VTC, delivery drivers...: the presidential election, a missed opportunity to redefine the contours of the workforce - La Tribune.fr

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Reading the proposals of the two leading candidates in the first round of the presidential election, one notes that the issue of work remains unclear in the programs. This theme is addressed under the heading "achieve full employment and make a better living from your work". the outgoing president Emmanuel Macron and "To ensure strong growth in our economy for the benefit of jobs, purchasing power and the common good for the candidate of the National Rally, Marine Le Pen.
To achieve this, Emmanuel Macron has chosen the introduction of an active solidarity income (RSA) conditional on an activity to promote integration, the transformation of Pôle emploi "to gain in efficiency", the postponement of the legal retirement age to 65 or 64 to promote the employment of seniors, the simplification and deconcentration of social dialogue, and a simplification of the Labor Code.
For Marine Le Pen: reorientation of the economy towards the principle of localism and economic patriotism, a "necessity in terms of employment", maintaining the retirement age at 60 years in order to promote the access of young people to employment, reform of education and training, facilitating access to employment by fighting against the "import of indentured workers" competing with French workers, reform of posted work.
Despite these differences in approach, less state on the one hand and national preference on the other, neither program profoundly questions the existing and the integration policies that have prevailed in recent years, particularly in terms of promoting self-employment.
Created in 2009, the status of autoentrepreneur, which it is simple to obtain administratively, has since been massively adopted. According to INSEE, "at the end of 2017, 928,000 micro-entrepreneurs are economically active [...]. They account for 33 % of non-salaried employment (Figure 2), but this share varies greatly by sector: it peaks at 95 % in home delivery and urban courier activities.

This boom has in fact accompanied the development of online platforms, the bulk of whose workforce is made up of self-employed workers, which has led to the casualization of these workers who are less protected in terms of law. Thus, their average monthly salary is around 600 euros.
One of the perverse effects of returning to work through self-employment is the creation of a "fictitious self-employed status".This was highlighted for example in March 2020 by the French Court of Cassation in the case of an Uber driver. The status of autoentrepreneur has thus become a source of precariousness for workers, but also of insecurity for companies that may be condemned to requalify the employment relationship as a permanent contract.
To remedy this, a number of measures have been adopted, including the recognition of the status of employee to a number of workers listed in in the seventh part of the Labour Code.
However, avenues for an alternative to this dichotomy between employee and self-employed have been explored for many years, but without any concrete translation for the moment. Nevertheless, they have the merit of existing.
One of them would be to consider the implementation of a right of professional activity which, according to the jurist Thérèse Aubert-Monpeyssen, "would have the effect of harmonizing the obligations weighing on companies that involve workers, regardless of their legal status. This right would encompass all workers without distinction of status, salaried or self-employed, as proposed by several other authors among whom are the jurists Alain Supiot, Jacques Barthélémy and François Gaudu.
Workers would benefit from a common individual set of rights that would include the main principles set out in the 1996 European Social Charter and the 2000 Charter of Fundamental Rights of the European Union. The former contains concrete measures on pay, working time, vacations, retirement, training, health, protection against loss of employment and youth work. In the second, less detailed, chapter IV entitled "Solidarity", we find the main principles of the fight against poverty, social exclusion and worker protection. In both chapters, the conditions for decent work and dignity at work are listed.
Speaking for the research group for another labor code (GR-PACT), labor law specialist Emmanuel Dockés mentions the intention "to extend the scope of the Labor Code to dependent but not subordinate workersto integrate the new forms of employment, autonomous but in a weak situation, in the labor law".
Another approach would be to redefine the employment contract by relying not only on the subordination of the employee to the employer, but also, as Olivier Leclerc suggests, on the economic dependence of which the International Labour Organization (ILO) sets out the constitutive elements: the periodic remuneration of the worker as the source of his or her sole income and the absence of financial risk for the worker. In this way, being an employee implies being subordinate, working for others and being economically dependent on them.
By introducing clear criteria for determining the threshold of economic dependence, this could be a solution for the "grey area" of the economically dependent self-employed and the fictitious self-employed status.
Many of our European neighbors, including Italy and Spain, have been trying for many years and with varying degrees of success to find solutions to this situation. In Spain, the objective is to protect these workers who, according to the Spanish statute, Law 20/2007 of July 11, 2007, "carry out an economic or professional activity for profit, in a habitual, personal, direct and preponderant way, for the benefit of a natural or legal person, called client, on whom they are economically dependent".
How can we do this? By offering everyone a guarantee of remuneration, guarantees in cases of illness, work accidents, pregnancy, a pension plan, a continuous training program, guarantees on working hours, vacations, termination at the request of the worker and at the justified request of the client with compensation in case of lack of reasoned cause. According to the Spanish jurist Fernando Valdes dal-Re, the aim is to bring remedy to this new situation of economic dependence born of the "normalization" of autonomous work in the processes of productive decentralization.
Based on the successes and failures, the modernization of work could also be based on the report "Antonmattei-Sciberras who, as early as 2008, had studied the protection to be granted to the economically dependent worker and recommended the creation of a status comparable to that implemented in neighboring countries.
It lists a certain number of indicators that make it possible to identify a worker who belongs to the category of economically dependent self-employed workers: he or she carries out his or her activity alone, derives at least 50 % of his or her income from a single principal within the framework of a contractual relationship lasting more than two months, and is part of a productive organization that is dependent on its principal. It should be noted that if we grant security to the worker, we should not forget its corollary, that of the company.
The question that arises is why, when the question of the alternative to wage employment has been studied for many years, when economic dependence is recognized and transcends the purely contractual vision of the employment contract, there is no attempt in this direction.
Perhaps it is also because of the upturn in employment - the number of jobseekers not in the labor force has fallen below 3 million in metropolitan France for the first time since July 2012 - that more structural reforms of the world of work have not been considered. But while Covid has been talking about the "next world", isn't it time to take the plunge?

By Olivier PradesAssociate Professor of Labor Law, TBS Education.
The original version of this article was published on The Conversation.

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