TILBURG UNIVERSITY

Master Program:

International and European Labour Law

Master Thesis

EMPLOYMENT CONTRACTS AND FLEXICURITY

A Comparative Study: Colombia and the European Union

GEORGIOS VOIDONIKOLAS Student Number: 937456

Supervisors: Professor Roger Blanpain Professor Michelle Colucci

June 2010

EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

Table of Contents

List of Abbreviations ...... 5 INTRODUCTION ...... 6 CHAPTER 1. General Evolution of Employment Contract ...... 10 1.1. The Classic Concept of the Employment Contract ...... 11 1.1.1. Roots of the Employment Contract ...... 11 1.1.2. The Standard Employment Contract ...... 13 1.2. Development of Employment Contracts/Deviations of the Classic Concept ...... 15 1.2.1. Fixed-term contracts ...... 18 1.2.2. Part-time work ...... 21 1.2.3. Labour on Call ...... 23 1.2.4. Triangular relation. Putting workers at the disposal of the user...... 24 1.2.4.1. Temporary work agencies ...... 25 1.2.4.2. Leasing of workers in United States of America ...... 27 1.2.5. Telework ...... 28 1.3. Conclusion ...... 28 CHAPTER 2. Colombian Regulation of the Employment Contract. Act 50 of 1990...... 32 2.1. Latin-American Context ...... 33 2.2. Legal Genesis of Act 50 of 1990 in Colombia ...... 35 2.3. Fixed-term Contracts ...... 36 2.3.1. Case Law ...... 37 2.3.1.1. General Comments ...... 37 2.3.1.2. Judgments ...... 38 2.3.1.2.1. Johana Urquijo P. vs. Lácteos del Norte Ltda.- Primacy of the Reality.. 38 2.3.1.2.2. Alfonso Maro Leon vs. Art 46 CLC – Successive Contracts ...... 39 2.3.1.2.3. Luz Marina Zuluaga vs. Art 46 CLC – Equal Treatment ...... 41 2.2 Part-time Contracts ...... 42 2.3 Temporary Work Agencies ...... 43 2.3.2. Case Law ...... 45 2.3.2.1. General Comments ...... 45 2.3.2.2. Nohema Pinedo Ruiz vs. Art 177 Act 50 of 1990 – Equal Treatment .... 45

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

2.4. Tele-work. Act 1221 of 2008 ...... 46 CHAPTER 3. European Regulation of Employment Contracts ...... 49 3.1 Flexicurity ...... 49 3.2 Directive on Fixed-term Contracts ...... 51 3.2.1 The Personal Scope of the Directive ...... 52 3.2.2 Principle of Non-Discrimination ...... 52 3.2.3 Prevent Abuses ...... 53 3.2.4 Information and Employment Vacancies ...... 54 3.2.5 Case Law ...... 54 3.2.5.1 General Comments ...... 54 3.2.5.2 Judgments ...... 55 3.2.5.2.1 Konstantinos Adeneler and Others vs. The Greek public organization (Ellinikos Organismos Galaktos) – Successive Contracts ...... 55 3.2.5.2.2 Mangold Werner vs. Rudiger Helm – Equal Treatment ...... 57 3.2.5.2.3 Impact vs. Minister for Agriculture and Food – Equal Treatment ...... 58 3.3 Directive Part-Time Work ...... 59 3.3.1 Principle of Non-Discrimination ...... 61 3.3.2 Opportunities for part-time workers ...... 61 3.3.3 Case Law ...... 61 3.3.3.1 General Comments ...... 62 3.3.3.2 Judgments ...... 62 3.3.3.2.1 Nicole Wippel and Peek & others vs. Cloppenburg – Equal Treatment . 62 3.3.3.2.2 Michaeler Case – Removal of Obstacles on Part-Time Work...... 63 3.4 Temporary Agency Work Directive ...... 64 3.4.1 Principle of Non-Discrimination ...... 65 3.4.2 Restrictions and prohibitions of temporal work ...... 66 3.4.3 Access to employment, Collective Facilities and Vocational Training ...... 66 3.4.4 Representation of Temporal Agency Workers ...... 67 3.4.5 Other Characteristics ...... 67 3.5 Framework Agreement on Telework ...... 67 CHAPTER 4. Comparative Analysis ...... 72

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

4.1. General Overview ...... 72 4.2. Fixed-term Contracts ...... 73 4.3. Part-time Contracts ...... 75 4.4. Temporary Work Agencies ...... 76 4.5. Tele-work ...... 78 4.6. Chart and Conclusions ...... 80 CONCLUSIONS ...... 82 ANNEXES ...... 86 Annex 1 Fixed-Term Contracts Comparison Table...... 86 Annex 2 Part-Time Contracts Comparison Table ...... 87 Annex 3 Temporary Work Agencies Comparison Table ...... 88 Annex 4 Tele-work Comparison Table ...... 90 BIBLIOGRAPHY...... 92

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

List of Abbreviations

Art Article EU European Union TWA Temporary Work Agencies PEO Professional Employer Organization FTC Fixed-Term Contracts Directive ECJ European Court of Justice PTW Part-time Work Agreement TAW Temporal Agency Work Directive CLC Colombian Labour Code ILO International Labour Organization

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

INTRODUCTION

One of the most important questions during the last century that remains unresolved between the intellectual community is the correct balance that labour law can provide between security and flexibility. Globalization, international economic integration, new technological advances and sociological circumstances are placing countries in new conditions, and this dynamic environment requires quick adaptation. Employment contracts are a fundamental piece in this dilemma where the principles of stability to protect workers and flexibility to allow employers to use non-rigid labour relations are in tension. This mixture, which can be seen as being in opposition, is recognized as a win-win reform agenda that was included in the European Union‟s framework (Lisbon Agenda adopted in 2000) and also in the most important labour law reform of Colombia during the last century (Act 50 of 1990).

Different answers may try to clarify the real influence of economic progress, evolution of society and technological advances in the different employment contracts, but it is clear, and no academic can deny it, that particular circumstances in time will always have a direct impact on the social order of an organized community. Specific conditions through history forced law to provide solutions by means of legal rules that aim to formalize reality. Trade and industry, for example, influenced legal frameworks including labour matters as they were essential for the development and stabilization of economic relations. The necessity of an open market model required minimum labour standards in the early years of the twentieth century to govern relations between employers and workers. Examples of these minimum labour standards are found in the principle of “equal pay for equal work” or in employment contracts1.

The research question that will guide the thesis will be the following:

1 In this paper no distinction is made between the terms employment contract, work contract, labour contract and labour agreement. The terms are used as overall expressions in order to facilitate readability of the text.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

Is the evolution of the employment contract a response to the tension between rigidity and flexibility?

The above question will be answered positively, narrowing the investigation to a comparative analysis. The European framework will be examined and compared with the Colombian one in order to note similarities and differences. The following sub-questions will be answered as part of the investigation:

 How does Europe respond to this dilemma and how (if at all) is the balance achieved?

 Does Colombia adjust its labour legislation concerning employment contracts on the basis of the same dilemma?

 Which regulation focused more on rigidity and which one more on flexibility for the implementation of flexible employment contracts?

To answer the questions, this thesis first aims to describe the evolution of labour contracts from the classic concept (full time, male for indefinite period in a single place) to its developments. New technologies, sociological changes and economical circumstances challenged the classic concept of employment contract. The birth of flexible labour contracts more “adaptable” to the circumstances were a response to economic efficiency. The pendulum swings from rigidity to flexibility, giving rise to the so-called deviations2 of the employment contract.

The contract of employment has been aptly called „a remarkable social and economic institution, as important as the invention of limited liability for

2 Some scholars (e.g. Bruno Veneziani, Professor of labour law and comparative trade unions law at the University of Bari) consider this to be deviations from the classical concept of the labour contract, while for other authorities (e.g. Professor Roger Blanpain, professor of comparative labour law and globalization and international labour law at Tilburg University) the employment contract has developed in different forms.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union companies‟3 because it marked the beginning of labour law understood as minimum standards of legal protection that workers were entitled to when performing tasks. Exploitation and the conditions of misery that employees suffered during the last century created pressure on the law to once again provide an answer to pursue social justice and human balance by creating labour standards.

The second chapter of this thesis studies the Colombian regulation that tried to provide a balance between rigidity and flexibility. Flexible contracts were included in the major Colombian labour reform in the year 1990. Special attention is given to the effect of the Colombian regulation of 1990 on the development and adaptation of the employment contract.

The third chapter studies the implementation of flexible contracts in the European Union –EU-. In the second and third chapters, important case law is included to provide a better understanding of the attitude of the Courts to flexible employment contracts and the balance they strike between flexibility and rigidity.

In the fourth chapter, a comparative study shows the main differences between processes of labour flexibilization in Colombia and the EU, and the effect that each of them has had on labour contracts. The comparative analysis furthermore contrasts the EU principles of equal treatment and the prevention of abuses with Colombia‟s more flexible legal framework. Finally, the conclusions aim to answer the research question and the main points of this thesis.

The methodology used in the preparation of this document is the following:

1. An historical approach presenting the genesis and evolution of the employment contract, studying written records of history and law.

3 Marsden, D. (1999) ‘Breaking the link: has the employment contract had its day?’ Centrepiece, winter: 20- 23.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

2. In the second and third chapters, the approach of employment contracts will present the current characteristics of the labour framework. 3. A comparison as a method of study follows in the fourth chapter. Special attention is given to comparing the functions, rather than the institutions, of the different frameworks on labour contracts. One of the main reasons for the author to contrast these two legal systems is to gain a better insight into his “own national law” (Colombian) to facilitate and evaluate possible proposals for change to improve the system.

The thesis does not intend to make an in-depth study of flexicurity or to propose possible ways in which the balance can be improved; instead, the main objective of the present document is to present a study on the development of the employment contract and the way that regulations aim to find a successful equilibrium (if at all) between rigidity and flexibility. The continuing vitality of the concept of the contract of employment, and its capacity for adaptation in a rapidly changing environment4, is the basis of the analysis.

The study shows how labour contracts in an age of flexicurity5 are deeply modified from the classic concept, presenting a variety of models as a response to social and economical needs; “changes have occurred that, by general consent, are characterized by flexible labour relations and flexible organization of production (…) strategies of product diversification, flexible forms of employment, inexorable competition, and the collapse of economic borders and obstacles between states.6”

4 Simon Deakin, (2001) ‘The Contract Of Employment: A Study In Legal Evolution’ ESRC Centre for Business Research, University of Cambridge, Working Paper No. 203. P.34. 5 Even though the ILO has shelved the flexicurity model recently, (During the ILO study trip to Geneva in March 2010, authorities of the organization exposed the situation), it is a concept that influenced the legal frameworks of Europe and Latin-American countries. 6 Manos Spyridakis, (2006), The Political Economy of Labor Relations in the Context of Greek Shipbuilding: An Ethnographic Account, History and Anthropology,Vol. 17, No. 2, 153–170

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

CHAPTER 1. General Evolution of Employment Contract

An analysis of labour relations and employment contracts is of significant importance in the current economic crisis, especially in the context of globalization and the intensification of competition between countries and social actors. “Kahn- Freund‟s description of the contract of employment as the „cornerstone‟ of the modern labour law system captured precisely its dual nature: on the one hand, it underpinned the common law of „managerial prerogative‟ through the open-ended duty of obedience, while simultaneously supporting the edifice of social legislation aimed at providing the individual with protection against the economic risks.”7

A labour contract can be understood as one of the victories of workers in the last century where finally some minimum standards were stipulated in a document that was similar in formalities and material guarantees for a vast number of workers. It can be understood as the bridge between the welfare state and the founding business. Before the world wars, labour contracts were regulated according to civil or common law that made job security practically nonexistent. The liberal doctrine of equality of parties stipulating the contract in which freedom of consent was a the supreme fundamental principle did not take into account the obvious divergence between the employers (usually rich and powerful landowners) and workers (underprivileged individuals that depend on their job for their subsistence and that of their families, and in some cases also fighting against starvation). The position of the workers was self-evidently weaker than it is nowadays (no minimum rights of whatsoever) generating mistreatment, misery, and exploitation. In this stage, labour contracts could be described as flexible in the extreme as work was considered a commodity and no protective measures existed to safeguard minimum security to workers.

Employment contracts started to become more rigid after the wars, recognizing minimum standards that gave workers more security in labour relations. In the

7 Kahn-Freund, O. (1967).

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union framework of labour law, the contract of employment is a tool and a social parameter to apply individual and collective labour law. Fundamental rights were also gradually introduced, beginning in the 60‟s (in England, employment contracts include primary human rights such as the prohibition of racial discrimination, equal pay for woman and men and the prohibition of other forms of gender discrimination).8 “What is above all clear is that the contract of employment is a relatively recent juridical innovation, which assumed its modern form only at the mid-point of the twentieth century. Prior to that time, there was no coherent alphabet of concepts which united the different forms of wage labour in a systematic way. Rather, there were multiple conceptual classifications (servant, independent contractor, casual workers, workman, and office holder) each of which has left its trace in the notion of the employee that we know today.”9

1.1. The Classic Concept of the Employment Contract

In order to present the adaption and development of the employment contract and the comparative study of the Colombian and the EU regulation, it is necessary to describe briefly the evolution of the employment contract and the final classic concept that emerged in Europe during the industrial revolution. The development of labour relations was always determined by the economic realities, globalization, technological advances, social values and the organization of society. The first part of this subchapter will explain the evolution of employment relations from medieval times until the twentieth century when the process of industrialization was well advanced. The second part will focus on describing the classic concept.

1.1.1. Roots of the Employment Contract

8 Bob Hepple and Bruno Veneziani (2009) ‘The Transformation of Labour Law in Europe’, Oxford and Portland Oregon, p. 64. 9 Kahn-Freund, O. (1967) ‘A note on status and contract in modern labour law’ Modern Law Review, 30: 635- 644.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

The description on the evolution of the employment contract will be limited to the period beginning with the middle ages, where relations between servants and masters were the real roots of the modern employment contract.

This evolution can be divided in three main phases. The first is the period from the guild era (middle ages) until the French Revolution. In these times there was mobility of workers and agriculture was the main economic activity. Workers performed their jobs for one and only employer, indicating apparent security. However, it is clear that this framework of employment did not provide protection for employees and it basically amounted to the treatment of work as a commodity. The relation between the servant and his master was regulated under the rules of guilds. Labour contracts did not exist formally, but in practice verbal agreements marked the beginning of the rendering of labour services. The second period covers the French Revolution and ends in the nineteenth century when the most important social transformation started. The employment relation had its main developments under formal freedoms10 where guilds were abolished; regulations were founded in criminal and civil law. Society understood labour relations as bilateral civil agreements for the rendering of a service between free persons. “The idea of the employer-worker relationship as one of an exchange between free and equal contracting parties was linked to the political and economic phenomena of the previous decades, in particular the French Revolution”11 Collective labour rights were suppressed, and the right of association not recognized. One of the paradoxes of the period of the French Revolution was how the fundamental right of freedom did not extend to allowing workers the right of association. In this stage, the pendulum swung to the extreme of flexibility where there were no protective measures to employees at all, in accordance with the laissez-faire economic principle of freedom from State intervention. In the third and final phase,

10 It is important to distinguish between formal and substantive freedoms. Formal freedoms are those that workers have under the contractual agreement. Substantive freedom is what people care about: the real one. It does not matter that the employment contracts provide employees with certain rights if this does not have any effect in reality. 11 Bob Hepple and Bruno Veneziani (2010), p. 55.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union lasting from the nineteenth to the twentieth century, the employment relationship obtained its autonomous character as part of labour law. The equilibrium between the interests of capital and the basic needs of employees started to determine the development of employment contracts and modern labour law. Fundamental rights of workers such as freedom of association, collective bargaining and the right to strike as well as social security protections were established. During this period, the industrialization process was advanced and so was the relationship of employment.12

The creation of large enterprises increased the concentration of the workforce, and the development of employment took on a new characteristic: subordination. The economic dependency of the worker and employer control was essential to the relationship of employment as the employee was subject to orders and instructions. The worker was linked to the company by an employment contract that had a relative long duration, and that was stable as long as the employee loyally adhered to the subordination obligation. “By the early twentieth century, continental countries had witnessed the establishment of the contract of employment as an autonomous legal category”13. This was the birth of the classic concept of labour contract.

1.1.2. The Standard Employment Contract

The classical model of a work agreement involved a male adult working full time with one and the same job for an indefinite period of time in subordinated conditions.14 “In what has been described as a “social contract”, governments during the 1950s and 1960s enacted labor legislation that required all hiring of

12 Bob Hepple and Bruno Veneziani (2010), p. 70 and 71. 13 Bob Hepple and Bruno Veneziani (2010), p. 67. 14 According to professor Veneziani, the Aristotelian rule of labour law was based ‘’on the unities of place and work (work performed on the premises of the firm), of time and work (work carried out in a single temporal sequence) and of action and work (a single occupational activity).”

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union citizens to be by written contract, guaranteed social insurance to permanent, full- time workers, and rendered dismissals difficult”.15

As professor Veneziani says, “The prevalent model in the period of reconstruction is presented by the contract of subordinated employment stipulated for an indefinite period of time, inherent from the previous codes or regulated and updated by special legislation”16 This model that appeared in the post-war period in Europe served to stabilize and develop the damaged economies of the continent after the wars. One of the immediate priorities was the stabilization of the workforce. The birth of welfare states in Europe also permitted the consolidation of the employment contract as a protective mechanism for workers until the 1970‟s, where different models of labour contracts appeared (described further in chapter 1.2).

“The core model, present everywhere to some extent, is the crucial importance of standard full-time-non-temporary-wage-contracts (particularly for adult men), centering around the trade-off between high level of subordination and disciplinary control on the part of the employer and high levels of stability and welfare/insurance compensations and guarantees for the employee”17 Minimum labour law and social security guarantees were included in the contracts giving more uniformity and security to the growing workforce.18 The employment contract was a useful tool to materialize freedom and equality of the parties in the relation; they were understood as a social phenomenon which included persons economically dependent on others.19

15 http://www.allacademic.com//meta/p_mla_apa_research_citation/1/0/0/1/7/pages100174/p100174- 36.php, 6th of February 2010. 16 Bob Hepple and Bruno Veneziani (2009), p. 103 17 Alain Supiot, (2001) ‘Beyond employment: changes in work and the future of labour law in Europe’, Oxford University Press, p. 2. 18 In the industrial revolution, the growth in population led to significant increase in the number of persons on the labour market. 19 Bob Hepple and Bruno Veneziani (2010), p. 68.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

The classic concept of employment, however, should not necessarily be understood as rigid. Even though it is clear that contracts for an indefinite period of time are in line with security and protection, it is also relevant to say that indefinite period of time does not always mean rigidity.20

1.2. Development of Employment Contracts/Deviations of the Classic Concept

The classic model of the labour contract started to be questioned as economic progress slowed down and the crisis began. Economic competition, globalization, technological evolution and societal values influenced the development of the employment contract towards more flexibility. Law had to adapt and present paths to uphold economic stability while maintaining the workforce. New economic concepts started to be used between workers and employers such as productivity, competitiveness and efficiency when stipulating work contracts. After the economic crisis that Europe faced in the last decades, continued development in information and technology made enterprises rethink the object of the labour contract. Accelerated globalization affected employment contracts as well as wages and stability to improve competitiveness of the firm improving competition and profits.21

The oil crisis of the 1970‟s had a strong impact on employment relations and specifically on labour contracts as the level of unemployment increased in the European countries. One measure taken to face the crisis was the adoption of

20 In United States of America employers can dismiss employees at any time and at free will under “at-will” contracts without any justification. This type of employment agreements are for an indefinite period of time, however, they can be terminated at any time, and for any reason (or no reason at all). The courts generally do not intervene to protect the ex-employee from allegedly unfair treatment by the employer. For more details, see: http://www.bls.gov/opub/mlr/2001/01/art1full.pdf and http://www.rbs2.com/atwill.htm#anchor999999. 21 Scholte, Jan A. (2000). Globalization: A Critical Introduction, Macmillan Press Basingstoke UK, St Martin's Press, NY. P 224.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union different kinds of employment agreements because the classic concept was expensive and rigid for employers and the weakened economy.

Countries started to understand that flexible contracts, such as fixed-term or part- time employment contracts were a source of job creation and stabilization of the economy even though the employees suffer less stable labour agreements. “During the 1980‟s, there was a considerable pressure to make labour legislation more flexible. This led to a series of reforms affecting part-time and fixed-term employment. These measures had one and the same goal; to increase the scope for flexible management of company workforces as a response to the perceived rigidity and excessive protection”22. The pendulum moved backward again to the flexibility border.

The following table shows the impact of the crisis on employment and wage rise during the crisis.

Chart 1 Unemployment, prices and wages. EEC 1965-1981 Country % Unemployment % Price rise % Wage rise 1965 1975 1981 1965 1975 1981 1965 1975 1981 Belgium 2.2 5.0 11.6 3.1 6.8 7.5 7.6 12.3 8.8 Denmark 1.2 3.3 8.2 5.0 9.7 11.2 10.2 11.6 9.9 Germany 0.9 2.5 4.8 2.6 5.3 5.8 7.6 9.5 5.6 Greece - - 3.3 - 11.7 24.1 - - 22.5 France 0.8 3.3 7.8 4.2 8.6 13.5 9.6 13.5 15.6 Ireland 4.5 7.1 9.7 3.9 12.8 20 9.3 18.1 18.4 Italy 5.5 5.6 8.6 3.5 13.2 19.5 10.3 17.8 19.3 Luxembourg 0.1 0.2 1.0 2.3 6.3 8 6.2 10.4 9.0 The Netherlands 0.9 3 7.3 4 7.5 7.5 10.4 11.7 4.3 UK 1.8 4 10.2 3.5 12.3 11.8 6.1 15.1 12.1 Source: European Commission (1981), 19-29. Figures for years 1965 and 1975 are averages of 1960-69 and 1970-79, respectively.

Flexibilization was a response to the classic concept of the employment contract that served as a possible solution to balance economic interests and stability of the

22 Bob Hepple and Bruno Veneziani (2009), p. 80.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union workforce in times of crisis. The “degradation” or evolution of the classic concept of the employment contract is caused not only by economic changes but also by a number of socio-economic developments such as:

. Europe faced a shift to a post-industrial society in the final quarter of the last century. There was no need of thousands of blue collar workers23 for factories to perform manual tasks. The era of knowledge and information starts by reducing the enormous workforce populations and having smaller groups of workers that are paid according to their productivity and input in the firms.

. The second situation that challenged the classic concept of the employment contract was the mass entry of women into the labour market and demographic transformation (like the ageing of the population and increasing divorce, instability and heterogeneity in household structure).24 The transformation of the labour supply (feminization) meant more available workforce that could adapt easily to different kinds of flexible contracts such as part-time employment agreements.

“The increased demand for flexible labor has meant the feminization of labor, the growth in the numbers of low-paid, flexible female workers around the world. Jobs growth in the advanced industrial economies over recent years has been predominantly in the area of part-time and casual work. Women's employment opportunities have increased with such jobs, divided mostly into the unskilled or semiskilled category.”25

23 A blue-collar worker is a member of the working class who typically performs manual labor. Blue-collar workers are distinguished from those in the service sector and from white-collar workers, whose jobs are not considered manual labor. Taken from the following web page: http://en.wikipedia.org/wiki/Blue- collar_worker the 21th of March of 2010. 24 Alain Supiot (2001), p. 2. 25 Iftekhar Amin Chowdhury and Anna Rahman, “Labor Flexibilization and Globalization: Changes inTraditional Human Resources Management”, Daffodil International University Journal of Business and Economics, Vol. 2, No. 2, July 2007.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

. High unemployment in the 1980s lead a critical attitude to the labour market and its framework. Labour regulation was criticized for being responsible for the unemployment rates as labour rules were considered “their own enemy”. One of the solutions from an economic approach was to deregulate labour law “removing or rewriting employment rights in the idea that a developed system of stringent rules is an obstacle to productivity and in some way responsible for mass unemployment”.26

. The final socio-economic situation that challenged the classic concept of the labour contract was the internationalization and globalization of markets. “Under the influences of the rising level of employee skills and qualifications the increasing pressure of competition on more open markets, and the even speedier evolution of technical progress (especially in the areas of information and communication) other patterns of work organization have developed”.27

Taking into account the above circumstances that confront the standard employment contract, it was clear that some developments or deviations would better adapt to the economic needs and circumstances. The following contracts are considered the five most important developments of the employment agreements that try to balance the interests of capital and social justice:

1.2.1. Fixed-term contracts

Employment contracts of indefinite duration are considered the general rule, and fixed-term contracts the exception. Reforms in the EU and Colombia28 (which will be analyzed in chapters 2 and 3 respectively), aimed to allow more flexible

26 Bob Hepple and Bruno Veneziani (2009), p. 114 27 Alain Supiot (2001), p. 2. 28 In the EU by Council Directive 1999/70/EC of 28 June 1999 considering the framework agreement on Fixed-term Work and in Colombia by the law 50 of 1990.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union employment agreements so that employers could hire workers according to their specific needs without having to stipulate indefinite periods. However, regulations for these forms of contract required objective justification; “precise and concrete circumstances which characterize the activity in questions, in order to justify recourse to fixed-term contracts. Such specification is necessary”.29 One of the important arguments that were discussed in the adoption of this kind of labour contract was the necessity to guarantee equal treatment among employees that perform an indefinite period contract (that is the reason why the equal pay principle was included in the flexible regulations that constituted the legal framework of this „atypical‟ form of employment contract). In fixed-term contracts, the relation comes to an end at the conclusion of the period provided for. It is important also to be underlined, that an employment relation for an indefinite period of time can, in principle, be ended provided a period of notice is respected; fixed-term contracts come to an end at the conclusion of the period provided for.

The following chart describes the increase in fixed-term contracts between the years 1983 and 1996 showing the rise of this type of contract in Europe. Chart 2

29 Blanpain Roger and Others (2009), “Fixed-term employment contracts”, Vanden Broele, p. 18.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

In almost all the European countries (with the exception of Greece and Luxembourg) the percentage of fixed-term contracts increased in the 80s and 90s decade as the chart describes:

Chart 3 % employees with fixed-term contracts

1983 1996

Belgium 5.4 5.9

Denmark : 11.2

Germany : 11.0

Greece 16.2 11.0

Spain : 33.6

France 3.3 12.5

Ireland 6.1 9.2

Italy 6.6 7.5

Luxembourg 3.2 2.6

Netherlands 5.8 12.0

Austria : 8.0

Portugal : 10.4

Finland : 17.3

Sweden : 11.6

UK 5.5 6.9 Eurostat - Labour force surveys

The fixed-term contract began to be used as a response to economic difficulties. The rigid concept of security was challenged by a more flexible type of contract that was useful in times of crises and/or for specific tasks. The tendency shows that more and more this exception is becoming the general rule.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

Fixed-term contracts are becoming more and more common as their implementation is easier but at the same time the workers are protected in a much better way. In the European Community, EC Directive 1999/70/EC (the “Fixed Term Directive”) managed to strike a positive balance between rigidity and flexibility when loosening restrictions in terms of job stability but at the same time guaranteeing employees equal treatment and the possibility to extend the contract duration renewing such contracts.

1.2.2. Part-time work Part-time work is the second form of contract that evolves towards flexibility. It is considered an employment contract that has a good balance between saving costs to the firm and at the same time allowing personal life to workers. It is important to remark that the reduction of working time does not change the object of the labour relation and basically it is focused on reducing the overall time maintaining productivity. France was a pioneer of the idea of „working less to work for all‟; it was “a contractual formula based on the principle of solidarity between employed and unemployed workers”30.

The following chart describes the increase in part-time contracts between 1983 and 1996 showing the rise of this type of contract.

Chart 4

30 Blanpain, R and Kohler, E (1988) General Report. “Legal and Contractual limitation to Working Time in the European Community Member States”, Deventer Kluwer, p. 79.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

The increase in the volume of part-time work is due to the following reasons:

- Social changes contribute to the evolution of this type of employment contract. The composition of the workforce changed with young persons and women entering the labour market. They did not need full time contracts because of other responsibilities such as studies or motherhood. - Modernization and technological innovations made the performance of the task easier. Part-time contracts could be performed in offices or in the homes of employees in a more efficient and productive way.

This form of employment contract satisfied the needs of the employers and also of those workers that were not able to accept longer employment relationships.31

The following chart shows the increasing women workforce supply and the part- time employment contracts. Chart 5

31 Bob Hepple and Bruno Veneziani (2009), p. 117

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Some part-time workers could have several labour relations with different employers, while their employers could choose from among an increasing pool of potential employees. In this way, the notion of employment acquired polyvalent meanings and practices as many forms of work emerge within the same economic system.32

1.2.3. Labour on Call This deviation from the classic form of the employment contract basically consists of granting the employer complete discretion as to the times in which the labour is

32 Manos Spyridakis (2006) The Political Economy of Labor Relations in the Context of Greek Shipbuilding: An Ethnographic Account, History and Anthropology, Vol. 17, No. 2, pp. 153–170.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union to be performed. The employer will call the employee when he or she is needed by the firm. This structure is useful when there is a potential job that the worker can do at any moment if the employer makes a previous call. In countries like Belgium, labour on call is understood as the situation in which the worker is “at the disposal” of the employer. In this particular situation, labour on call is considered working time. Employees will receive the same wage regardless of if they are standing by or effectively working.

This phenomenon becomes common during periods of deregulation in commerce, service industries, air transport and tourism.33

1.2.4. Triangular relation. Putting workers at the disposal of the user.

The different forms and developments of employment contracts are a response to the transformation of society by economic challenges, modernization, technological improvements and global competition. This is probably the reason for the birth of triangular labour relations. In essence the triangular relations involve the employer, the employee and a third party that usually is called the user. The employer dispatches the worker to perform a job for a third party. The latter assigns the worker‟s tasks and supervises the execution of these tasks while the formal employment relationship remains with the employer, who assumes the responsibilities concerning the worker, in particular for remuneration and social security contributions. Since the 1970s, there had been an increase in the number of triangular employment relationships, in several forms. “The contract of employment through an intermediary (travail interimaire) and the lending or temporary attachment of workers, including pooling”34 are some of the deviations from the classic concept of employment through triangular relations. This model can be considered a grey zone between labour law (as a branch that protects

33 Ibidem. 34 Bob Hepple and Bruno Veneziani (2009), p. 119.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union human personality and work- and commercial law -which regulates commodities and services).

Some critics say that this type of employment relation becomes less stable and such structures can lead to discrimination amongst workers of the same firm (since directly hired employees may have benefits that temporary workers may not have).35

An example of this type of flexible contract is found in rice production of Argentina, “were common manual tasks that, besides being seasonal, demand a large amount of labor. In these cases, the labor contractors provide the mobilization of seasonal labor, organize the work so that the workers can be easily supervised and disciplined, and, at the same time, relieve the producers of legal problems by assuming these responsibilities themselves”.36

Different kinds of triangular relations can be studied, but for the purposes of this analysis only temporary work agencies and professional employment organizations (leasing workers) will be explained as examples of this kind of contract:

1.2.4.1. Temporary work agencies

The most common form of triangular relations is the use of temporary work agencies -“TWA”-, where an agency is retained to hire workers that will perform services for the benefit of a third-party. The labour relation is between the TWA and the worker which means that wages, disciplinary procedures and social security contributions are covered by the employer. The user firm has the right of functional subordination so that it can give orders to the worker to perform tasks according to its needs. It can be said that functional subordination (orders and

35 Regulation of Temporary Work Agencies in Colombia does not include non-discrimination provisions, which permits employers to make clear differentiations in the treatment of temporary and direct workers. This provision will be analyzed in chapters 2 and 4. 36 Neiman Guillermo and Quaranta Germán (2005) “Restructuring and Functional Flexibilization of Agricultural Labor in Argentina”, Latin American Perspectives 2004, p. 31.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union instruction to perform tasks), is delegated to the user, but contractual subordination (payments, schedules, sickness benefits, etc.) are covered by the TWA. The justification of this model of employment contract focuses on the following criteria:

. In case of casual or incidental work. . When the company requires a replacement of staff that is on holiday, leave, or disability due to sickness or maternity. . When there is an increased demand on production, transport, sales of products or goods, seasonal periods of crops or providing services for a term that cannot be longer than 1 year.

The table below presents estimates of the number of temporary agency workers as a percentage of the total employment in the seven countries. The table is based on national findings, CIETT‟s statistics and European labour force statistics.

Chart 6 Temporary agency workers as a percentage of total employment Number of Data supplier Total Temporary temporary employment agency agency (000s) workers as a workers percentage of total employment Denmark (2001) 30,565 (2001) Statistics 27,410 1.1% Denmark Finland (2002) 12,620 (2002) Employment 24,060 0.5% statistics, Statistics Finland France (2002) 570,000 (volume DARES, use of 238,850 2.4% of UNEDIC files contracts based equivalent on monthly to full-time jobs reports in from temporary 2002) work agencies Germany (2002) 336,295 (2002) German Federal 362,750 0.9%

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Employment Agency Netherlands n/a Labour force 81,760 2.8% (2001) statistics from the Dutch Central Bureau of Statistics Spain (2001) 110,000 (2001) CIETT 162,410 0.7% Sweden (2003) 28,696 (2003) Statistics Sweden 43,480 0.7% Source: Own estimates based on data collected by the national correspondents in the European Working Conditions. Observatory. The total employment (000s) is based on the European labour force survey 2002.

The above table shows that TWA are used in Europe only exceptionally, probably because of the high costs that are involved, the necessity of maintaining trained staff and the need to protect the secrecy of the firm.

Finally, it is also important to say that triangular relations can not necessarily be understood as flexible contracts that may be contrary to security and rigidity. It is possible that temporary workers have indefinite period of time contracts with the TWA. This example shows how the relation between rigidity and flexibility is always in tension but a balance can be achieved.

1.2.4.2. Leasing of workers in United States of America

Another model of triangular relations is found in Unites States of America were employee leasing became prevalent in the 1980‟s. Nowadays it is less and less common to use this phrase.37 Instead, references are made to "outsourcing human resources" or simply "working with a Professional Employer Organization." Leasing of workers involves a contractual commercial relationship between a company and a Professional Employer Organization -“PEO”-. When a business enters into a contract with a PEO, it becomes the co-employer of the PEO employee. Under the co-employment arrangement, the employees of the company come under the

37 Companies avoid the word "leasing" because it has negative connotations as work in not considered a commodity which is a typical term used in contracts of commercial leasing.

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PEO's control for personnel-related matters but remain under the business's control for operational matters (functional subordination).

The undertaking pays all of the employment costs involved and also pays the PEO a fee. In practice the company "leases" its employees. Employees work for the undertaking business even though their wages come from the PEO. It is important to briefly explain the effects of the co-employment clause typical in this kind of contract. This clause transforms the contract of employment by presenting the worker two employers.38

1.2.5. Telework

One of the biggest impacts in the era of information is the enormous progress in technology. This has made possible the performance of work in places different than the central place of production. Since the 1980‟s, workers can perform their jobs from their homes without the need of going to the office. “Technological revolution made it possible decentralizing certain functions, such as planning, research, supervision of accounts and know-how”.39

The use of communications in the employment relation that made tele-work possible not only challenged the classic concept of employment, but has also generated discussion as to whether the subordination may apply. For instance British and Swedish legislation express that home-work can, in some cases, be considered as a form of self-employment and not a standard labour relation.40

1.3. Conclusion

As far as work and employment are concerned, the growing global demand for flexible labour which accompanied globalization has been generated by “the

38 http://definitions.uslegal.com/e/employee-leasing-programs/ taken the 23th of March of 2010. 39 Bob Hepple and Bruno Veneziani (2009), p. 119. 40 Ibidem.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union deregulation of labor markets, fragmentation of production processes, deindustrialization and emergence of new areas of export specialization”.41 Some critics understand flexibility as a way of undermining employment standards and social welfare to the detriment of workers. “Flexibility will make the capital owners gain all the benefits of social and economic co-ordination without having to pay anything in exchange. Work performed for nothing and social security exclusively financed by its beneficiaries would be the ultimate outcome of these hopes”.42 The arguments that support rigidity and security are against flexibility expressing that the other forms of employment relations are clearly affecting workers by demanding more performance criteria, increasing job insecurity and disrupting of the work-life balance. Critics also say that the evolution of employment contracts is a response of economic interests that are harming the balance between rigidity and flexibility.

This is not the opinion of the author, who (on the contrary) understands flexibility as the result of an economic and social reality that confronted the crisis providing options to have a more efficient and productive labour market. These changes include the development of employment contracts. “An economy that wants to maximize the profits has necessary to take in to account the workforce and the ways in which the human capital can be more effective not only to companies but also to themselves. Flexibility and the changes in employment contracts also mean constant training and having more and better qualified employees so that their ambitions of productivity will be in some ways the same as their employers”.43 We need to adapt as societies are evolving in more flexible markets. The development of societies, economic competition, globalization, technological evolution and societal values are pushing the balance towards flexible rules in employment contracts. Employment for an indefinite term must continue to be the norm, but

41 Iftekhar Amin Chowdhury and Anna Rahman, (2007). 42 Alain Supiot (2001). 43 Alain Supiot (2001),n p. 193.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union other forms of employment contracts must be part of the legal framework in order to maintain stability and employability in the long term.

The development of employment relationships includes changes in the contract between the worker and the employer. As a general rule, instead of offering employees a promise of employment stability with indefinite period contracts, nowadays employers can offer employability security (the ability to network and acquire skills that will enhance the employee‟s opportunities in the labour market). In this new model of the employment relationship, employees are offered the possibility to manage their own careers, rather than to expect long-term employment from a single firm.44

One important study of the International Labour Organization –„ILO‟-, presented by Arturo Bronstein45 exposes the roots and ideas that are behind the birth of flexibility. Certain economic and technological factors, ideological thoughts and cultural situations have allowed flexibility to increase in the past decades. The following is a brief summary of the reasons for this flexibility.

Economic and Technological Factors Europe underwent major economic changes during the 60s and 70s. After the end of the Second World War until the 60s, Europe experienced a period of economic growth that stopped in the oil crisis. During the 70s, companies were forced to restructure in response to economic challenges. The emergence of new technologies also made companies more productive with less cost (the labour force began to shrink).

Ideology

44 Stone, Katherine (2006), “Flexibilization, Globalization, And Privatization: Three Challenges To Labour Rights In Our Time”, K.V.W. Stone. 45 Bronstein, Arturo: “La flexibilidad del trabajo: Panorama general, en La flexibilización del trabajo. Un estudio internacional”. Instituto Latinoamericano de Derecho del Trabajo, Barquisimeto, 1990, p. 208.

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Societies questioned the welfare states, and a politically liberal mentality emerged, which emphasized the market as the optimum mechanism for distributing resources in society. The idea was that the market and not the State should be responsible for the regulation of labour relations. Labour protectionism was a barrier for the free market, and deregulation was therefore a necessity.

Culture

Psychosocial pressure from the workers themselves46 modified the understanding of employment relations, which changed from the classic concept of the work contract to a more open one. The entrance of women in the labour force and the will to have personal and professional balance contributed to the origin of flexible contracts. (Explained in subtitle 1.2.2 for part-time work)

Versatility and adaptability are the characteristics of economic functioning flexibility that need conditions such as competition, deregulation and globalization. The economic reality confronts labour law with the equilibrium that employers must have in order to subsist changing the understanding of flexible structures not as a possibility but as a prerequisite.

Division of the workforce

The multinationals are dividing the labour force into two types of employees: core and peripheral, or flexible, workers. The former are high skilled professionals that have a direct contract with the company and perform their task in the headquarters of the company. Usually they are full-time and very well paid employees who also receive extra-legal benefits as part of their compensation packages. The flexible or peripheral workers, by contrast, do not have direct contract with the multinational and are generally temporary workers or

46 Ibidem.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union sub-contractors working under part-time or fixed-term contracts and receiving low wages.47

What is the next step of flexibility?

The employment relationship in the classic model had a hierarchical structure in which managers took decisions and imposed orders from the top of the pyramid. Workers uniformly execute orders. Nowadays, the structure is more horizontal and less hierarchical, and employees are considered members of a team. In the era of information, knowledge is the most important asset. Employees work as a team that has to produce a result. Finally, it is also important to underline that the faculty of subordination has been challenged as well, as nowadays managers act as teammates and there are no direct orders to follow. The boss has to stimulate the work, creativity and social skills of the employees.

Flexibility in today‟s labour relations “implies that we should think of the development of collective economic frameworks in terms of co-ordination, rather that strict regulation (…) ” We are entering an era of diversity which affects products, services, work, methods of co-ordination and efficient production models (a diversity made possible by the accelerated development and application of information technologies).48

CHAPTER 2. Colombian Regulation of the Employment Contract. Act 50 of 1990

The classic concept of the employment relationship in Colombia began to change in the early years of the 90s as a result of a tension between rigidity and flexibility.

47 Iftekhar Amin Chowdhury and Anna Rahman, (2007). 48 Alain Supiot (2001), p. 190.

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This chapter will begin to provide an overview of the transformation of labour law and employment contracts in Latin-American countries as a result of the flexibility ideology developed in western countries. Subsequently, the chapter will explain the legal genesis of the major labour reform of Colombia and the effects that it had on employment contracts.

2.1. Latin-American Context Despite the widespread belief that the Latin American countries have homogeneous traditions and legal frameworks, certain developments are much more perceptible in some countries than in others. Under the neo-liberal reforms in countries like Colombia, Chile (under Pinochet), Peru (under Fujimori) and Argentina (under Menem), general labour law and, in particular, the employment contract passed from a highly protective labour framework to a more flexible one. However, at the same time other countries like the Dominican Republic, El Salvador and Venezuela strengthened the rigidity in their existing protective labour law.

Latin-American countries inherited a culture of state intervention adopting long labour codes that included both individual and collective labour relations from Spain and Portugal (former colonial powers).49 The influence of France and Spain was decisive in the framing of labour law in most Latin American countries. In the words of Arturo Bronstein, “these laws in the Latin America countries and more especially the law of contracts of employment share a common pattern in that they have been elaborated within an overall civil law setting (…) whereby an employee works for wages under the subordination of an employer on the basis of private- contract law.”50

49 Unlike Asia and Africa, the countries of this region have been independent since the early 19th century, with some exceptions like Cuba (independent in 1902) and Panama (independent in 1903). 50 Bronstein Arturo (2010), “Labour Law in Latin America: Some Recent (and not so Recent) Trends”, International Journal of Comparative Law and Industrial Relations, Volume 26, issues 1, p. 18.

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There is no doubt that Western European legal frameworks influenced the Latin American debate on labour reforms that started in the 1970s. Latin America was shifting from rigidity to flexibility and with this change, the focus of employment contracts changed from security to economic efficiency. Moreover, the International Labour Organization had an important influence on Latin-American labour law due to the fact that some countries (like El Salvador, Panama and the Dominican Republic) received direct technical assistance from the ILO in the drafting and/or revision of their labour codes.

The transformation of the Latin American economies had a major impact on the labour law of those countries in the first two decades of the last century as urban and factory jobs became increasingly important as compared to the traditional rural ones. Countries like Colombia, Argentina, Guatemala and Uruguay legislated on weekly rest, hours of work and workers‟ compensation among other issues. Furthermore, from the early 1920s to the 1950s, all Latin American countries adopted labour codes and or laws on contracts of employment.51

The 1980s is referred to as the “lost decade” of Latin America, characterized by high inflation, poor economic performance, high foreign debt and rising unemployment. It was precisely in this decade that rigidity and protectionism was challenged by the neo-liberal theories that call for freedom of the market from state interventionism.52 In the 1990s, the debate on labour flexibility came to the forefront, and as a result new types of employment relations were originated. This was a response to the flexibility dispute that challenged the equilibrium achieved by protectionisms in the rigid previous stage. Additionally, Latin American countries revised their labour laws at least once to try to adapt their framework to a more “business friendly” environment for the growing global economy.

51 The first ever law on employment contracts was enacted in 1924 in Chile, and was followed by labour legislation in Mexico and Chile in 1930, Brazil in 1934, Venezuela and Ecuador in 1936, Bolivia in 1939, Costa Rica in 1943, Nicaragua in 1945, Guatemala and Panama in 1947, Colombia in 1950 and the Dominican Republic in 1951. 52 Bronstein Arturo (2010), p. 25.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

2.2. Legal Genesis of Act 50 of 1990 in Colombia

The preamble of the Act 50 of 1990 stated: “Modernization of the economy makes it necessary that our labour law be more flexible so that our production becomes more competitive, investment is promoted and employment generation is increased”. Colombia was facing high rates of unemployment53 and an increasing discontent about the then current labour framework. Intellectuals, politicians and academics searched for solutions.

Some Colombians argued that the very poor economic progress in the country during the 80s was a result of a rigid labour framework. In fact, this framework was considered an “enemy of itself” as it increased the rate of unemployment and contributed to the decrease in economic activity. At the time it was thought that to improve these conditions and make the country more business friendly, employment contracts needed to be more flexible, maintaining their classic form but presenting broader alternatives to the employers that had to face a growing and competitive market economy.

Act 50 of 1990 The Congress of Colombia passed Act number 50 on the December 14, 1990. This constituted the most important reform to the Labour Code since it was enacted in 1950. The act was important because of its length (117 articles) and because it made sweeping amendments to the law, affecting a variety of very sensitive topics in the labour framework. This essay will only focus on matters that affect the employment contract (including the fixed-term-contract, part-time-contract and temporal workers). The Telework Act was not included in the Act 50 of 1990 but in a later one (1221 of 2008). Telework will be considered in section 2.5.

53 According to the National Department of Colombian Statistics, the unemployment rate in 1990 was over 10% with a continuously ascending tendency.

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One of the arguments in favour of the labour reform was the claim that a modern economy needed more flexible work standards to promote foreign investment, stimulate the economy and, as a result, improve the rates of employment. Some experts today support the flexibilization of labour relations, explaining that: “The employment contract became an endless succession of surprises with uncertain and obligations. This is a consequence of confuse and vague regulations, which were not stimulating productive work”.54

The only employment contract regulated in the previous Labour Code was the classic work contract (covering an indefinite period of time) which made the system very rigid for the employers.

Intense debates and discussions followed the process of labour reform. The main actors in such debates included social partners (employers‟ organizations and federations of unions), academic centers, a mission of the ILO, the Congress, the government and a report of an international mission called Chenery.55 As a result, “the labor reform tried to reconcile what was socially desirable with what was economically feasible”.56 (It was generally considered to strike a good balance between rigidity and flexibility.)

2.3. Fixed-term Contracts

One of the major innovations of Act 50 of 1990 was the inclusion of the fixed-term contract as a form of employment relation. The objectives of this type of employment contract were to encourage direct work contracts with employers and to fight against an increasing model of intermediation through which companies

54 Martha Pacheco de Jaramillo and Elsa Margarita Sanchez de Pineiro (1991), “Ley de reforma laboral: antecedentes historicos, comentarios”, Caja de Compensacion Familiar Compensar, p. 15. 55 In 1985, the mission Chenery presented suggestions for how to modernize the labour framework of Colombia in response to the new economic circumstances in a globalized world. 56 Martha Pacheco de Jaramillo and Elsa Margarita Sanchez de Pineiro (1991), p. 16.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union were taking advantage of the unemployed population without guaranteeing them minimum labour prerogatives. These non-regulated temporary services were also included in the Act 50 and will be described in section 2.4 of this document.

The former congressman (1990 –1994) and current president of Colombia, Alvaro Uribe Velez, was a promoter of the Act 50 and a facilitator during the legislative process. In one of his speeches, he promised to reduce unemployment by adopting fixed-term contract as a flexible form of employment.57

Article 3 of Act 50 of 1990 modified article 46 of the Colombian Labour Code to introduce the fixed-term contract. It is important to briefly describe the main characteristics of this model of employment relation in Colombia.

The contract is regulated under the following rules: . Fixed-term contracts should always be written. . The period should not exceed three years but may be renewed indefinitely. . If the fixed term of the contract is for less than one year, it may only be extended for up to three equal periods, after which the renewal term shall be not less than one year. . The contract can be entered into as many times as the parties wish without losing its nature of a fixed-term contract. . When the fixed-term contract has a period of less than one year, the worker has the right to receive proportional vacation allowances and mandatory premium payments.

2.3.1. Case Law

2.3.1.1. General Comments

57 http://www.desdeabajo.info/index.php/ediciones/152-edicion-129/777-la-contrarreforma-laboral-y-de- la-seguridad-social-arremetida-de-los-patrones.html

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In three very important cases, the Constitutional Court of Colombia analyzed the article of the Labour Code that regulated fixed-term contracts, adjusting the employment model to the constitutional rights enacted in Colombia´s 1991 Constitution.

2.3.1.2. Judgments

2.3.1.2.1. Johana Urquijo P. vs. Lácteos del Norte Ltda.- Primacy of the Reality58

Facts Johana Urquijo Pinto entered into a fixed-term contract with “Lácteos del Norte Ltda.” for one year. However, the contract provided that it would terminate prematurely if the business did not require the services of Mrs. Pinto for the full duration. The plaintiff gave birth, and immediately after the end of her maternity leave she was fired. For the purposes of this analysis, the description of the considerations of the Court will focus only on the fixed-term contract and no comment will be made on maternity-related issues.

Considerations of the Court The legal question that the Court had to answer in relation to fixed-term contracts is the following:

Can an employment relationship that has been given the form of a fixed- term contract be considered to be a contract for an indefinite period under the principle of primacy of the reality in industrial relations?

58 Case number T-404 of 2005 from the Constitutional Court of Colombia

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The Constitutional Court held that employment contracts with a definite term are not contrary to the job stability principle set out in article 53 of the Colombian Constitution. According to the judge,59 this principle cannot be construed as meaning that the employment relation should be maintained for an indefinite period of time. “What matters is the real expectation of the worker to keep her job if she complies with the employment duties. There is also an obligation of the employer‟s to maintain the relation renewing the labour contract if the business requires the job.”

Judgment The Court ruled that Mrs. Johana Urquijo Pinto had entered into a fixed-term employment contract. The principle of primacy of reality was therefore not applicable.

Comments on the judgment It is clear that in this judgment the Constitutional Court of Colombia defended the fixed-term contract as a valid employment relation. The flexibility principle supports the considerations of the Court and no comments were made as to the security of workers performing this type of contract. Even though it is clear that the worker is the weaker party in the employment relationship, the Court limited its arguments to defending the right of the parties to stipulate the contract that best fitted to both parts.

2.3.1.2.2. Alfonso Maro Leon vs. Art 46 CLC – Successive Contracts60

Facts Alfonso Maro Leon presented to the Constitutional Court an action of unconstitutionality against the articles of the Colombian Labour Code (45 and 46)

59 MP Jaime Córdoba Triviño. 60 Case number C-016 of 1998 from the Constitutional Court of Colombia

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union that regulated fixed-term contracts. He exposed that the articles did not guarantee the constitutional principle of job stability.

Considerations of the Court The Constitutional Court of Colombia expressed, in first term, the legality of fixed- term contracts. However, it established conditions in order to protect the constitutional principle of job stability when an employee is performing his labour contract under a fixed-term period. The Court ruled that the employer must renew the contracts in all cases if the following conditions are fulfilled:

 The original causes that gave rise to the contract persist.  The employee has effectively satisfied its obligations in the performance of his contract.

Judgment The Court ruled that the articles of the Colombian Labour Code that were modified by the labour reform in the fixed-term contract are legal and in line with the Constitution.

Comments on the judgment This case was very significant and relevant because with this interpretation, the Court forces employers to maintain the contract and to renew the period of time if i) the circumstances have not changed and ii) the employee discharged the duties of his job under normal conditions. The Court is balancing the tension towards security of the labour system in favor of the workers. Even though the Court defended the legality of the fixed-term contracts, it is clear that the renewal will be compulsory if the necessary conditions are satisfied.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

2.3.1.2.3. Luz Marina Zuluaga vs. Art 46 CLC – Equal Treatment61

Facts Luz Marina Zuluaga Llanos presented to the Constitutional Court an action of unconstitutionality against article 46 of the Colombian Labour Code that regulated fixed-term contracts. The plaintiff considered that the article violated fundamental rights (equality, primacy of reality and stability of employment) of the Colombian Constitution.

Considerations of the Court The Court clarified that the nature of the fixed-term contract will not change when indefinite renewals may occur. In other words, the Court held that the fixed-term contract will not change its nature into an indefinite period one only because there are unlimited renewals. The Court presented its arguments focusing on the agreement and the free will of the parties.

Judgment The Court ruled that the articles of the Colombian Labour Code that were modified by the labour reform in the fixed-term contract are legal and according to the Constitution.

Comments on the judgment This was one of the first judgments of the Court in this matter (only four years after the Act 50 of 1990 was issued). The Court defended the fixed-term contract as a legal model of employment relation that is not against the principle of stability in the sense that it is a result of the negotiation of the parties to adopt the best employment contract.

61 Case number C-588 de 1995 from the Constitutional Court of Colombia

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2.2 Part-time Contracts

The Act 50 of 1990 also included the possibility of entering into employment contracts stipulating fewer hours than those required in a full time employment contract. Article 19 of the Act modified article 147 of the Colombian Labour Code establishing the procedure to determine wages when the employee works for a portion of the day only. The law provides: “For those who work less hours earning the statutory or conventional minimum wage, the salary will be in proportion to the effectively working time.”62

If a worker is retained to work part-time for half a day and stipulates the minimum legal salary, the wage will be half that minimum wage and the working hours per week will be maximum twenty-four.63

The contract is regulated under the following rules: . Part-time agreements should always be written. . Article 162 of the Colombian Labour Code permits the employer to decide the hours and the shifts that the worker must observe according to the requirements of the company. . The Social Security contributions should be paid on the basis of one full minimum wage. . It is possible under very special circumstances (article 161, consideration c, of the Labour Code) to shorten the maximum legal hours of work per day from 8 to 6 and from 48 to 36 weekly conserving the same wage, when the employer needs continued shifts to maintain a 24 hour operation. In this type of part-time job, the worker earns a complete wage but does not cause extra fees for night-work or work-holiday. In this case, the employee has the right to a paid day for rest.

62 Article 19, Act 50 of 1990. 63 Article 161 of CLC establishes 48 hours as the maximum weekly working time.

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This form of employment contract is uncommon, probably because of the high costs that the employer incurs in respect of social security contributions.

2.3 Temporary Work Agencies

In the 1980s there were many intermediary companies that replaced direct workers for temporary ones. Labour law had no tools or mechanisms to prevent this situation, which affected employees‟ interests (deteriorating their working conditions). As a result, one of the most important aspects of the flexibilization of the labour reform (Act 50 of 1990) was regulating the functioning of the temporary agency work. Article 71 of Act 50 defined temporary employment as one that engages the services with a user undertaking to work temporarily in the performance of their activities through the work of natural persons directly employed by the TWA. It is relevant to underline that temporary work in Colombia started to have positive regulation with the Act 50 but subsequent laws gave precise definitions and sanctions.64 This flexible model of employment contract was abused by some sectors of Colombia. The response to this situation was the implementation of some rigid measures to protect employees.

The principle of “equal pay for equal work” was introduced,65 assuring equal wages for employees that perform equal tasks independently of whether they are direct or temporary. As in the European Union, the equal treatment principle was included in the labour reform for workers that could perform their tasks in the user undertaking.

Temporary Work Agencies in Colombia have the following characteristics:

64 Decree number 1530 of 1996, Decree number 1703 of 2002 and most recently Decree number 4369 of 2006, which picked up the basic provisions contained in the Act 50 and gave specific rules to control the possible abuses of the figure. 65 Art 79 of Act 50 of 1990.

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. The corporate object of TWA‟s must be exclusively to provide services to a user undertaking by supplying them with temporary workers. . The maximum term of temporary work is one year. . Temporary employees may not continue rendering services to the same undertaking company after the expiration of their employment terms. The same temporary agency worker cannot be hired repeatedly using the same or a different TWA. . Temporary work is permitted only under the following circumstances: . In case of casual, occasional, incidental or transitional situations, which differ from the normal activities of the employer. . When the company requires a replacement of staff that is on holiday or leave, or is absent due to sickness or maternity. . When there is an increased demand of production, transport, sales of products or goods and seasonal crop periods no longer than 1 year.

. The uses undertaking must inform the state agency that supervises social contributions of the payment of the TWA to the temporary employees. If the duty to inform is breached and contributions are not made, the user undertaker is liable to pay as if it was the employer. . The contracts between the TWA and the user must be written and must mention the insurance company covering the risk of breach of the requirement to pay social security contributions. . There are two independent contracts where such agencies are involved: (i) a commercial contract between the TWA and the user company, and (ii) a labour contract between the employee and the TWA. . There are also two types of workers; temporary agency workers supplied by the TWA and permanent workers that perform administrative tasks for the TWA. . Prior authorization from the Ministry of Work is required before the TWA commences operations.

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. The Ministry of Work can investigate any time undertaking companies‟ to assure that they are making use of the model of TWA in a legal way. In case of violation of the law, daily economic sanctions will be imposed. . The TWA shall not request remuneration or fees from the temporary agency worker. In other words, labor intermediation will always be free of charge for the worker under article 95 of the Act 50 of 1990. . Finally, it is noteworthy that the statute prohibits the TWA from supplying temporary workers when the undertaking company is subject to a strike.66

In the opinion of the author, temporary agency work is used as an extension of the trial period for workers. Under this scheme, the undertaking companies can hire workers and decide after 6 months whether to retain them or not. This allows companies to test the adequacy of the skills of these workers for a period longer than the Colombian law allows under a direct contract in which the prescribed trial period is two months (as provided under article 78 of the Colombian Labour Code).

2.3.2. Case Law

2.3.2.1. General Comments

There is only one important case that is analyzed by the Constitutional Court of Colombia regarding TWA‟s.

2.3.2.2. Nohema Pinedo Ruiz vs. Art 177 Act 50 of 1990 – Equal Treatment67

Facts Nohema Pinedo Ruiz presented to the Constitutional Court an action of unconstitutionality against article 177 of the Act 50 of 1990 that regulated temporary work. The plaintiff considered that the article violates the right of

66 Article 89 of Act 50 of 1990. 67 Case number C-330 de 1995 from the Constitutional Court of Colombia

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union equality in the Colombian Constitution establishing discrimination to employees in mission (as they have in their labour contract a time limit).

Considerations of the Court The Constitutional Court examined the possible illegality of the time limit that the Act 50 of 1990 imposes to the temporary agency workers. The Court drew boundaries for the recruitment of temporary services, in accordance to the constitutional right of work stability, so that companies stopped using temporary work for indefinite periods of time. The reasons that the Court exposed are precisely that the purpose of the rule setting a minimum term of six months extendable up to six more months, is the protection of workers.

The Court exposed that temporary services must be the exception while direct hiring should continue to be the general rule.

Judgment The Court ruled that the articles of the Colombian labour code is according to the Constitution.

Comments on the judgment This case presents arguments from the Constitutional Court defending the right of workers to security pursuing employment contracts for indefinite period of time as the general rule. Contracts with Taws‟ should be the exception. The balance between rigidity and flexibility is obtained in a positive way as the Court declared legal the temporary agency work imposing some rigid limits to protect workers.

2.4. Tele-work. Act 1221 of 2008

The employment relation where the services are performed in a place different than the employers‟ promises was introduced 18 years after the labour reform by

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union the Act 1221 of 2008. The main objective of the regulation was the promotion and regulation of tele-work as an instrument of employment generation and self- employment through the use of information technologies and telecommunications. Article 2 of Act 1221 defines tele-work as a: “form of labor organization, which consists in performing activities or services using technological support without requiring the physical presence of workers in the place of business.” This law was conceived to improve the conditions of vulnerable population in Colombia.68 Tele- work “is moving the work to employees rather than having the workers to move from their homes to the place of the employer”.69

The main characteristics of tele-work in Colombia are the following:

 The application of the maximum working time and supplementary work are not covered by tele-workers according to article 6 of Act 1221. However, the Ministry of Work will do special monitoring to ensure that tele-workers are not subjected to excessive workloads.

 Telework should apply in Colombia according to the principle of equal pay recognizing the same wage to tele-workers than to employees performing the same task in the place of business.

 The employer is responsible for the programs of health and safety on tele- workers.

 Telework in Colombia can have one of the following forms:

 Autonomous: This type includes employees who use their own home or another place to develop their activity. In this situation, workers always perform their job outside the company and come to the office only occasionally.

68 According to article 3, paragraph first of the Act number 1221 2008, vulnerable population is considered people experiencing disabilities, in a situation of forced displacement, living in geographical isolation, women heads of households, population in prison, people with life threatening, etc. 69 http://www.scribd.com/doc/19118208/TELETRABAJO-Contratos-Laborales

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 Mobile: In this case, the employees do not have a workplace established and the primary tools to develop their professional activities are mobile technological devices.

 Supplementary: Those employees that work two or three days a week at home and at the rest of the time in the office are called supplementary tele-workers.

 The minimum requirements to perform tele-work are:

 Personal computer

 Internet access

 Electronic mail

 Access to the corporate intranet

 Telephone

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CHAPTER 3. European Regulation of Employment Contracts

During the extraordinary summit on employment held in Luxemburg in 1997, the European Council called upon social partners to begin negotiations to “(…) modernize the organization of work. Including flexible working arrangements, to make undertakings productive and competitive and achieve the required balance between flexibility and security”70.

At the time, the general rule for labour contracts in the EU followed the classic concept of employment relation of the last century, that is, a full-time contract for an indefinite period of time. This rigid concept however, later found a counterweight when European institutions regulated flexible employment contracts. In Europe, the balance of the dilemma found its place when the EU framework facilitated the creation of other labour contracts, thereby protecting employees‟ right to equal treatment and preventing possible abuses.

This chapter explains the concept of flexicurity and its origin in Europe. The subchapters will explain the EU Directives on fixed-term contracts, part-time contracts, temporary work agencies and tele-work. The aim of this chapter is to analyze and study how Europe has regulated different employment relations. The fourth Chapter is a comparative study of the differences and similarities with Colombian regulation.

3.1 Flexicurity New business environments and labor force need to increasingly adapt faster to the pressures and new needs of the market derived from globalization, European economic integration, and the development of new technologies. Flexicurity is a combination of the words “flexibility”‟ and “security” to call for measures that reinforce both elements at the same time, with the help of various mechanisms related to legislation, lifelong learning, active labor market policies, and

70 Council Directive 1999/70/EC/ of 28 June 1999 concerning the framework agreement on fixed-term work, consideration 5 of the preamble in the annex.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union modernization of social security systems. The concept of flexicurity calls for a move away from the protective and rigid model of employment relations which was a result of circumstances that have been challenged by globalization, technological advances, economic conditions, and the evolution of societies.

The logic behind the concept is to strike a correct balance between rigidity and flexibility. On one side, flexicurity aims at providing workers sufficient flexibility to make fast, easy and secure transitions between different statuses in the labor market (from school to work, from one job to other, from unemployment to employment, and from employment to retirement). On the other, this theory offers the flexibility that enterprises need to cope with the requirements of restructuring, relocating, or reorganizing work to increase productivity, and profits.

The European Union in the face of the European Commission took its role at looking for the best way to achieve flexicurity, making it mutually beneficial for businesses and workers. In the Commission‟s Communication -Towards Common Principles of Flexicurity: More and better jobs through flexibility- the main elements of flexicurity are underlined and Member States are urged to choose their own pathways for flexicurity. The Danish so-called “golden triangle” of a flexible labor market, generous social security and active labor market policies illustrates a functioning flexicurity system but should be considered only in combination with adequate macroeconomic and fiscal policies, and cannot be taken as a universal model. Each country shall adopt its own flexicurity pathway, adjusted to national context, labor market traditions, and industrial relations systems.71

In general, flexicurity is a coherent strategy to increase flexibility and security in the labor market at the same time. This approach has a positive result; employers have a flexible labour framework that facilitates economic progress while at the same time workers are protected.

71 Tsvetelina Tornyova (2010), “Flexicurity: European Practices and Bulgarian Experience”, Course Paper of Globalization and International Labour Law, Tilburg University.

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The following subchapters will study the evolution of the different forms of employment contracts in the EU as a solution to the dilemma.

3.2 Directive on Fixed-term Contracts

The Fixed-Term Contracts Directive72 -“FTC-” was adopted in the year 1999 by the European Union and was negotiated between the European social partners. The purpose of the directive was to improve the quality of fixed-term contract work by ensuring the application of the principle of non-discrimination, and establish a framework to prevent abuse of such employment relations through the use of successive fixed-term contracts.73

The directive recognizes that the classic concept of employment relation is and will continue to be, agreements for an indefinite period of time. However, under certain circumstances fixed-term contracts can be better suited for some sectors and specific situations. The Directive established a general framework protecting fixed-term workers from discrimination abuses and called for the protection for equal gender opportunities.74

The FTC was also a response to the economical challenges that the EU was facing and the need to have a more competitive and efficient economy, adapting employment contracts to the needs of both employers and workers in the current world.

The detailed regulation and implementation of the FTC will depend on the reality and particular circumstances of each Member State. Social Security is a matter that is not included in the Directive and which each Member State is free to regulate.

72 Council Directive 1999/70/EC/ of 28 June 1999 concerning the framework agreement on fixed-term work. 73 http://www.jrank.org/business/pages/597/Fixed-Term-Contracts-Directive.html. Encyclopedia of business Management, taken the 20th of May 2010. 74 Since half of the fixed-term workers in Europe are women, the agreement wants to improve equality of opportunities between men and women.

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Fixed-term contracts are becoming more and more common in the workforce. The implementation is easy and flexible for employers according to their specific needs, at the same time workers are protected in a better way. In the fixed-term Directive, the EU balanced the need to remove certain restrictions to removal of employees, and at the same time, it guaranteed fixed-term workers equal treatment.

The main characteristics of the fixed-term contract under the EU Directive are the following:

3.2.1 The Personal Scope of the Directive

The directive covers all workers that signed a fixed-term contract. According to article 2, services rendered in the context of initial vocational training and apprenticeships are outside of the scope of the FTC.

3.2.2 Principle of Non-Discrimination

The FTC states that fixed-term worker's terms and conditions must be no less favorable than those of a comparable permanent employee unless the difference can be justified objectively75. The conditions of particular situations should be the same for employees independently the contract they subscribe with the employer. Temporal workers have the specific right not to be treated less favorably in relation to any service qualification relevant to a condition of service or any training opportunity.

Section 4(2) of the Directive includes pro-rata principle expressing that it should be applied to fixed-term workers to assure equal treatment among all the work population.

75 Article 4, Council Directive on fixed-term work.

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In case of different treatment between permanent workers and fixed-term ones, it is clear that one objective justification applies. The following test presents a four- stage process to determine whether there is objective justification:

(a) There must be a clearly defined business need that shows measurable benefits arising from unequal treatment;

(b) The requirement or condition that leads to unequal treatment must be an appropriate way of achieving that business need;

(c) The requirement or condition must not be tainted by discrimination in any way;

(d) The benefit to the business must far outweigh any discriminatory impact on the individual.

This test is also applicable in cases and the equal treatment of part-time workers.76

3.2.3 Prevent Abuses

According to the Directive, to prevent abuses of the fixed-term employment model or successive renewals, it is important to have clear reasons that appropriately justify the use of this form of work to ensure that it will continue to be considered an exception. Pursuant to article 5 of the Directive, Member States should adopt measures to prevent possible abuses of the fixed term contract based on the following criteria:

(a) It must have an objective reason to justify renewals or this type of relationship.

(b) The maximum total duration of the successive fixed-term contracts or relationship.

76 http://www.jrank.org/business/pages/597/Fixed-Term-Contracts-Directive.html

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(c) The maximum number of renewals in this type of contract.77

It is also important to underline that Member States, after consultation with social partners can define when fixed-term contracts are considered successive and the possibility to convert it into an indefinite period of time. In this regard the Directive rules that Member States should use this type of contracts under particular circumstances protecting workers and imposing rigidity in fixed-term contract despite their flexibility.

3.2.4 Information and Employment Vacancies

Article 6 of the FTC obliges Member States to establish regulations that oblige employers to inform fixed-term workers about available vacancies to ensure that they are granted the possibility to access a permanent position. The information must be provided in public and general announcement that allows workers to have information on future job possibilities.

Pursuant to the directive, employers should also facilitate fixed-term workers with access to training opportunities that improve their skills. The security and protection for workers offers employees the possibility to enter a contract with an indefinite period of time.

3.2.5 Case Law 3.2.5.1 General Comments

Three very important cases of the European Court of Justice –„ECJ‟- interpreted and modulated the Directive on fixed-term work. The most important parts of the statements will be presented to explain the understanding of the principles of this type of flexible employment contract.

77 Article 5 (1) (a), Council Directive on fixed-term work.

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3.2.5.2 Judgments 3.2.5.2.1 Konstantinos Adeneler and Others vs. The Greek public organization (Ellinikos Organismos Galaktos) – Successive Contracts 78

Facts

The Greek public entity (Ellinikos Organismos Galaktos) was hiring public officers under fixed-term contracts. In order to avoid successive fixed-term contracts, it established the practice of terminating the fixed term employment contracts, and after a period of twenty days subsequently entering into a new fixed term contract with the same employee who had been originally discharged. A Greek statute provided that fixed-term contracts could be terminated under objective reasons when the conclusion of such a contract was required by a provision of statute or secondary legislation79.

Considerations of the Court

The ECJ ruled that this national legislation was contrary to the Directive because it did not adequately protect “short-time” workers. On the contrary, national regulation was considered an “objective reason” to terminate the labour relation. It added that "a national provision which merely authorizes recourse to successive fixed-term employment contracts in a general and abstract manner by a rule of secondary legislation is not following the requirements.”

If the objectives reasons are not clear enough, the contract "carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible80". The ECJ stated that the objective reasons in relation to the justifiable use of fixed-term contract are all the precise and concrete circumstances

78 Case C212-04 Konstantinos Adeneler and others, ECR 2006, 6057 of the ECJ. 79 Blanpain Roger and Others (2009), p. 72. 80 http://www.simonbusuttil.eu/default.asp?module=news&id=10246, taken from the webpage of Simon Busuttil, a member of the European Parliament the 20th of May 2010.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union characterizing a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.81

The ECJ ruled that “all the authorities of the Member States are subject to the obligation to ensure that provisions of Community law take full effect”.82 The ECJ determined that the rules applicable for the FTC are applicable the same for private and public employers. “It should be clear that the Framework Agreement can apply also to fixed-term employment contracts concluded with public authorities and other public sector-bodies. (…) the scope of the Agreement is conceived in broad terms, covering generally fixed-term workers who have an employment contracts defined in law, collective agreements or practice of each Member State”.83

Judgment

The Article 5, 1, a of the framework agreement on fixed-term work Directive is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State.

The concept of objective reasons within the meaning of that clause must be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out. 84

Comments on the judgment This case is probably the most important judgment of the Court related to the FTC Directive and exposing the limits to it. The Court ruled important limits for the use of fixed-term contracts preventing abuses. It is important to underline that the definition of objective reasons made in the judgment was a clear sign of rigidity towards the protection of the workers in this flexible contract.

81 Case C212-04 Konstantinos Adeneler and others, ECR 2006, 6057 of the ECJ. 82 http://www.eurofound.europa.eu/eiro/2009/10/articles/gr0910039i.htm 83 Blanpain Roger (2010), “European Labour Law”, Wolters Kluwer, Law and Business, p. 467. 84 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62004J0212:EN:HTML

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It is not only important to balance flexibility and security guaranteeing equal treatment. The practical mechanisms to prevent abuses are essential to protect employees performing flexible employment contracts. That is why the Court concluded that a national legislation could not be an objective reason to end a fixed-term contract.

Finally, it is also relevant to underline the personal scope that the Court gave to the FTC including employees of the public sector. This is a result of the application of the principle of equal treatment and the protection of workers.

3.2.5.2.2 Mangold Werner vs. Rudiger Helm – Equal Treatment85 Facts

A petition was filed to the Court for an opinion.

According to German Law, a fixed-term contract could be concluded only when there were objective grounds for so doing. However, the need for objective justification does not apply to fixed term contracts for workers older than 52 years. This law was justified for reasons of labour market and to promote the integration into working life of the older unemployed.86

Considerations of the Court

For the purposes of the analysis, the focus will be only on aspects of the case that relate to the interpretation of the FTC.

The Court confirmed the exceptional nature of the fixed-term employment contract and the fact that indefinite contracts are the general rule, highlighting that the classic concept of employment contract with an indefinite period of time “is a major element in the protection of workers, whilst the fixed-term contract may satisfy the needs of the employers as much as the workers in certain

85 Case C144-04, Mangold Werner, ECR 2005, 9981 of the ECJ 86 Barnard Catherine (2006), “EC Employment Law”, Oxford University Press, p. 482.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union circumstances”.87 In regards to the possible issue of age discrimination posed by the statute, the Court held that the Directive allows Member States to have different treatment in national law if in the context of national law, they are justified objectively and reasonably employment policy and labour market objectives.88

Comments on the judgment This case is presenting the position of the Court highlighting the importance of maintaining the rigid concept of employment with indefinite period of time. In the judgment, the Court insists in the general rule concluding that fixed-term contract is an exception. Rigidity is again defended by permitting flexible contracts only under strict requirements (objective reasons, equal treatment, etc).

3.2.5.2.3 Impact vs. Minister for Agriculture and Food – Equal Treatment89

Facts

Mrs Laing started work as a community support officer for the council. After some time, she was dismissed for refusing to obey an instruction, for his general attitude, and because of the breakdown of his relationship with his manager. He brought claims for race discrimination and victimization.

Considerations of the Court

The ECJ interprets one of the aims of the Directive in Fixed-term work which is the contribution to the quality of life of the workers in the following terms: “fair remuneration sufficient for a decent standard of living for themselves and their

87 Case C144-04, Mangold Werner, ECR 2005, 9981 of the ECJ 88 Blanpain Roger (2010), p. 473. 89 Case C268-06, Impact , ECR 2008, of the ECJ

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union families”.90 It also manifested the direct effect of the non-discrimination clause in the Directive, which is sufficient to be relied upon by an employee before a national court. As equal treatment constitutes a principle of Community law, it cannot be interpreted restrictively.91

Comments on the judgment The Court made an analysis on one of the principles of the FTC Directive that is equal treatment. Fixed-term contracts are an exception of the general rule and must comply with the principles of non discrimination to protect workers from having a different treatment compared with employees performing the same job but with indefinite period of time contracts. The link between exceptionality and equal treatment permit to have flexible contracts with protective measures for employees.

3.3 Directive Part-Time Work

Initially, the European Commission had envisioned a project of a Directive governing all types of employment contracts atypical-work including temporary workers, short term contracts, home-work, tele-work and seasonal-work, but due to the impossibility of reaching an agreement, the European social partners, following community law, achieved one of the first agreements on the 15th of December of 1997 which is precisely the Directive on part-time work. This Directive was possible as it was one of the conclusions of the European Council meeting that took place in Essen, emphasizing the need for measures to promote equal opportunities for men and women and “increase the employment intensiveness of growth, in particular by more flexible organization of work in a way which fulfils both wishes of employees and the requirements of

90 Case C268-06, Impact , ECR 2008, of the ECJ 91 http://www.etuc.org/a/4879

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union competition”.92 The Part-time Work Agreement93 (“PTW”) was the first step in the EU to achieve consensus amongst the social partners on other kinds of employment contract. After reaching the agreement, the European Parliament invited the Commission to submit proposals for Directives on Fixed-term Contracts, Temporary Work Agencies and other forms of flexible work.

The Directive had two aims. The first one is to assure equal treatment of part-time workers defending the non-discrimination principle and improving their quality of work. The second one is to improve the regulations so that flexibilized work allow employers and workers to organize time according to the needs of both parties performing the employment contract.94

The preamble of the Directive exposes the willingness of social partners to not only set up a general framework for the elimination of discrimination of part-time workers but also improve and develop opportunities of part-time work according to the needs of employers and workers. This Agreement was motivated also in the need to regulate the positive aspects of part-time work. Social partners recognize “the importance to measure which would facilitate access to part-time work for women and men in order to prepare for retirement, reconcile professional and family life, and take up education and training opportunities to improve their skills and career opportunities for the mutual benefit of employers and worker”95(text highlighted by the author). This type of employment contract has a social and a gender inclusion perspective in the sense that it promotes the creation of conditions that could lead to employees in achieving balance between professional

92 Council Directive 1997/81/EC/ of 15 December of 1997 concerning the framework agreement on part- time work, numeral 4 of the preamble in the annex. 93 Council Directive 1997/81/EC/ of 15 December 1997 concerning the framework agreement on part-time work

94 Blanpain Roger (2009), p. 170 95 Council Directive 1997/81/EC/ of 15 December of 1997 concerning the framework agreement on part- time work, numeral 5 of the preamble in the annex.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union and private life. It also improves the quality of work as employees can have time for training and education while employed.

The main characteristics of the fixed-term contract under the EU Directive are the following:

3.3.1 Principle of Non-Discrimination As in the Fixed-term Agreement, clause 4 of the part-time work Agreement protects employment conditions by providing that part-time workers shall not receive less favorable treatment than that provided to employees performing indefinite period of work contracts. The pro rata temporis principle is also applicable.

The modalities and specific regulation of the clause should be made by each Member State according to the EU legislation, national law, collective agreements and uniform practice.

3.3.2 Opportunities for part-time workers Article 5 of the PTW exposed the obligation of Member States and social partners to identify and review possible obstacles which may limit the opportunities of part- time workers. The inclusion in the Agreement of the prohibition to end the employment relation with a valid reason when the worker refuses to change his employment contract from full-time to part-time of vice-versa is significant.

The provision imposes a non-binding obligation for employers to help workers to change from one type of employment relation to the other one, facilitate access to part-time work, and to give information to employees about possible vacancies including others. 96 This was a way of acquiring flexibility without forgetting the importance of security for workers.

3.3.3 Case Law

96 To study the complete lest, see clause number 5, nummer 3 of the Council Directive 1997/81/EC/ of 15 December of 1997 concerning the framework agreement on part-time work.

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3.3.3.1 General Comments

The PTW has two important cases from the European Court of Justice that deserve some words to show the interpretation of the Directive.

3.3.3.2 Judgments

3.3.3.2.1 Nicole Wippel and Peek & others vs. Cloppenburg – Equal Treatment 97

Facts

A petition was filed to the Court for an opinion. The question was the following:

An employee (Mrs Wippel) that performs a part-time work “according to needs”98 can result in a less favorable treatment comparable with workers that perform full- time jobs?

Considerations of the Court

The judgment interpreted the principle of non-discrimination of the article 4 of the PTW. The Court made a distinction explaining that full-time employees under a labour relation work for 38.5 hours per week with clear schedule and salary. This relationship differs from the situation of Ms. Wippel in the sense that the former could not refuse offers of works while the later could do so. The Court held: “In circumstances in which the two categories of workers are not comparable, a contract of part-time employment according to need which makes provision for neither the length of weekly working time nor the organization of working time does not constitute an indirectly discriminatory measure within the meaning of clause 4 of the Agreement”.99 The Court explained that the full-time-work-contract

97 Case C313-2002, Nicole Wippel vs. Cloppenburg GmbH, ECR 2004, 9483 of the ECJ 98 The contract that Ms. Wippel had was according to the need which means that the work was remunerated by hour and was paid only in the hours that were actually worked. She had the choice of whether to accept or refuse the work offered by the employer. 99 Case C313-2002, Nicole Wippel vs. CLoppenburg GmbH, ECR 2004, 9483 of the ECJ

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union is not comparable with the contract that Ms. Wippel performs according to the PTW so the length and working time would not result in a less favorable treatment.

Judgment

The Court decided that Nicole Wippel did not have a less favorable treatment comparable with workers that perform full-time jobs.

Comments on the judgment In the effort to strike the balance between the need for flexibility and the need to ensure the equal treatment of employees performing services under part-time agreements, the Court tilts the balance towards the employer‟s side. The interpretation of the Court can be deemed to be harmful to the principle of equal treatment and the protection of employees performing part-time jobs. The Court makes a distinction between workers under „flexible‟ contracts and workers that perform employment contracts for an indefinite period of time. This differentiation is detrimental to the balance of security and flexibility because it is clear that part- time workers will be treated in different way under the arguments stated by the Court.

The principles of equal treatment must apply in all circumstances so that part-time workers are not discriminated without objective justifications. The fact that full- time workers cannot refuse to work offers while part-time could do so is not a complete justification to admit the possibility of different treatment. Objective justifications must be clear and sufficient enough to approve a different behavior towards part-time workers.

3.3.3.2.2 Michaeler Case – Removal of Obstacles on Part-Time Work100 Facts

An Italian law imposed the obligation on employers to send a copy of the part-time contracts it entered into to the public authority within a specified treatment of time. The violation of this legal duty would give rise to monetary fines. The

100 Case C055-2007, Othmar Michaeler and Others vs. Amt Fur Sozialen, ECR 2008, 3135 of the ECJ

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union rationale of the requirement according to the Italian authorities was to combat unlawful work.

Considerations of the Court

The Court ruled that this requirement was in violation of article 5 of the Agreement in the following words: “Requiring undertakings to send to the competent authorities a copy of every part-time employment contract, sets up an administrative obstacle likely to limit the opportunities for part-time work”.101

Judgment

The Court decided that the Italian provision was against clause number 5 of the Directive on part-time work.

Comments on the judgment The case is consistent with the importance of removing all kind of obstacles for part-time workers. Part-time employees should not have any national limitations to perform their job as a measure of protection. Rigidity in this case was balanced against an extreme flexible national provision.

3.4 Temporary Agency Work Directive Temporary work agencies were excluded from the scope of the Directive in fixed- term contracts because in that time (year 1999) it was believed that the negotiation with social partners would be faster if only temporary work issues would be discussed. However, conversations to achieve consensus regarding temporal work could not reach a rapid result. This situation led the Commission to propose a draft that, following EU rules, was sent to the European Parliament. The text remained blocked for over 6 years until the 19 of November of 2008 when the European Parliament adopted the Directive named “Temporary work: protective framework for workers, relationship with the temporary agency”.102

101 Ibidem. 102 Blanpain Roger and Others (2009), p. 61.

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The Temporal Agency Work Directive103 -“TAW-” was the result of the efforts of the European Commission to achieve the Lisbon Strategy Agenda objectives. The European Council considered that the different and new forms of employment contracts with diversity in the models are a good combination between flexibility and security that would contribute to adaptability.104 This was understood once again as a response of law to the evolution of society. The EU had to adapt to the globalization and to the open markets and one way of doing so was regulating flexible labor contracts.

The Directive establishes a protective legal framework for temporal agency workers with non-discriminatory provisions, respecting the diversity of the labour markets and different forms of employment to improve the quality of temporal agency work. There must be a guarantee that basic work conditions of workers under temporary agencies would have the same rights as direct employees performing equal jobs. Safety and healthy provisions must also apply to temporal agency workers.105 There is also a very strong will to contribute the creation of new employment behind the Directive. The main characteristics of the temporary work under the EU Directive are the following:

3.4.1 Principle of Non-Discrimination Self-evidently, the most important principle in the Directive is the equal treatment that a temporal agency worker must have. These rules must also comply, according to article 5 (1) of the TAW, to:

. The protection of pregnant women, nursing mothers and protection of children and young people.

103 Directive 2008/104/EC of 19 November 2008 concerning temporary work of the European Parliament and the Council. 104 Directive 2008/104/EC of 19 November 2008 concerning temporary work of the European Parliament and the Council. Numeral 9 of the Preamble. 105 For further details, see Directive 2008/104/EC of 19 November 2008 concerning temporary work of the European Parliament and the Council. Numerals 12, 13 and 14 of the Preamble.

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. Equal treatment based on sex, race, religion, beliefs and disabilities among others.

The exception of the principle is:

. When a temporary worker that has an indefinite period of time contract with an agency continues to be paid in the period between assignments.

Further, article 5 (5) mandates Member States to adopt all the appropriate measures to prevent the use of successive temporal contracts.

3.4.2 Restrictions and prohibitions of temporal work Article 4 of the Directive exposes that prohibitions and restrictions on temporal agency work may only be possible if:

. They are justified only on grounds of public interest; . For health and safety requirements; . For the protecting of temporary agency workers from possible abuses.

It is also very important the inclusion of social partners to review with Member States any possible restrictions or prohibitions of temporary agency work.

3.4.3 Access to employment, Collective Facilities and Vocational Training Article 6 of the Directive imposes the obligation for the companies using temporal agencies to inform any vacancies so that temporal workers can have the same opportunities than direct employees in finding a permanent job. General announcements in public places of the work place must include the possible vacancies. This is a typical example of flexibility combined with security for employees in the search of more stable contracts.

Temporary work shall be without any charge for the employees to be recruited or for concluding the employment contract.

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Another important issue that has to do with the non-discrimination principle is the possibility that employees in mission may use the amenities and infrastructure of the undertaking in the same conditions as the direct employees. This right can be limited only if there is an objective reason.

Finally, workers performing their task under a temporary agency have the right to access of training in TWA and the undertaking in order to improve the career development and employability.

3.4.4 Representation of Temporal Agency Workers Temporal workers shall count, following the conditions of each Member State, for the calculation of the threshold above which bodies representing workers provided are to be formed at the agency and also at the user undertaking.106

3.4.5 Other Characteristics . Article 8 of the TAW Directive imposes to the user undertaking the obligation to provide full information of temporary agency workers to employee‟s organizations following national and EU law.

. According to the preamble, numeral 20 of the Directive, the restrictions and prohibitions of temporal agency work are without prejudice to national rules of Member States that prohibit employees on strike being replaced by temporal agency workers.

. The Directive also request Member States to adopt administrative or judicial procedures to safeguard temporal work and provide effective and proportional penalties in cases of violation of the Taw‟s principles. (number 21 of the preamble).

3.5 Framework Agreement on Telework

106 Blanpain Roger (2010), p. 483.

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The Framework Agreement on Telework107 -“TAW-” is the consequence of the evolution of society. The adaptability in flexible markets and under new technologies made possible the performance of a job in a different place. There is an old Greek proverb that states: panta rei; “which means everything moves. There is, indeed, a perpetum mobile. The role of law should run closely to the rule of law. The importance of the trends of society must been followed”108. Tele-work is a good example of the adaptability of law as society evolutes.

The European Directive defines tele-work as a form of organizing or performing work, using information technology, in the context of an employment contract, where work, which could also be performed at the employer's premises, is carried out away from those premises on a regular basis109. The TAW signed by ETUC, UNICE/UEAPME and CEEP the 16 of july of 2002 is a result of the efforts to support the Lisbon Agenda110 in the will to modernize and update all forms of employment relations that will improve the quality of life of the employees with a more competitive European economy.

After 8 months of negotiations, this document led to the first EU framework agreement signed by European social partners. It is implemented by their members and not by the EU regulation according to national law and practices.111

The TAW was the result of the new strategy of social partners to modernize the employment relation according to developments and technological progress so that the work contract can be more favorable to employees and workers. In this case the agreement had the aim to achieve productivity and competitively searching for

107 Framework Agreement on Telework signed by ETUC, UNICE/UEAPME and CEEP the 16 of july of 2002. 108 Blanpain Roger, “The End of Labour Law?” a Conference for Marco Biagi. 109http://europa.eu/legislation_summaries/employment_and_social_policy/employment_rights_and_work_ organisation/c10131_en.htm, taken the 20 of April from the organization “Europe, Gateway to the European Unions. 110 In line with the Lisbon Agenda objectives, Europe must make a transition to a knowledge-based economy and society. 111 The Agreement it is considered soft law because is not legally binding and Member States should apply it according to their rules and practices without any EU law legally enforceable.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union the correct balance between flexibility and security.112 It also had a social aim, so that disabled people, students, and mothers could be included in the workforce.

The agreement has the objective to establish a framework at European level to regulate work conditions to tele-workers. The agreement provides protection to employees that perform their work contract in places different than the premises of the employer.

The main characteristics of the TAW are the following:

. Voluntary nature. Tele-working is voluntary for the employer and the employee. This kind of employment relation can be required in the beginning of the job (in the work description) or it can come subsequently (in this case it may need the consent of the worker).113

. Employment conditions. This right is a development of equal treatment regarding employment conditions in the sense that tele-workers must have the same rights and benefits that are in the regulations and collective agreements. Complementary agreements can be done bearing in mind the peculiarities of tele-workers.

. Data Protection. The employer is responsible for adopting the suitable measures to ensure the protection of data used by the tele-worker. The employer also will have to inform in particular any limitations on the use of equipment and also the eventual sanctions in case of non-compliance.

112 Blanpain Roger (2010), 484. 113 According to professor Blanpain, in his Book European Labour Law, the change to tele-work as such does not affect the employee status and in case of refusal of an offer, the employer can not consider this situation as a valid reason to end the employment relation. For further details, consult Blanpain Roger (2010), p. 485.

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. Privacy. The employer has to respect the privacy of tele-workers. Monitoring systems are valid only if the supervising scheme is proportional and in accordance with EU Regulations114.

. The employer must provide, install and maintain the necessary equipment for the performance of the job (including the software and other essential tools to maintain the technological instruments functioning).

Tele-workers have to take good care of the equipment provided using it only for the job.

. Health and safety. The employer is responsible for the protection of the occupational health and safety of the tele-worker in accordance with EU Directives.115 The employer and workers representatives have the right to access the tele-work place to verify the applicable health and safety provisions.

. Organization of Work. The tele-worker is responsible and manages the organization of his working time. The principle of equal treatment applies again in the sense that tele-workers should have a workload equivalent and comparable to workers at the employer's premises.

. Training of tele-workers. Tele-workers should have the same access to training and career development as comparable workers at the employer's premises and are subject to the same appraisal policies.116 . Collective rights: The principle of equality plays again a central role in Tele- work in the sense that employees have the same collective rights than workers that perform their jobs in the premises of the employer. Tele-

114 Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment. 115 Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work 116 Blanpain Roger (2010), 487.

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workers should not have any obstacles in the communication with workers' representatives.

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CHAPTER 4. Comparative Analysis

This chapter compares how the flexible employment relations are regulated in the Colombian and the European legal frameworks. Special attention is given to the way in which each system handles the balance between security and flexibility. Given that Colombia has a national legal system while Europe has a community- level framework, it is clear that the regulations have different effects; however the principles and main characteristics are comparable. Furthermore, the comparison focuses only in the main differences and principle similarities and leaves aside peculiarities and minor details.

The description of each analysis will enclose tables in the Annex that will present the comparative study of each employment relation in brief.

To have a summarized picture of the study, the chapter presents at the end, one chart that illustrates the position of the employment contracts in the dilemma of security vs. flexibility and the levels of equality.

4.1. General Overview The Colombian and European legal frameworks both have an indefinite period of time as the standard. As a result, labour agreements that do not have explicitly the term or special conditions are automatically considered to be for an indefinite duration. Colombia understands security as the possibility to maintain jobs for a long period of time. In the European Union, the understanding of protection goes farther; it is also guarantying equal treatment, training, implementing state policies for unemployment and a more dynamic market.

The European Directives and the Voluntary Agreement on Tele-work are, without prejudice of the Member States, to apply or introduce national legislative provisions. These regulations may be more favorable to workers; however, under no circumstances the implementation of the Directives may be sufficient grounds to justify reduction in the general level of protection for the employees in the field

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union covered by the Directives. This is an example of rigidity and protection in flexible employment contracts finding a balance between security and economic efficiency. The Directives also have special clauses that protect “flexible” workers from discrimination and possible abuses of the figure. Colombian legal regulation remains silent towards the constitutional principle of equal treatment in part-time and fixed-term contracts.

Furthermore, it is important to say that social partners in the European Union have a very important role in all the Directives and the Voluntary Agreement on Tele- work. Functions such as consultation, follow up, supervision and direct initiative among others, show the importance and involvement of workers and employers organizations in the construction of the framework for flexible employment contracts. In Colombia, social partners can be consulted prior to any legal proposal but there are no binding instruments as in Europe to involve them in the construction of labour law and social security.

4.2. Fixed-term Contracts

Note. In Annex 1, a table presents in a summarized way, the differences and similarities of the Colombian and European frameworks on fixed-term contracts.

The EU Directive of fixed-term contracts underline the fact that indefinite duration is the general rule, while fixed-term work is the exception. These contracts are becoming more and more common as their implementation is easier and workers are protected in a better way.

The European fixed-term contracts directive manages to have a positive balance between rigidity and flexibility reducing restrictions in terms of jobs stability but at the same time guarantying employees‟ equal treatment and the possibility to extend their contract duration by renewing the term. Even though the Colombian

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Constitution includes the fundamental right of equality, the regulation of fixed-term contracts does not mention any protection against possible discrimination.

The main objective of the EU Directive related to fixed-term contracts is the maintenance of equal treatment and the prevention of abuses against fixed-term workers. In contrast, the Colombian legislation does not emphasize on equal treatment or on the prevention of abuses but on the renewals and the ways to apply this type of contract. Europe prohibits unlimited renewals of the fixed-term contracts imposing Member States the obligation to determine the maximum number.117 In Colombia there is not such a prohibition, fixed-term contracts can be renewed as many times as the parties desire. The Colombian practice of unlimited renewals does not represent illegality and does not imply that these contracts are extended to an indefinite period of time.

Fixed-term contracts in Europe pursue security by guaranteeing training to fixed- term workers. This is a way of improving the conditions of the employees helping them to find quality jobs in the future. The employment is introduced in the outplacement market helping workers to improve their chances in future jobs by means of such protective measures. In Colombia, there are no specific rules for training fixed-term workers showing a less protective system compared with the European one.

Finally, European employers must inform permanent vacancies to fixed-term workers as an important measure to facilitate the conversion of fixed-term to indefinite employment contracts. In Colombia, this obligation does not exist.

Fixed-term Contract in Public Institutions The Colombian constitution and the labour framework dictates that indefinite period of employment contracts are the general rule; however the State

117 Article 5 (1) of the Council Directive 1999/70/EC/ of 28 June 1999 concerning the framework agreement on fixed-term work rules the obligation to Member States to adopt measures such as objective reasons justifying the renewal, maximum total duration of successive fixed-term contracts or the number of renewals in order to prevent abuses of the model.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union institutions do not follow this principle. For example the Ministry of Work (Ministerio de la Proteccion Social) is hiring public servants under fixed-term contracts for permanent jobs. In the EU, the situation is similar; the European Commission recruits fixed-term employees to perform permanent jobs, being repeatedly replaced by fixed-term contracts. This is the typical example of permanent employment without security for workers. In 2007, all the European Institutions, other bodies and agencies together employed 37,296 permanent officials and 5,252 temporary officials118.

According to the Tribunal de la fonction Publique de L‟union Européenne, the directive on Fixed-term contracts does not apply to European institutions since directives are addressed to Member States.119

In words of Professor Blanpain: “it is amazing that the principle of the Agreement on Fixed-Term Employment Contracts does not apply to the European Communities, which engage thousands of workers for successive fixed-term contracts in order to pay less than civil servants. (…) The European institutions ask Member States to live up to standards, which they themselves do not respect”120.

4.3. Part-time Contracts

Note. In Annex 2, a table presents in a summarized way, the differences and similarities of the

Colombian and European frameworks on part-time contracts.

In Europe, part-time work is ruled under a Directive that sets out general principles and concrete characteristics for this flexible employment relation. Part-time work modernizes the labour framework assuring equal treatment for part-time workers. On the contrary, in Colombia the regulation is abstract and has no specific rules.

118 Blanpain Roger (2007) “Fixed-term employment contract? Equal payment?”At the request of the Trade Union of European Officials, CONF-SFE, Brussels 119 For further details, see Tribunal de la fonction Publique de L’union Européenne, 4 June 2009, Vahan Adjemian vs. Commission, F-8/08. 120 Blanpain Roger (2010), p. 468

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Part-time workers have to appeal to the general rules of employment relations without any specific measures of protection.

Both, in Europe and Colombia, written stipulations of part-time employment relations must be done in order to give full effects to this contract.

In the EU Directive, part-time work is very focused on compliance with the non- discrimination principle. It also has a central focus in granting part-time workers opportunities to perform full-time contracts and consultation among others. In Colombia, the articles of Act 50 of 1990 remain silent with respect to the provisions of equal treatment and opportunities to part-time employees. The non- discrimination right may be applied as a subsidiary measure invoking the Constitution. There is only one article of the Colombian labour reform (19 of the Act 50 of 1990) that establishes the possibility to recognize a lower wage when the worker performs a job under the maximum working time.

According to the Directive (clause 5, consideration 2), a part-time worker‟s refusal to transfer from full-time to part-time or vice-versa should not in itself constitute a valid reason for terminating the employment contract. This is a sign of rigid framework that protects workers from abuses of employers when performing part- time jobs. In Colombia, this possibility is not considered, leaving the parties of the labour contract the possibility to modify the employment relation autonomously and at free will.

4.4. Temporary Work Agencies

Note. In Annex 3, a table presents in a summarized way, the differences and similarities of the Colombian and European frameworks on Temporary Agency Work.

The Directive establishes a harmonized European level framework in temporary agency workers introducing minimum requirements applicable throughout the Community. This is a flexible framework that must be regulated by each Member State according to their national rules. As a result of multiple abuses of temporal

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union agency work, in Colombia the regulations are protective and rigid demanding specific requirements in the commercial contract of the TWA and the user undertaking.

Temporary agency work in Europe and Colombia are considered an exceptional form of employment and shall be without any charge for the employees. There are also other similarities such as the prohibition to replace direct employees on strike for temporary agency workers. Another common point of both legal frameworks is the application of administrative and judicial procedures to safeguard temporal agency work in the prevention of abuses.

The EU Directive does not include time limit for temporary agency work. Member States must implement the maximums periods. In Colombia, a temporary agency worker may perform the same task for the same or other TWA for a period of maximum one year. Another difference is the inexistence of specific requirements for temporary agency work in Europe. The Directive only defines the flexible contract and the way in which it may be protected. In Colombia temporal agency work can be performed only under precise circumstances.121

As in other flexible forms of employment, the non-discrimination principle is fundamental in the EU Directive. The principle of equal treatment is focused on guaranteeing equal conditions to temporary agency workers and protection from any kind of discrimination. The protection of equal treatment in Colombia is narrower and is focused on wages (Article 79 of Act 50 1990 rules the principle of equal pay for equal job). The Colombian framework also does not include principles of equal treatment or non-discrimination provisions between permanent and temporary agency workers. Differential treatment may occur and a temporal agency worker will have to appeal to the constitutional principle of equal treatment in case of potential discrimination.

121 In occasional situations, when the company requires a replacement of staff and there is an increased demand of production.

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Another difference between both systems is the importance that the Directive gives to training temporal agency workers in the user undertaking or the temporal agency. The increasingly ongoing training to these workers is a protective measure that assures a faster outplacement. In Colombia there is no specific rule on the matter.

Finally, it is important to highlight the role of the unions in supervising this type of flexible employment contract in Europe. The user undertaking has the obligation to provide full information to workers organization regarding the use of temporary agency workers. This is another protective measure for employees to prevent abuses and discrimination. The Colombian unions do not have this faculty.

4.5. Tele-work

Note. In Annex 4, a table presents in a summarized way, the differences and similarities of the Colombian and European frameworks on Tele-work.

Tele-work is a useful instrument in the era of information that improved the conditions of unemployed population unable to access the labour market before (disabled people are a good example). Flexibility and security go together in tele- work increasing the quality of jobs and the possibility of saving costs to employers (in cases where the workers use their own tools for the performance of the job).

The voluntary agreement was a result of the European strategy to modernize employment relations balancing flexibility and rigidity. The classical labour contract was challenged by a more productive and competitive one. The agreement on tele- work aimed to conciliate professional and personal life with greater autonomy in the accomplishment of tasks. In Colombia, the Act number 1221 of 2008 was conceived to assist the unemployed vulnerable population (including situations of forced displacement, living in geographical isolation, single mothers, imprisoned population and people with death threats). The Colombian legal framework offers

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union different types of tele-work. In Europe, the voluntary agreement is a general regulation that must be implemented by the Member State in accordance to national procedures and practices.

In both regulations, health and safety matters were included and must be applicable to tele-worker. Employers also have to apply the same rules to employees performing their job in the place of the business, and to tele-workers. In Europe, the principle of non-discrimination guarantees equal employment conditions to tele-workers. In Colombia, the principle of equal pay applies; however, the legislation does not include specific protection against discrimination or equal treatment for the rest of the employment conditions.

The Colombian Act 1221 of 2008, excludes tele-workers from the maximum working time regulation (tele-workers will not receive supplementary work). In Europe, the voluntary agreement explicitly states that employment conditions of workers performing their job in the employer‟s premises must be equivalent to tele-workers.

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4.6. Chart and Conclusions The following chart is a summary of the comparative investigation. Employment contracts are included in the graph with the following parameters:

 The horizontal line evaluates the flexibility or security of the contract.  The vertical line shows the degree of equality in the labour contracts.

The idea is to present the balance that the European and Colombian legal frameworks give to each employment relation.

To understand the diagram, it is important to first locate down on the left the indefinite period of time contract (IPC). This type of employment relation guarantees the highest protection on equal treatment and is the most secure form of employment. The other extreme is in the upper right side of the chart with the informal non-labour contract (IFC). This general contract is totally flexible and has no protection against discrimination. In the center of the graph, the indefinite period of time contract in the United States of America (US-IPT) shows a balance between flexibility and security without effective measures of equality.122

Having clear the extremes of the chart, the explanation of the European and Colombian contracts will follow.

122 The United States of American´s labour regulation has the indefinite period of labour contracts as general rule, however, employers can dismiss at free will. Discrimination can appear because different treatment is not prohibited as it is in Europe.

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The figure illustrates that European employment contracts are in the middle of the figure achieving balance between flexibility and security having equal treatment as a fundamental guideline123.

In Colombia, the figure it is highlighted by elevated flexible contracts with low protection on equality.124

123 Europe: I) Fixed-term contracts (E-FTD) have the ideal balance loosing restrictions in terms of jobs stability but at the same time providing fix-term employees training and the right of consultation as protective measures. All this classification goes in hand with the respect to equal treatment. II) Part-time contracts (E-PTW) are slightly more protective as the regulation presents a central focus in granting opportunities to part-time workers to perform full-time contracts and equivalent rights on consultation. Non-discrimination principle is also fundamental in this kind of European flexible employment contract. III) Temporary Agency Work (E-TAW) Directive does not include time limit for temporary agency work (leaving Member State their regulation). This is a more flexible approach of protection of temporal agency workers in Europe; however, the non-discrimination principle applies equally as the other forms of flexible contracts. IV) Tele-work (E-TW) voluntary agreement has also a balance between flexible rules and protective mechanisms of work aimed to conciliate work and social life with greater autonomy to accomplish the tasks. Equal employment conditions are also a guarantee of the application of the non-discriminatory principle. 124 Colombia: I) Fixed-term contracts (C-FTC) are very flexible in Colombia as they can be renewed for indefinite number of times and there is no special protection against discrimination. The contract is very flexible without giving the worker protective mechanisms. II) Part-time contracts (C-PTW) are also very flexible as the legislation remains silent in provisions of equal treatment and equal opportunities to part-time employees. III) Temporary Agency Work (C-TAW) is the only flexible contract in Colombia that presents a very rigid legislation with protective rules to prevent abuses. However, the regulations do not include principles of equal treatment provisions. There is no training and right of consultation that could be as secure as the indefinite period of time. IV) Tele-work (C-TW) is the most unequal and flexible contract. The Colombian framework permits a distinctive treatment for tele-workers as working hours are not applicable. It is also the most flexible figure as no protection for workers is clear (with the exception of the principle of equal pay).

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CONCLUSIONS

The legal institution of employment contracts is currently undergoing a conceptual crisis as a result of changes in labour markets, new technologies, globalization, the organization of production, and societal values. A historical and comparative perspective, however, indicates that the conceptual crisis is not a new phenomenon, and is a process that started from the industrial revolution of Europe and the world.

The evolution of the employment contract is and will continue to be a response to the tension between the need to provide a certain amount of stability for employees in the workplace (rigidity) and the need to ensure that the employers can allocate and organize efficiently the labour element within the enterprise (flexibility). The classical model of a work agreement that involved a male adult, working full time, for an indefinite period of time, was challenged by other forms of employment contracts. From the need to stabilize and develop the damaged economies of Europe after the wars using indefinite period employment contracts, the pendulum swung towards flexible employment relations as a response to the advent of globalization, the changes in economic competition, technological evolution and societal values.

The balance was struck closer to flexibility also as a result of the beginning of the era of knowledge and information, the reduction of the enormous workforce population of blue collar workers, the mass entry of women to the labour force and the high unemployment in the 1980‟s that lead to a critical attitude against the then current labour framework. Legislators around the world started to understand that flexible contracts could be a source of job creation and stabilization of the economy even though the workers enojy less stable employment contracts.

In Colombia, the major labour reform in 1990‟s maintained the classic concept of the employment contract as the general rule; nonetheless it included flexible agreements such as fixed-term, part-time and temporal agency work. The aim of

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union the reform was to modernize the labour framework in an attempt to make the country more business-friendly in an era of internationalization of markets and globalization, where competition for foreign investment and world trade is great. The principle of equal treatment was not a priority and the legislative efforts were focused on the precise regulation of the employment relations.

Flexicurity was the European approach, which entailed balancing security and flexibility through various mechanisms related to legislation, lifelong learning, active labor market policies, and modernization of social security systems. It provided workers with the sufficient flexibility to make fast, easy and secure transitions between different statuses in the labor market. At the same time, flexicurity offered the necessary flexibility to employers that needed to restructure and reorganize their business towards a more competitive and productive industry. Europe maintained as well the indefinite period of time contract as the general form of employment, however, the directives on fixed-term work, part-time work, temporary agency work and the voluntary agreement on telework responded to the need for a more flexible framework. The European Union ensured the application of the principle of non-discrimination between workers performing services under indefinite period contracts and workers employed under one of the flexible forms of contract. It also established a regulation to prevent abuses on such employment relations.

One of the main differences of the frameworks analyzed is the principle of equal treatment as a focal point in the directives of the European Union. It is a fundamental principle of European Law. Colombia, by contrast, presents a labour regulation focused on the establishment of concrete rules to regulate flexible contract without explicitly providing for a non-discrimination principle.

In Colombia there is also a clear absence of the role of social partners in the creation of labour law and social security. In Europe they play a protagonist role by creating, implementing, following up, consulting and presenting initiatives in the

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union fields of social policy and labour matters. This last difference is a good counterbalance that ensures equilibrium between rigidity and flexibility that Colombia does not have. This is probably a consequence of the different political structures of the two systems under comparison, one being of a quasi-federal nature which brings together law makers from very different jurisdictions and economies and where the need to ensure that the different voices of the many dissimilar interests groups are heard within the law-making process; whereas in the context of Colombia, a single jurisdiction where the interests of those who will be affected by the legislation are less heterogeneous, the need to ensure social participation is less clear.

As a consequence of the previous differences, the concept of protecting workers in Colombia is different than the European Union; while in Colombia rigidity is focused on guaranteeing indefinite period of time contracts and maintaining jobs for long period of time, in Europe it also manifests itself in the need to ensure equal treatment, training, implementing state policies for unemployment and a more dynamic market.

From the point of view of the author, the notion of employment stability that has always been implicit in the indefinite period contracts should evolve in the current circumstances to a broader approach to employment security where employers may offer also the possibility to acquire skills and networking that will enhance the employee‟s opportunities in the labour market. However, labour law through the regulation of employment contracts, should always guarantee a minimum floor of fundamental rights for workers independently of the economic circumstances and the needs of the market.

Colombia could find in the European regulation sufficient elements to “humanize” flexible employments contract by increasing the protection granted to employees through the principle of equal treatment and non-discrimination. The law maker should find manners to avoid that fixed-term contracts and tele-work in particular

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union are considered and used in practice by employers as tools to avoid grating the security to workers, and to ensure that they are utilized as a valid alternative in offering stable employment. Furthermore, equivalent conditions should not be construed to only comprise wage terms but also in equal treatment, job opportunities, possibilities to acquire skills and more stability. Colombia could have useful lessons from the European experience, particularly in defining job security as a way of dignifying the new forms of employment contracts.

The discussion on the optimal synthesis between the guarantees given to workers, job creation and competitiveness will continue to be decisive in the evolution of the employment contract. The balance between development and the values and rights that Europe and Colombia holds shows one more time that labour law is a result of power relations, and the correct balance will depend on how the employers, governments and employees organizations will persuade each other to achieve social justice accompanied with economic development.

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ANNEXES

Annex 1 Fixed-Term Contracts Comparison Table

Europe Colombia

The EU Directive of fixed-term contracts underline the fact than indefinite duration is the

principle, while fixed-term work should be the exception. Fixed-term contracts are becoming more and more common as their implementation is easier and workers are protected in a better way. The Fixed Term Directive of Europe, manage to have a positive balance between rigidity and flexibility when loosing restrictions

in terms of jobs stability but at the same time guarantying employees equal treatment and eneralities

G the possibility to extend the contract duration by renewing the term. Even though the Colombian Constitution includes the fundamental right of equality, the regulation of fixed- term contacts does not mention any protection against possible discrimination.

A contract whose duration does not The Colombian Labour Code in its article 47 appear explicitly is automatically defined presumes that all employment relations are for

as a contract of an indefinite duration. an indefinite period of time. Similarities

Main objectives of the Directive: The objective of the law is to regulate the use - Equal treatment of fixed-term employment contracts. However - Prevention of abuses there is not a specific rule for equal treatment or the prevention of abuses

The Directive limits the renewals to all The regulation of fix-term contracts in fixed-term contracts independently the Colombia limit the number of renewals (3) for

period of each contract. the ones that are stipulated for a period of time less than a year. The ones that have longer term have no limit and may be renewed for unlimited times.

Differences Fixed-term contracts pursue security by In Colombia there is no specific rule for guaranteeing training to fixed-term training fixed-term workers. workers.

According to the Directive, employers There is no obligation to employers to inform must inform vacancies to fixed-term fixed-term workers of possible vacancies. workers.

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Annex 2 Part-Time Contracts Comparison Table

Europe Colombia

Part time work is a Directive of the EU that sets out general principles and minimum

requirements for this kind of flexible employment relation. In Europe, the part-time employment relation has two fundamental and specific aims; from one side assuring equal treatment of part-time workers and form the other, improving the regulations so that flexibilized work allow employers and workers to organize their time in the best way. In

eneralities Colombia on contrary, the regulation of part-time contracts is abstract with no exclusive G rules. Part-time workers have to apply the general rules of employment relations without any specific measures of protection of abuses or discrimination.

Part-time agreements should always be In Colombia the same rule applies. written.

Similarities

Main objectives of the Directive: In Colombia on contrary, the very few articles - Non-discrimination of Act 50 of 1990 remain silent to provisions of equal treatment and opportunities to part-time - Equal opportunities to part-time workers. employees.

A part-time worker refusal to transfer from In Colombia this possibility is not considered. full-time to part-time or vice-versa should

Differences not in itself constitute a valid reason for termination the employment relation.

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Annex 3 Temporary Work Agencies Comparison Table

Europe Colombia

Temporary work in Colombia has a general framework in the Act 50 of 1990. There are also 3 later decrees that regulated temporary agency work imposing severe sanctions in case of abuses of this flexible figure. A similar situation took place in the EU where the Directive presented general terms for temporary work agencies. Each Member State had to

adopt the specific regulation for implementing the Directive. Generalities

Temporary work shall be free. Same in Colombia

Temporary Work Directive prohibits Same in Colombia Member States to replace direct workers

Similarities that could be in strike for temporary ones.

Administrative or judicial procedures to The organism in Colombia is the Ministry of safeguard temporal agency work. Work.

The Directive does not include the time A temporary agency worker in Colombia can limit for temporary agency work. perform the same task for the same or different TWA for maximum six months than can be renewable for one time for another six months.

Temporary Agency does not need to Temporary Agency must have only the social

have only the social object of placing object of placing employees. employees.

National regulations of Member States In Colombia, temporal agency work can be performed under the following circumstances:

Differences will implement rules to achieve the objective of the Directive. There are no . In case of casual, occasional, incidental or specific criteria to determine the transitional situations, which differ from the requirements for temporary agency normal activities of the employer. work. It only defines the flexible contract . When the company requires a replacement and the way in which it may be of staff that is on holiday, leave, or disability protected. due to sickness or maternity. . When there is an increased demand of production, transport, sales of products or goods, seasonal crop periods or providing services for a term that cannot be longer

than 1 year.

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Member States shall take appropriate In Colombia, the provisions are clear in the measures, in accordance with national restrictions of temporal workers providing the law to prevent successive assignments same service in the same or different TWA. designed to circumvent the provisions of the Directive.

Equal treatment is stated as one of the The Colombian framework does not include fundamental principles. principles of equal treatment or non- discrimination provisions.

Any changes to EU legislation of labour Social partners are not included in the follow- and social security matter should in the up, consultation, supervision or modification of first instance referred to the social rules. partners for their opinion.

In the EU Directive, the principle of equal The protection of equal treatment is more treatment is focused on guaranteeing narrowed and is focused on the principles of same conditions to temporary agency equal pay for equal job. workers and protection of any kind of discrimination.

Temporal agency work in the EU In Colombia there is no specific rule for pursues security by guaranteeing training training. in the user undertaking and the TWA (art 6 consideration 5).

Unions have a supervisory function in There is no such an obligation in Colombia. temporary agency work. The user undertaking has the obligation to provide full information to workers organization regarding the use of temporary agency workers.

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EMPLOYMENT CONTRACTS AND FLEXICURITY. A Comparative study: Colombia and the European Union

Annex 4 Tele-work Comparison Table Europe Colombia

Telework is a useful instrument in the era of information that improved the conditions of employees that could not have access to the labour market before -Disable people are a good example-. Flexibility and security go together in Telework increasing the quality of jobs and the possibility of saving costs for employers (in cases when the workers use their own tools for the performance of the job).

generalities The legal framework in Colombia offers different types of performing tele-work. In Europe, the voluntary agreement is a general framework that each Member State can adopt voluntarily.

Voluntary Agreement Same in Colombia

Health and safety for tele-workers are Article 6 of Act 1221 of 2008, imposes an included in the Voluntary Agreement and obligation to employers for the inclusion of employers must follow the same rules as tele-workers within the occupational health for workers performing their job in the programs.

Similarities place of the business.

The Voluntary Agreement was a result of Act number 1221 2008 was conceived to help the European strategy on employment. unemployment in the vulnerable population of The objective was to make more Colombia (situation of forced displacement, productive and competitive the living in geographical isolation, women heads employment contracts with a balance of households, population in prison, people between flexibility and rigidity. European with life threatening) wanted to reconcile work and social life

with greater autonomy to accomplish the

tasks.

The employer has to provide the tele- There is no such an obligation in Colombia. worker with relevant information for the job Differences including application of collective agreements.

The principle of equal treatment is The principle of equal pay applies in Colombia included as “equal employment for tele-workers meaning that an employee conditions”. performing his contract outside the place of business must earn the same wage as the „workers performing equal tasks in the place of the employer.

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Privacy is a fundamental right. If the In Colombia this fundamental right is not employer wants to monitor the systems, it included in the Act 1221 2008. In case of any has to do it respecting this principle. violation general rules of the constitutional right of privacy may apply.

The employment conditions of employees Telework in Colombia is not covered by the performing their job in the employer‟s maximum working time regulation premises must be equivalent to tele- (supplementary work is not covered by tele- workers. workers).

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BIBLIOGRAPHY

Books and Articles

. Alain Supiot (2001), “Beyond employment: changes in work and the future of labour law in Europe”, Oxford University Press. . Blanpain Roger (2010), “European Labour Law”, Wolters Kluwer, Law and Business. . Blanpain Roger and Others (2009), “Fixed-term employment contracts”, Vanden Broele . Blanpain, Roger and Kohler E. (1988) General Report. “Legal and Contractual limitation to Working Time in the European Community Member States”, Deventer Kluwer . Blanpain Roger, “The End of Labour Law?” a Conference for Marco Biagi. . Barnard Catherine (2006), “EC Employment Law”, Oxford University Press . Bob Hepple and Bruno Veneziani (2009) ‘The Transformation of Labour Law in Europe’, Oxford and Portland Oregon. . Bob Hepple and Bruno Veneziani (2010), ‘The Making of Labour Law in Europe’, Mansell Publishing Limited . Bronstein Arturo (2010), “Labour Law in Latin America: Some Recent (and not so Recent) Trends”, International Journal of Comparative Law and Industrial Relations, Volume 26, issues 1Neiman Guillermo and Quaranta Germán (2005) “Restructuring and Functional Flexibilization of Agricultural Labor in Argentina”, Latin American Perspectives 2004 . Bronstein, Arturo: “La flexibilidad del trabajo: Panorama general, en La flexibilización del trabajo. Un estudio internacional”. Instituto Latinoamericano de Derecho del Trabajo, Barquisimeto, 1990, . Fraser Nancy (2003), “From Discipline to Flexibilization? Rereading Foucault in the Shadow of Globalization” Constellations Volume 10, No 2, Blackwell Publishing Ltd . Iftekhar Amin Chowdhury and Anna Rahman, (2007) “Labor Flexibilization and Globalization: Changes in Traditional Human Resources Management”, Daffodil International University Journal of Business and Economics, Vol. 2, No. 2. . Kahn-Freund, O. (1967) ‘A note on status and contract in modern labour law’ Modern Law Review, 30: 635-644. . Manos Spyridakis, (2006), The Political Economy of Labor Relations in the Context of Greek Shipbuilding: An Ethnographic Account, History and Anthropology, Vol. 17, No. 2, 153–170 . Marsden, D. (1999) ‘Breaking the link: has the employment contract had its day?’ Centrepiece, winter: 20-23. . Martha Pacheco de Jaramillo and Elsa Margarita Sanchez de Pineiro (1991), “Ley de reforma laboral: antecedentes historicos, comentarios”, Caja de Compensacion Familiar Compensar . Scholte, Jan A. (2000). Globalization: A Critical Introduction, Macmillan Press Basingstoke UK, St Martin's Press, NY. . Simon Deakin, (2001) ‘The Contract Of Employment: A Study In Legal Evolution’ ESRC Centre for Business Research, University of Cambridge, Working Paper No. 203.

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. Stone, Katherine (2006), “Flexibilization, Globalization, And Privatization: Three Challenges To Labour Rights In Our Time”, K.V.W. Stone. . Tsvetelina Tornyova (2010), “Flexicurity: European Practices And Bulgarian Experience”, Course Paper of Globalization and International Labour Law, Tilburg University.

Legal Framework

Europe

. Council Directive 1999/70/EC/ of 28 June 1999 concerning the framework agreement on fixed- term work . Council Directive 1997/81/EC/ of 15 December 1997 concerning the framework agreement on part-time work . Directive 2008/104/EC of 19 November 2008 concerning temporary work of the European Parliament and the Council. . Framework Agreement on Telework signed by ETUC, UNICE/UEAPME and CEEP the 16 of july of 2002. . Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work

Colombia

. Act 50 of 1990 from Colombia . Act number 1221 of 2008 from Colombia . Decree number 1530 of 1996 from Colombia . Decree number 1703 of 2002 from Colombia . Decree number 4369 of 2006 from Colombia . Labour Code of Colombia . Constitution of Colombia

Cases

European Court of Justice

. Case C212-04 Konstantinos Adeneler and others, ECR 2006, 6057 of the ECJ. . Case C144-04, Mangold Werner, ECR 2005, 9981 of the ECJ . Case C268-06, Impact , ECR 2008, of the ECJ . Case C313-2002, Nicole Wippel vs. CLoppenburg GmbH, ECR 2004, 9483 of the ECJ . Case C055-2007, Othmar Michaeler and Others vs. Amt Fur Sozialen, ECR 2008, 3135 of the ECJ . Case F-8/08. Tribunal de la fonction Publique de L’union Européenne, 4 June 2009, Vahan Adjemian vs. Commission,

Colombian Constitutional and Supreme Court of Justice

. Case number T-404 of 2005 from the Constitutional Court of Colombia . Case number C-016 of 1998 from the Constitutional Court of Colombia . Case number C-588 de 1995 from the Constitutional Court of Colombia

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. Case number C-330 de 1995 from the Constitutional Court of Colombia . Case number 9878 from the Supreme Court of Colombia

Webpages

. http://www.eurofound.europa.eu/eiro/2002/07/feature/eu0207204f.htm\, taken the 23 of March of 2010. . http://www.eurofound.europa.eu/eiro/2009/10/articles/gr0910039i.htm . http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62004J0212:EN:HTML . http://europa.eu/legislation_summaries/employment_and_social_policy/employment_rights_ and_work_organisation/c10131_en.htm . http://curia.europa.eu/jurisp/cgi- . http://www.etuc.org/a/4879 . http://www.allacademic.com//meta/p_mla_apa_research_citation/1/0/0/1/7/pages100174/p 100174-36.php, 6th of February 2010. . http://en.wikipedia.org/wiki/Blue-collar_worker . http://definitions.uslegal.com/e/employee-leasing-programs/ taken the 23th of March of 2010. . http://www.desdeabajo.info/index.php/ediciones/152-edicion-129/777-la-contrarreforma- laboral-y-de-la-seguridad-social-arremetida-de-los-patrones.html . http://www.scribd.com/doc/19118208/TELETRABAJO-Contratos-Laborales . http://homepages.nildram.co.uk/~nyfvo/lawnotes/fixed%20term%20contracts.pdf . http://www.jrank.org/business/pages/597/Fixed-Term-Contracts-Directive.html . http://www.simonbusuttil.eu/default.asp?module=news&id=10246 . http://www.bls.gov/opub/mlr/2001/01/art1full.pdf . http://www.rbs2.com/atwill.htm#anchor999999.

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