3. Personal Work Nexuses in the different practical types of work relations.
In this next stage of my argument, I consider the legal nature of personal work relations in each of the practical or empirical categories which were identified in the previous section. Since one of the starting points for the whole of my argument in this paper is that the legal construction of personal work relations can usefully be envisaged as a set or a variety of different kinds of personal work nexus, this stage of the argument therefore involves considering what kinds of personal work nexus are associated with each of our practical or empirical categories when those categories are passed through the filter of legal construction. By way of reminder, I point out that this analysis is posed against a generally accepted legal construction of the world of personal work relations which imposes on it a binary division into the two contrasting types of 'employees' and 'independent contractors', or, more specifically, into the two contractual categories of 'contracts of employment (or of service)' and 'contracts for services'.
In order to apply my personal work nexus analysis to my six practical or empirical types of personal work relations, one or two further definitions or refinements are needed. Firstly, we should, as a matter of legal analysis, draw certain distinctions between different types of personal work nexus. Personal work nexuses may differ from each other in more than one dimension. They may differ in the extent to which they are contractual in character; they may be wholly contractual ('PWN/C'), wholly non-contractual('PWN/NC'), or partly contractual and partly non-contractual('PWN/PC'). They may also differ as to how many sides or links they have; they may be bilateral ('PWN/B'), or multilateral ('PWN/M'). Again, this analysis is posed as a challenge to a generally accepted much simpler paradigm for the legal construction of personal work relations in which those relations are viewed as universally or nearly universally having the legal character of bilateral contracts (ie being 'PWN/C/Bs').
One further element of definition is then needed in order to explain the relationship between that simpler accepted paradigm (in which personal work relations are almost systemically reduced to PWN/C/Bs) and the more complex or multifarious analysis which I am proposing. As I have indicated, in the simpler more generally accepted analysis, the bilateral contracts in terms of which personal work relations are legally construed are subjected to a binary division into contracts of employment with employees and contracts for services with independent contractors. In that system of construction, enormous analytical effort is concentrated on drawing a bright line between those two types (an illusory quest in my view); but the outer perimeters of the whole double category of contracts are left relatively undefined. In particular, little care or energy is devoted to distinguishing between those contracts for services which fall within the domain of personal work relations, and those which are outside that domain but are within the whole large domain of services contracts in general. #p#分页标题#e#
That turns out to be a serious issue when, as happens more and more frequently in current European practice, the scope of employment legislation is extended beyond that of employees with contracts of employment to include other workers who therefore, according to this binary system, are normally regarded as working under contracts for services - criteria are needed to delineate this expanded sphere of employment law from that of commercial contract law in general, but those criteria tend to be lacking. In the system of analysis which I am trying to construct, much importance is attached to the articulation of those criteria; they are crucially needed to define the personal character of the personal work contract and, for that matter, the personal work nexus, the latter being a more expansive concept, but one which is nevertheless limited to work relations which are focussed upon the doing of work or provision of services primarily by an individual operating as such rather than by a multi-personal organisation. In short, the system of analysis based on the concepts of the personal work nexus and the personal work contract requires a distinction between the personal contract for services (in the above sense) ('PCfS') and the contrasting non-personal contract for services ('NPCfS').
Armed with these distinctions, we can usefully analyse the legal construction of personal work relations within the practical or empirical categories which we have identified. We will attempt to do this both statically and dynamically; that is to say, we will consider both the predominant current analysis of personal work nexuses within each of our six categories, and also the dynamics whereby personal work nexuses tend to transmute within and between our six categories. At this point, however, we need to remind ourselves that the practical or empirical categories and the legal categories do not evolve totally independently of each other - changes in the legal character or construction of personal work nexuses are generally linked to changes in the character and functioning of the practical or empirical categories of personal work relations, though there are significant phenomena of mis-matching between practical work relations and the legal construction of them. So the dynamics which we shall seek to identify, although primarily describing legal evolutions, are also secondarily referring to associated socio-economic or empirical ones.
Thus we begin with (1) 'standard employee' personal work relations. The legal construction of those work relations is, of course, overwhelmingly strongly oriented towards the contract of employment - though I argued in my article, 'From the CE to the PWN' that this bilateral contractual construction of 'standard employee' relations often belies a more complex reality which ought to be reflected in the recognition of an only partly contractual personal work nexus in which the worker is accepted as having legally significant though non-contractual vertical, horizontal or diagonal links with other workers and managers within or connected to the employing enterprise, for example because the employing enterprise and other workers or managers might be delictually liable for harassment of the worker in question, or of a prohibited form of discrimination against that worker. But that is a prescriptive or normative argument on my part; the reality of legal construction of 'standard employee' personal work relations is one of imperviousness against such elaborations, I believe in most if not all European employment law systems. #p#分页标题#e#
There is at the same time a practical dynamic according to which some 'standard employee' personal work relations evolve either towards individual entrepreneurial work relations, or towards casual temporary and part-time work relations, for example where the remuneration of the worker is more strongly related to performance or output than it previously was, or in that the employment security of the worker is reduced, thus transferring more risk of downturn in demand to the worker than was previously placed upon him or her. However, it should be noted that such changes, fundamental though they may be from a socio-economic perspective, often do not displace or even disturb the legal construction of the personal work relations in question; much of that dynamic of entrepreneurialisation or precarisation of 'standard employee' personal work relations can be absorbed within the 'soft texture' of the contract of employment. On the other hand, the parties to standard employee personal work relations may be under strong incentives created by fiscal and regulatory regimes to reconstitute them in the practical form of individual entrepreneurial work relations or casual work relations, and more particularly in the legal form of the personal contract for services.
(2) The personal work relations of public officials. The inclusion of this type of personal work relations in our system of categories dramatically illustrates the diversity of legal constructions of personal work relations in general, and the unsatisfactoriness of envisaging those relations as falling into a simple binary division between contracts of employment and personal contracts for services. Although the particular personal work relations of public officials or functionaries in substance usually resemble versions of 'standard employee' work relations in which the worker benefits from strong protection of security of employment and income, the legal construction of those relations is usually radically different from that of standard employee relations, being in terms of a public law status which would in many systems not be regarded as a contractual one, because the view is taken that the public official should be 'above the fray' of contractual work relations.
European legal and administrative systems diverge considerably as to how widely they accord the status of public official or public functionary. There is quite a widespread practical dynamic towards the approximation of these work relations to those of standard employee relations, indeed towards versions of standard employee relations which transfer some degree of economic risks to the worker; but European state legal systems diverge considerably in the extent to which they have inbuilt resistances to those changes. The UK employment law system has been very open to this kind of adaptation, while many other European systems erect much higher barriers around the separate public law status of public officials.