PRECARIOUS WORK: LEGISLATIVE CHALLENGES

PRECARIOUS WORK: LEGISLATIVE CHALLENGES Lawyer Raluca ANDERCO1 Abstract The article aims to briefly review some of the key theoretical aspects of precarious work in Romania, starting from the analysis of the factual situation existing at the moment. We will also analyze official statistical information, in relation to European legislation, highlighting the usefulness and weaknesses in the phenomenon of precarious work and its dynamics over time. Last but not least, we will enumerate the legal, quasi-illegal and illegal forms of precarious work in today's Romania (identification, formal description and a brief discussion of socio-economic implications), as well as legislative lacunae existing at this time. Finally, we will refer to case studies that illustrate every form of precarious work analyzed in this article, with reference to both domestic and European legislation: e.g. poor work in the rural population, precarious work through pricing of atypical contracts, precarious work as a fake form of individual labor contract, "domestic" workers, etc. Keywords: precarious work, standard, neoliberal, atypical form, risk. JEL Classification: K31 1. Theoretical aspects of precarious work Over the past 20 years, international literature has given special attention to atypical forms of work. Non-standard work concepts, atypical work, self employed, informal work have begun to be used in scientific articles on the social and economic consequences of labor market flexibility in the 1970s and 1980s. Precarious work is not an atypical form of work, in legal terms or a specific aspect of the employment relationship, but rather is a mix of factors, a factual situation of workers. Precarious work can be described as depending on a person's desire/intention, it is up to some circumstances beyond the ability of a person to control them, but it is unsafe, unstable, unpredictable, dangerous, changing, virtually lacking any stability and work security. Some legal forms of work are more exposed, by their nature, to a certain risk or uncertainty (such as atypical forms of work, non-standard labor contracts, subcontracting, etc.), even the workers in a classical employment contract can sometimes find themselves in precarious situations, therefore the definition of precarious work differs from one state to another, depending on the economic reality, the actual situation, etc. Basically, precarious work is the opposite of any decent form of work, as defined by an individual labor contract. The International Labor Organization's report on precarious work concludes that there are some common characteristics of this type of work: "in the most general sense, precarious work is a means for employers to shift risks and responsibilities on the workers."2 Amanda Latinne points out that even cooperatives (where there should be no worker employer conflict of interest) follow a general trend of neo liberalism in the sense of a huge flexibility in terms of employee-employer relationship.3 Another important observation is that precarious work is an instrument to influence competition between precarious workers and standard employees, meaning that the standard work conditions of employees are becoming more and more precarious. Since the 1970s and 1980s, with the neoliberal ideology, labor pressure has also begun to push the labor market into a more flexible market, even to lower the level of workers’ rights.4 Under these conditions, the worker’s rights protected have gradually been degraded and destroyed, meaning: 1 Raluca Anderco - Bucharest Bar Association, Romania, . ILO, Policies and regulations to combat precarious employment, Geneva, 2011. 3 Latinne A., The Mondragon Cooperatives, Intersentia, Cambridge-Antwerp-Portland 2014, p. 124-125. 4 Buelens J, Pearson J, Standard Work: An Anachronism?, Intersentia, Cambridge-Antwerp-Portland, 2012, p. 3-5. 2 Perspectives of Law and Public Administration Volume 8, Issue 1, May 2019 150 - introducing different forms of flexible work, but actually precarious work; - not respecting employees' rights in practice; - contractual regulation of factual situations that go beyond the scope of work; - legislative reforms in the field of labor law that regulates less favorable situations for employees. All these aspects represent a tremendous pressure on the employee in terms of his rights and the conflict of interest between the classical and the precarious employee. Essential in terms of precarious workers is that they are not organized, they do not have a Trade Union or a collective bargaining, and this is still a consequence of precariousness. However, it is necessary to understand that the phenomenon of precarious work is not new, with the development of the labor market, various forms of precarious work appeared, as a result of the economic reality (much more dynamic than the legislative framework): e.g. home work, gardener, housekeeping, "handy man", people used to promote clubs, discotheques, restaurants or various travel sites, street ticket vendors, online work in extremely diverse forms, In fact, precarious work and precarious work conditions have always reflected and will always reflect a gap in labor law, a gap regarding practical application of labor law and a gap regarding the social security system for the protection of people who are not employed. 2. Precarious work in Romania 2.1. Theoretical aspects of precarious work The social and economic changes that Romania has experienced over the past 25 years, as well as the global economic situation, have led to a transformation of the labor market by moving from a general standardized domain during the socialist period to a complex market in terms of contract, characterized by the emergence of informality. Currently, the analysis of monetary indicators (poverty rate, average income equivalent) and non-monetary measures of poverty demonstrates Romania's precarious state compared to the European average. The share of non-standard contracts is relatively small compared to other European countries that have a tradition of promoting legislation in flexible work. In Romania, involvement in informal or quasi-formal5 activities is common, especially for the low-skilled, for the economically vulnerable population, for the unemployed who prefer to remain unemployed and social assistants (social assistance, disability or medical pensions). Involvement of the population in the informal economy area makes it difficult to include them, from a methodological point of view, in official statistics. Official data refers, first of all, to regularized phenomena: standard contracts, declared unemployed and allowances. However, informal work is often hidden by inactivity (large share of households) or self-employment. 2.2. Legislative aspects of precarious work As far as the Romanian legislation is concerned, we find that precarious work does not benefit from a specific definition or approach, being limited to certain aspects (...truncated)