged from the Ministry of Labor, but instead from other ministerial departments, and that they are proposed in relation to the regulation of other matters. This breaks with the unified vision that labor law should have and which should always guide its reform, in addition to casting aside the negotiation process between employer and employee representatives and the participation of the necessary consultative bodies. In 2022 alone and so far in 2023, at least ten important legislative amendments have taken place of labor and employment matters, made in not specifically labor laws (both organic and ordinary laws and a royal decree). And there are a few bills in the works which will also establish rules having a direct impact on labor relations (the bills on the families law and on sustainable mobility). Added to this are the reforms made by specifically labor laws (as well as in the field of employment and social security), which amend certain components of labor relations without the necessary view of the whole picture and without any systematic consideration of the labor law system.

This is prompting a silent demolition process of the traditional framework for labor relations. Which I have no doubt has to be demolished, but with order, with a system and with a clear idea of what is to be built in its place. We would have to go to a completely new labor framework, rather than one built on tweaks or adjustments to the previous version. And this is an urgent task, because the issue is not that it may have to be asked whether to keep or destroy the current labor framework, with more or fewer adjustments and adaptations, but instead that the framework is being destroyed in giant steps, but without order or accord.     

The economic, social and technological changes we are experiencing make previous rules and regulations fast become obsolete (think about how, in the days of social media, instant communication on various channels and growing use of artificial intelligence, the Workers’ Statute continues to provide, as a channel of communication between worker representatives and the represented workers, a notice board!) and pose questions over a few paradigms on which labor law is based. Insisting on rules and regulations that still think the production system has not changed, which is the case with everything related to the recording and control of working time; approaching remote working through interventionist rules and regulations, which exude mistrust and always seem  
to be based on the belief that any change to the status quo and to the working environment hides new chances for employers to abuse their power; and still considering that every service provided by an independent contractor hides, in principle, a fraudulent situation which is purely an attempt to evade an employment contract, is moving on the basis of ideas unable to face up to reality.

Together with those changes, not properly understood or covered in the rules on labor relations, the destruction process is being fostered because recently those rules have been inspired by social questions, worthy of attention and protection, but falling outside the traditional core components of labor relations. Companies have a role of producing goods and services for the market, which they have to do as efficiently as possible, seeking to strike the right balance between the protection of workers’ rights, their workers’ professional situation, the defense of productivity, and a guarantee of financial benefit for the invested capital. The current legislation is making companies responsible for guaranteeing the correct distribution of roles within families, sustainable mobility, and the free development of individuals’ sexual orientation. A socially responsible employer has to be sensitive to all these issues, but their rules should not be attributed exclusively to labor relations.

Employers are increasingly having to take on the costs of social policies which, as such, should be socialized. Upon examination, a large part of the recent legislative changes are based on the work/life balance. And a few surveys find that work/life balance is becoming the main concern among workers. The bill for the families law intends to establish, for the first time, a clear subordination of work to workers’ personal life and family circumstances, through the “guarantee of a balance between working and personal life for adults responsible for bringing up children, by guaranteeing the adaptation of work to family circumstances”. 

All this carries an important change of paradigm in labor relations which requires a broader development and reflection process. We are witnessing a blossoming of rights which are only indirectly related to work and pose conflicts of interest (and not only between employers and workers, but also among the workers themselves). These are not legal conflicts and therefore have to be resolved in mediation and out-of-court processes. Employers are assuming costs which do not strictly belong to their production process, deriving instead from attending to general interests or shared values in society, and therefore these costs should be socialized.

This chaos is bad for employers and for the economy and holds back productivity along with the chance to develop labor relations adapted to the current time, being protective of workers’ rights but also attentive to employers’ organizational and production-related needs. The building of a new labor law and of new labor relations must be approached from the standpoint of drastically reducing legislative and regulatory intervention and with attribution of the fundamental regulatory role to collective bargaining. A far freer collective bargaining process (something that would require important changes to its regulatory framework), less conditioned by legislative constraints, could provide the right response to the requirements posed by regulating human work in the society in which we live, and which is changing rapidly.