The adaptation or the abandonment of subordination as a key element of labour law in the face of new forms of employment. A global debate from the Spanish point of view

Abstract

The legal, jurisprudential, and academic debate around subordination as a key element of the borderline between dependent and self-employed work has been present practically since the consolidation and expansion of labour law, at least in those countries where labour legislation has played a central role in the design of labour relations. However, this debate has intensified in recent times, with theses emerging about the decline and possible disappearance of subordination as a legal reference. The latter derives from multiple factors, political, economic and social, but above all it is due to technological transformations, derived from the implementation of digitalisation and information and communication technologies, together with organisational changes in companies, essentially as a result of the generalisation of formulas for productive decentralisation and the intensification of distance work. This work aims to tackle this issue, from the perspective that the determining causes are of a global and transnational nature, but with notable national conditioning factors which prevent generalisations and, therefore, it is carried out from the perspective of the Spanish system of labour relations. The present work advocates good health in our legal framework of the criterion of subordination. This leads to the rejection of the positions of those who predict that it will be overcome and replaced by the criterion of economic dependence. However, it is understood that the survival of subordination must be carried out based on four premises of essential adaptation: 1) the possibility of establishing common basic rights for all personal work done for another, based on a new understanding of constitutionally guaranteed labour rights, to extend them beyond subordinate work; 2) the construction of a flexible concept of subordination, which includes broad forms of hetero-organisation; 3) the diversification of regulations within subordinate labour with different levels of flexibility through a correct understanding of the so-called “special labour relations” and, above all, of the “contractual modalities” with a specific regime such as distance work; 4) the efficient development of the protection of the weak contracting party in the field of economically dependent self-employment without breaking the mould of its clear separation from subordinate labour.