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Fundamental Rights of workers in the Digital Age: A methodological approach from a case study

WP C.S.D.L.E. "Massimo D'Antona" .INT - 89/2011

This working paper is the short English version of author's doctoral thesis entitled Labor Law in the Digital Age, co-directed by Professors Julia López and Santiago González Ortega, which dissertation took place at Pompeu Fabra University on July, 11th, 2009. The Spanish fullversion, corrected and updated, will be published in Colàs Neila, E., Derechos fundamentales del trabajador en la era digital: una propuesta metodológica para su eficacia, Bomarzo, Albacete, 2012.

The relationship between employer and worker is not only obligatory but above all, as Sinzheimer said, a ‘relationship of power’. In the Digital Age this statement is confirmed by the massive introduction of ICT in most of the companies that increase, in practice, employer’s supervisory powers. This is a worrying issue for two reasons: on one hand, ICT emerge as a new way to weaken the effectiveness of fundamental rights and the right to dignity of workers; and, on the other hand, Spanish legal system does not offer appropriate solutions to ensure that efficacy. Moreover, in a scenario characterized by a hybridization of legal systems models –in which traditional hard law methods are combined with soft law and self regulation instruments–, the role of our case law has become very important in this issue. Nevertheless, despite the increase of judicialization undergone, solutions offered by Courts are so different that do not give enough legal certainty. Facing this situation, I suggest a methodological approac –using Alchourron and Bulygin’s normative systems theory and Alexy’s fundamental rights theory– which can open new spaces of decision to legal operators in order to solve properly these problems. This proposal can allow setting a policy that guarantees fundamental rights of workers, deepening their human freedom in companies from the Esping-Andersen’s de-commodification perspective. With this purpose, I examine electronic communications in the company as a case study.

author(s): Colàs Neila, Eusebi
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