Alicante Declaration
University of Alicante, 27 May 2022
OVERALL CONCLUSIONS
The papers, discussions and communications presented have conveyed with the utmost scientific rigour the great challenges of current digitalisation for Labour and Social Security Law, which cannot remain impassive in view of the new ways of providing work and the new formulas of business organisation. A wide range of problems related to the digitalisation phenomenon were raised and interesting proposals and solutions were formulated to provide the congress with a social utility beyond its mere academic dimension. The final purpose of the congress is that they serve as a basis for drafting the Statute of Workers rights of the 21st century.
A first clear proposal can be deduced after analysing the general paper:the foreseeable increase in technological unemployment will require exploring new actions in the area of active employment policies, different from those undertaken so far. Among them, the paper points out interesting measures, such as a greater budget allocation for the State Public Employment Service in accordance with our high unemployment rate, reinforcing the digitalisation of its resources to improve its intermediation function and the articulation of a local dimension of active employment policies.
The paper also proposes a substantial improvement in the current regulation of the right to vocational training in order to overcome its current scant prominence in labour legislation. In this sense, the need arises to transform the leave for training reasons, provided for in Art. 23 of the Statute of Workers Rights, into a true right of the worker to vocational training for employment.
Specific protection must also be provided to the group of older workers against the risk of technological unemployment. In this sense, a global reordering of unemployment protection, detached from its employment linkage, is urged. The advisability of introducing specific measures into the law, such as giving mature workers the right of option in the event of unjustified dismissal, is also mentioned.
The new aspect of labour relations constitutes one of the main challenges for Labour and Social Security Law. In contrast to the positions proposing the regulatory obsolescence of the current Labour Law, the paper defends its operability based on the wide margins with which case law has been assessing the assumption of subordination.
In terms of working time, it is reported that the current flexibility in its management and distribution has a clear negative balance to the detriment of the worker. It also raises the need to reverse the discriminatory characterisation of the overwhelmingly female exercise of work-life balance rights. In this field, it is committed to exploring new formulas to introduce co-responsibility in exercising these rights, the need to socialise the tasks of care and to solve the current and clamorous ineffectiveness of the National System of Care for Dependency.
On the other hand, the paper is not oblivious to the main problems arising from the fact that work increasingly involves digitalisation. It warns of the trap for women that it is to consider teleworking as an instrument favouring work-family life balance. It points out the vital role that collective bargaining could play in this area by articulating measures to promote co-responsibility and reverse affirmative action.
The paper concludes with an interesting proposal for the future of the labour system, which will essentially involve reforming the Statute of Workers Rights and should play a central role in protecting workers and be less market driven.
From the first panel,which focuses on the impact of digitalisation on labour law in general and, particularly, on employment law, it is also possible to extract proposals of great relevance.
In view of the preliminary draft of the Employment Law, a valuable in-depth analysis is made of the main problems that digitalisation poses for access to the labour market. The paper reminds us that the segmentation of the workforce inherent in this phenomenon clashes head-on with the demand for an « inclusive digital economy« . Also, in the selection processes, digitalisation jeopardises the essential rights of workers such as privacy, freedom of expression and non-discrimination.
Hence the need, as mentioned above, for greater digitalisation of the resources of the State Public Employment Service and its portfolio of services.
In the field of recruitment, it is advocated to be attentive to the suggestive solutions provided for in the proposal for a Directive on working conditions on digital platforms.
The figure of the so-called « smart contracts” is of a particular interest, a formula that can be very operative and that guarantees the employee an automatic updating of the contractual content throughout the employment relationship.
In the particular field of new forms of employment through digital platforms, the main challenge facing this type of work is the current lack of regulatory regulation, especially in the conventional sphere. The truth is that this issue is still subject to debate in many areas of activity, and there are several proposals, ranging from those that advocate different legal qualifications for the employment relationship to those that suggest continuing with the current deregulation.
At the international level, the most suitable formula for dealing with this phenomenon is an ILO Convention with an international approach, i.e., for all types of platforms. These regulations should cover, among other things, issues relating to working time and remuneration, collective rights of employees, social security contributions, personal data protection and an algorithmic management of the service.
The second panel, focused on the challenges of Social Security and social protection posed by digitalisation, revolved around a key point of analysis: assessing the present in order to move forward in the future.
Thus, with regard to the most recent reform, Law 21/2021, on guaranteeing the purchasing power of pensions,this structural reform is generally viewed favourably insofar as it is the result of social consensus and has corrected the austerity orientation in public spending that characterised the previous reform of 2013.
The paper provides a wide-ranging analysis of the many distinct aspects that have been the subject of reform. It values positively the repeal of the sustainability factor, due to its negative gender impact, and its replacement by the « intergenerational equity » mechanism to ensure the financial sustainability of the system. The paper also focuses on the changes introduced in the system for access to retirement pensions, considering that the contribution requirements for early retirement are still very strict and this is likely to increase the gender gap.
From there, we look to the future. Thus, it is noted that working in digital environments entails the risk of generating vulnerable contribution races. This will make it difficult to comply with the constitutional mandate of adequacy of benefits, raising serious generational and intergenerational solidarity problems.
It also stresses the importance of the digitisation process of the Social Security Administration and the strengthening of information services to make citizens aware of the importance of being part of the system and of making financial contributions to ensure its present and future sustainability.
But digitisation will also have an impact on employment, making it a true challenge to protect the unemployed who have specific difficulties in accessing and remaining in the labour market. There is a lack of a complementary social coverage mechanism that would be appropriate for longer unemployment periods.
In this regard, digitisation also highlights the current shortfalls in the coverage of part-time workers. Hence, several interesting proposals for improvement are suggested, aimed at making it easier for them to meet the current contribution requirements, including the need to find an alternative to the partiality coefficient.
And if digitisation means that self-employment will become more prevalent, then the reform of social protection for self-employment shall also need to be addressed. The paper advocates modifying the current contribution system so that these workers can pay contributions based on their actual income. On the other hand, the entrepreneurs’ resorting to false self-employed workers that digitalisation has brought about makes it necessary to consider to what extent inclusion in the special regime should continue to require the assumption of regularity. This is because the determining factor for the inclusion or exclusion of such regime must be the presence or absence of the labour requirements regardless of the duration of service rendered.
The discussion in the third paneldealt with digitalisation and the rights to information and transparency,and particularly, with the digital rights of workers: the protection of their privacy in the use of technological devices and against corporate video surveillance systems, the protection of their personal data in the company, and the right to digital disconnection.
The current protection of these rights in the labour legislation is insufficient, erratic, and fragmented. Since these rights are of a labour nature, it is distorting that their basic regulation is in the Organic Law on Data Protection and not in the Statute of Workers Rights. Therefore, the labour law should provide them with a specific, systematic, and unitary regulation.
Likewise, the laxity with which the Data Protection Law formulates the presumption of corporate legitimacy in the use of digital tools to control labour activity and to collect and process personal data is open to criticism. The wide margin of corporate action resulting from this presumption markedly weakens the bargaining powers of workers at both the individual and collective levels. It would therefore be necessary to suppress this presumption or modulate its impact with a more restrictive and finalist approach to the employer’s actions in this area.
These criticisms can be extended to the judicial sphere. Thus, the permissive positions of case law (taken on by the legislator) that contrast, markedly, with the more protective regulation of the European Data Protection Regulation are open to criticism.
The main explanation for this reality is since it is essentially in dismissal proceedings where the judicial body must assess the validity of the electronic control system used by employers. The reality of this type of process shows that it generalises and encourages the exercise by the company of surveillance powers that are not overly sensitive to the essential rights of the worker. This is because, once the employee’s non-compliance is proven, it will be difficult to declare the dismissal unjustified or invalid based on the nullity of the evidence obtained by the employer.
Hence, the proportionality test used by the courts in these cases should be applied with a different orientation, more in line with European legislation. Specifically, the requirement of necessity of the chosen control should not be construed as a mere business convenience for its use, but the employer should prove the impossibility of using a less invasive method.
Likewise, the traditional entrepreneurial freedom to choose the surveillance and control measures it deems appropriate must be tempered by the European principles of minimisation and relevance of the data collected. From these principles arises the duty to inform workers of the technological control systems implemented in the company and the purpose for which these data will be used.
The fourth and last paneladdresses the novel and interesting topic of labour management through algorithms. Logically, the main focus of the debate revolves around the risks involved in algorithmic management of work activity, based on aseptic and dehumanised data analysis. The most conspicuous part is probably that of generating classic patterns of segregation, giving rise to the so-called « algorithmic discrimination » because it allows perpetuating of the most traditional factors of discrimination. Among the possible guarantees to arbitrate in this area, the importance of algorithmic transparency stands out, which should not operate as a new fundamental right but as a guarantee of the right to non-discrimination. Greater transparency is the basic element for achieving an « algorithmically responsible company« , through which decent and socially responsible work formulas can be implemented.
But this is not the only key piece, since, among the legal guarantees currently in place, the prohibition of « fully automated decisions »set out in Art. 22 of the European Data Protection Regulation also stands out. However, the wide range of exceptions to its prohibitive mandate set out in the rule and the significant doubts on its construction raised by its application greatly condition its protective effect.
In the same direction is the need to specify the content of the principle of necessity for collecting personal data and to legally empower the legal representatives of workers to negotiate algorithms. It would also be necessary to open an ethical and legal debate to determine which technologies are admissible in this area and which are not, and which business management decisions can be automated, and which should be kept away from technology.