LA DISCIPLINA "LAVORISTICA" DELL'APPALTO: VERSO UNA FLESSIBILIZZAZIONE DEL CONCETTO DI DATORE DI LAVORO?
Tesi di Dottorato
Data di Pubblicazione:
2010
Citazione:
LA DISCIPLINA "LAVORISTICA" DELL'APPALTO: VERSO UNA FLESSIBILIZZAZIONE DEL CONCETTO DI DATORE DI LAVORO? / D. Vitale ; tutor: Olivia Bonardi; coordinatore: Lorenzo Bordogna. Università degli Studi di Milano, 2010 Nov 25. 22. ciclo, Anno Accademico 2009. [10.13130/vitale-domenico_phd2010-11-25].
Abstract:
Contract and labour law: towards a more flexile concept of employer?
The contract within the sphere of the labour law seems to rediscover a “second youth” , lend itself to act as from “pole of attraction” regarding most important and debated profiles of surveying of the labour law doctrine.
If the contract, from the point of view of its “pathological” use, captured the attentions of theoretical and practical operators of labour law, above all regarding the issue of the entrepreneurial removal from the so called “garantismo individuale e collettivo” through the phenomenon of the illegal hiring, on the physiological side the institute in question is led back, in a generally residual dimension, the within of the widest phenomenon of the outsourcing.
The intervention of the legislator in matter, always increasing and more detailed regarding the past, reproposes, however in partially new terms, the problematic, particularly “felt” in years seventy of the past century, of the protection, legislative and contractual, of the labour in “small” enterprise.
The relative criticalities to the anchorage of the protection to a dimensional requirement, any it is, united to those relative ones to the uncertainty and to the caducity of the “borders” of the enterprise of XXI the century, placed in a perspective, by now, not more exclusively national, make to meet towards the labour law discipline of the contract an interesting series of interpretative and reconstructive issues, a lot on the level of qualifying and protective profile, than on that, to “regulatory” one.
These are, as mentioned, profiles that are interlaced and “crossed” among them, which are not compartmentalized, within a dimension that is also European and international.
The qualifying profile, in fact, proposes, next and beyond the distinction between public and private contract, the most traditional e controversial profile of the distinction between contract, temporary work and illegal hiring, on one side, and transfer of undertaking and/or a its business unit and contract (above all contract of services), from the other.
The protective profile in strict sense finds a progressive development and “updating” of not unknown institutes and instruments to the labour law discipline, like the so called social clause of fair treatment, or in the public contracts or in those private ones.
At European level, the crucial theme of labour protection concerning the posting of workers in the framework of the provision of services is regulated, mostly, by the Directive CE 96/71, which tries to link social and economic-competitive considerations in a context of mobility of labour and services within the European market.
The attempt of linking the foretold aspects seems to be the central fulcrum of the ulterior characterizing profile of the labour law discipline of the contract and that I have characterized like regulative profile.
With regard to, and for a first example, it is analyzed, on one side, technique of the jointly legal responsibility, which redistributes the employer “responsibilities” with reference to the economic and normative treatments to guarantee to the interested workers within the relationships of contractual integration arising from the outsourcing processes, and, from the other, trade-union control of the phenomena of outsourcing.
The embryonic regulative profile shows, among other things, the emerging of new institutional and socio-economic actors (like authorities, observatories, but also not governmental organizations, consumer and environmental associations), and instruments (like global framework agreements, codes of conduct, but also the, so called, indici di congruità), that prelude to incipient and
Tipologia IRIS:
Tesi di dottorato
Elenco autori:
D. Vitale
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