The protective state, which looks after individuals “from cradle to grave”, the expression used at the time welfare systems were set up, has gradually extended its reach, by seeking, through a variety of protection mechanisms, to cover the different situations of need that may happen in an individual’s lifetime. The system offers a safeguard from destitution and provides care and funds to tackle the range of circumstances that could arise.
The state therefore offers a safeguard and a safety net which in a way saves individuals from having to worry about any future consequences of sickness, unemployment, an accident, or other misfortunes. In tandem, the scope of protection of the employment status of employees has also grown. From the first employment law initiatives, completely absent from the world of the organization of labor, and focused on protecting specific particularly vulnerable workers (minors, women) and on preventing exploitation in specific areas (basically, working hours and working hour restrictions, guaranteed and sufficient wages), we have moved to an increasingly broad and sophisticated protective legal system that now provides the worker with a long list of protected rights and statuses.
One of the problems currently plaguing the welfare and employment protection systems, is the excesses they may have incurred. State protection offers a safeguard and provides the means to face life’s adversities with a certain amount of assurance. The protection of workers’ rights dignifies work and stops workers becoming simply a commodity, secondary to the needs of the production system and obtaining the highest profit.
But while protection provides a safeguard, overprotection, if it comes to that, encourages irresponsibility and constant claims for greater protection, and may erode the company’s ability to create the wealth needed to maintain the welfare system. And at times it seems as if western companies have embraced this overprotection mentality, which dampens individual responsibility, attempts to satisfy every appetite (no longer rights) of individuals, and encourages perceptions of victimization and constant claims.
It has now been few years since Pascal Bruckner, in an insightful essay (“The Temptation of Innocence”, Algora Publishing, 2000), criticized how, with its excesses, the state “infantilizes” citizens making them fall into the role of crybaby “who wants to do everything his own way and stamps his feet when he hears the word “No”!”. This leads to perceptions of victimization and to the trivializing of certain notions, such the accusation of “fascism” now so often made at the drop of a hat: fascism, Bruckner tells us, in these circumstances means “anything that opposes or challenges an individual’s inclination, anything that restricts his whims”. If all it takes to win is to be recognized as a victim (of society, of the “boss”) “then everyone will fight for this gratifying position”. So “[i]nstead of competing in excellence and enthusiasm, men and women compete in displaying their disgraces”. So, Bruckner concludes, it is common for the contemporary individual to become a “big, whining baby with a lawyer at his side”.
My point with all this concerns the provisions introduced by Royal Decree-Law 6/2019, of March 1, 2019, in relation to the adaptation of working hours, at the worker’s request, and to strike a balance between work and family life (new article 34.8 of the Workers’ Statute). If they are not interpreted correctly these provisions could pose a threat to the organization of companies’ productive activities, by placing the worker’s wishes or convenience before organizational and production-related needs. The system known as à la carte working hours, a name not chosen lightly, may therefore be seen as a typical example of overprotective legislation, which attempts to protect the individual simply from the inconveniences caused to them by working. It is very true that lawmakers are tempted to be overprotective but they also try and avoid the possibility of this seriously harming productive activities and therefore generation of the wealth needed for society to be able to afford these “luxuries”. But if they alter the scope of the recognized law, they pave the way for legal uncertainty, increase the need for court supervision in employment relationships and ultimately leave the management of delicate organization issues in the hands of judges (labor court judges, because there is no appeal against their judgments).
It is particularly striking that though a right is granted workers, it is a right to request adaptations of their working hours or of the performance of their work, not to obtain them. A right granted to bring another into effect (right to strike a balance between their work and family (not personal, note) lives. While these adaptations, as they are called, must be reasonable and proportionate in relation to the worker’s and the company’s (organizational and production) needs, it is not even clarified what type of work and family life balance may justify a request for the adaptations, nor do the provisions lay down, beyond the reasonable and proportionate standard (in the opinion of the judge) even the slightest objective test. By contrast, the employer’s refusal must state the objective reasons underlying the decisions.
The new article provides other interpretation guidance: if the reasons for seeking work-life balance arrangements are based on childcare, they cannot be used after their children are twelve years of age. The worker is entitled to reverse the adaptations at any time (no justification is needed or notice period or any requirement of any kind, although the right is also defined as “right to request” a return to the previous arrangement. Will the employer have to provide objective reasons for refusing the request?) and additionally, collective bargaining is relied on to determine the terms for exercising the right (is industry-wide bargaining, above all with a broad geographical scope, suitable for determining those terms, without considering the specific situation and organization of each company?), and in the absence of that determination, individual negotiation with the worker, in which the company may accept the worker’s proposal, provide an alternative, or deny it, in which case the company must give objective reasons for its decision.
But the scope of the right to a balance between work and family life is not specified, nor is it defined elsewhere in Spanish law. Only Organic Law 3/2007, on equality, in article 44 on the rights to a balance between work personal and family life (here it does mention personal life, although the wording reduces the mandate to family relationships) associates them exclusively with the fact of taking on family responsibilities and with maternity and paternity leave.
A doubt remains, therefore, as to how far work-life balance needs may be claimed beyond childcare, the care of sick relatives, or maternity and paternity leave, and above all what conclusions will be delivered by the labor courts, which generally are not inclined to take a favorable view of business needs conditioning or altering workers’ individual needs.
I do not know whether the big whining baby will ever come into being, but we are certainly heading towards a society of individuals awarded a host of rights with lawyers by their sides, in a landscape of ongoing and broad litigation.