FOCUS □ PRECARIOUS,INFORMAL AND MIGRANT WORKERS Labour law and outsourcing Understanding how to respondto outsourcingand the growthof precariousforms ofemploymentis a challenge for Brazilianlabour law and forthe unions MAGDA BARROS BIAVASCHI isaformer labour court judge, doctor in social labour economy atthe University of Campinas, and researcher at the Centre for Studies in Trade Unionism and Labour Economics Labour unbridled foritsemergence Law capitalism. is an were obstacle The ripe material to back free in conditions transit the19th of Labour unbridled capitalism. Thematerial conditions foritsemergence wereripebackinthe19th Century inEuropewhencapitalism completed its formation cycleand capitalists rejected anyregulation .In a societyfoundedon a self-regulated market, capitalcelebrated itsorgies and 'freedom' reinvented inequality. In recent decades,severalsortsofinequalities areworsenedand redefined undertheactionof unrestricted capitalism. In ordertofulfill a tough programme offiscal adjustment and primary surplus , worsened by high interestrates, the Brazilianeconomy stagnated.Low economic growthin the 1980s and 1990s had negative impacts onpublicsocialpolicies, causing damage tothosewho mostneededthem. Undertherhythm ofpromises toreduceunemploymentand improve competitiveness, the result was fiercer competition, increasing asymmetry , and insecurity. Even thoughdata shows somegrowth intheeconomyand moreformalisationofworkers from 2005-9 there remain problemsthat havenotbeenovercome. Thejustice of markets, observedLuizGonzagaBelluzzo,is not distributive andtherights bornoutofcommercial relations acknowledge no fundamental principles other thanformal equality betweenproducers of goods: a situation wherethestrongest celebrate their orgies. Labour Law: a reactionagainst liberalorder The Industrial Revolution changedsubstantially thematerial conditions oflifein society. Homebasedworkshops gavewaytomills andfactories. On theone sideworkers weredeprived oftheir condition as producers and wereno longerable to own themeansofproduction: workers were forcedto become wage workers. On theother side,employers, as ownersofthemeansofproduction , would hirelabour,provideequipment, superviseits use, tradethe end product,pay wagesand makeprofits. The material conditions were ripe forthe birthof labour law, which wouldcomelater. A new modeofproduction brought new conflicts and undeniablesocial problems.A brutal inequality constituted capital-labour relations. But whilethosecircumstances increased exploitation, a homogeneous working classwas built. Workers andtheir organisations reacted. The liberalorderwas gradually undermined. Undera falseharmony, struggles and tensions endedup in twogreatworldwars.The first, an unprecedented violent warbetweenworldpowers ,started in 1914,followedby timesof high economic instabilityending in the Great Depression. Thecrises generated alloveran antiliberalresponse .Labourlaw is partofthiscomplexity . The historical, social,and politicalconditions for the birthof labour law were ready. Its autonomouscharacter was not acknowledged roughly untilthe end of FirstWorldWar.The International Labour Organisation, which emergedwiththe Treatyof Versailles in 1919, was a landmark asserting theroleofsociallaw. Withhumandignity as the starting pointand workers'humanconditionsat the core of its objectives, theILO stoodoutbybringing together thehuman,personalelementand thesocial, collective one,against thetideofa liberalism that did not accountforsocial issues. New labour laws introducedextra-market mechanisms for compensating inequalities, and consolidated the principle ofprotection. Perhapsno other branch oflawhassuchfeatures. Eventhough labourlaw has had sucha genesis,different countries have quite unique specificcircumstances thathave influenced thedevelopment oftheir own labour laws. In Brazil,the systematic construction of labourlaw tookplace after 1930. The Vargas Era Theabolition ofslavery bytheAureaActof1888 freed thecountry ofitsinconveniences, butblack peoplewereleft totheir ownfate. Manyformerslavesremained on theproperties. Others would wanderand work here and there.Othersyet were marginalised in cities.After abolition, the social needs forlabour protection intensified. Nevertheless, material conditions forthebirth of sociallawwouldonlybe ripeafter 1930as industrialisation process. Vargas tookpowerin 1930.He wouldstruggle to overcomethecharacteristics thatmarkedthe country's economic,social, and politicalstructure :the remainders of slavery, patriarchy and monoculture inherited fromcolonialtimes;an essentially agrarian society; an economy subordinatedto a primary exporting model;sparseand unorganised urbanworkers;and non-universal and non-secret suffrage, withno femaleparticipation .Theproject was toindustrialise thecountry and turn itintoa modern nation. Brazil was essentiallyagrarian.During the 1920s, agricultural productionrepresented an averageof58percent oftheGDP whilethemanufacturing industry was only 23 percent.A recently emerged urbanproletariat hada number ofdemandsbutnottheorganic strength to triggera processof effective actualisation ofsocial protection rules.Thematerial conditions for their politicalstruggles was not the same as thatin 19th-century England,hence the importance of theStatetofoster actualisation. From1930to 1943therewas a strong process of institutionalisation of workers'social rights. Brazilwas the4thcountry in theWestern hemisphere to guaranteethe femalevote. Women wereable toworkwithout permission from their husbands. Statemechanisms wereputinplaceto inspectand enforcethose rules(namely, Joint Committees, ConciliationCouncils,Inspection INTERNATIONAL union rights Page 18 Volume 16Issue 3 2009 Departments, and the industrial courtsof the Labour Justice) and norms on workers' organisationwereestablished . In 1946,theLabour Justice, whichhad been regulatedin 1939 and establishedin 1941,was integrated intotheJudiciary. Thisprocessculminated in 1988,withthenew FederalConstitution. Infact the20thCentury is marked bytheintroduction of several major Constitutions. The Constitutions of Mexico [1917]and of Weimar Germany [19191systematised the global frameworkof social rights, opposingliberalconceptionsabouttheroleoftheState . Theyinfluenced manylegalorders, including...
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