Decent work: productivity with rights, by Christian Sánchez

I will try to present on this occasion two biases that are very present in the thinking and debate on public policies to promote decent employment and regulate the so-called “Work market”It is enough to review some interviews or opinion articles by various political figures, economists and labor lawyers to detect these biases in the predominant thinking.

The first bias is very common in the debate on the labour market and consists of overlooking or simply disappearing from the debate the moral and legal approach, as if they were not involved in the debate on the world of work and its regulation.

Let me give an example: one of the main characteristics of the current National Competitiveness and Productivity Policy –PNCP- approved by President Vizcarra’s government is to highlight that one of the pillars of its diagnosis is the “approach based on human rights”, that is, it indicates that in the justification of the policies it proposes, evaluative elements are taken into consideration.

Despite what is said in the document, the predominant approach in it is one of a purely economic nature – and in several points economist-, disregarding an evidently necessary –and complementary- legal approach (understood not only from the authoritative dimension of law but also from the values ​​that it serves within the framework of the Constitutional State of Law). That is, despite declaring that elements linked to rights must also be involved in the debate, a value analysis is dispensed with.

A rights-based approach also requires a review of the compatibility of the regulation of the central aspects of the employment contract (stability, working conditions, limits on the working day, among others) and collective labour relations (unionisation, collective bargaining and strikes) in accordance with the commitments assumed by Peru within the ILO.and other conventions on fundamental rights at work, including the commitments made in trade agreements to respect and promote workers’ rights.

For example, various issues in the regulation of labour relations have been observed and questioned by the ILO Committee of Experts on the Application of Conventions and Recommendations, and, on the other hand, various questions remain pending, also highlighted by the ILO Committee on Freedom of Association. In both cases, these are standards to measure the coherence of public policies on the labour market with respect for and guarantee of international labour human rights. These standards make it possible to measure the effects of policies on the exercise of constitutional rights (such as, for example, unionisation and collective bargaining).

The diagnosis of a public policy, with a direct impact on constitutional principles, should have a much broader analytical perspective, which also includes a political perspective that is as coherent as possible with the defence and promotion of fundamental rights. In short, an analysis from an economic perspective cannot (should not) be at odds with the evaluative components of international labor law.

For example, when reviewing the different labor regimes (called “special regimes” in our legal system), such as the agrarian regime (workers without stability despite the existence of permanent activities in agricultural work), or the so-called mype law (less rights for workers in micro and small businesses), their effects on workers’ rights are not analyzed from a necessary and complementary perspective that addresses the principle-right to equality and its corresponding mandate of non-discrimination. Is it not discriminatory to reduce workers’ rights for the purpose of formalizing employment?

From this perspective or approach (and going beyond the simple rhetorical dimension of the so-called “rights approach”), it is important to take into consideration that competitiveness should not be at odds with – it is not necessarily opposed to – the creation of decent employment or, in other words, work regulation that guarantees fundamental rights at work.

That is to say, although it may seem trivial to point out, improving productivity and competitiveness is not necessarily contrary to the creation of employment with rights.

Another bias that I am going to present is actually a fallacy: that of the false cause, which is often presented to try to explain complex issues – which involve a causal context, that is, where causes and causal conditions concur – from a fact that is presented as the cause of a problem.

I will give as an example what is happening with the debate on job stability, which is an indisputable value of our legal system, to such an extent that the Constitutional Court itself recognises it in its binding precedents.

A recent study by an economist presents an inference that links protection against arbitrary dismissal with the increase in temporary employment, which is weak. In short, it states that temporary employment increased when the Constitutional Court precedent came into effect, which reinforced dismissal with cause.

The error consists in considering that the first (the jurisprudential regime of protection against dismissal that allows reinstatement and compensation) is a sufficient reason in relation to the second (the increase in temporary hiring). Bias consists of losing sight of other variables in the reasoning within a broad and complex causal context (for example, the increase in outsourcing that goes hand in hand with the intensive use of temporary contracts, often in fraud of the law).

Although the protection regime against arbitrary dismissal is not ruled out as a relevant variable in the causal context, there is no evidence to prove that it operates as a sufficient reason to explain the increase in temporary employment. In this analysis, the official statistics that show that temporary employment was –and continued to increase- before the jurisprudence of the Constitutional Court function as a counterfactual and weaken the inference.

So far I have presented two biases of the predominant thinking on employment policies and labour market regulation. In another article I will try to present another bias that I also consider relevant and that has caused enormous damage in the search for a coherent regulation between economic reasons and legal and evaluative reasons, promoting productivity without undermining rights.