Labor Law 4.0: Relearning Labor Relations

• Published date: 15 October 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Health & Safety, Employee Rights/ Labour Relations
• Law Firm: BLP Legal
• Author: Mr Randall Gonz'lez

"The illiterate of the 21st century will not be those who cannot read or write, but those who cannot learn, unlearn and relearn" Alvin Toffler.

We learned labor law as a branch of legal sciences, a summation of concepts and theories, that little by little has been clashing with reality. Labor law structured for a society and an organizational system that has changed at a dizzying speed violates the purpose of law in general. Far from becoming a facilitator of processes or labor relations, labor law has become an obstacle, a barrier. For many executives and labor lawyers, the world is still "round", and not "flat" in the style of Thomas Friedman. Some time ago, we stopped living in the round world that generated so many controversies, debates, and theories. The connectivity and even more, the hyperconnectivity of the Fourth Industrial Revolution, or Revolution 4.0, revealed that the world is not "round," but truly flat.

More than answers, more than solutions, old school labor law was involved in trying to apply its outdated and stale theories, developed in definitions that in many cases were elaborated by the Romans, or by some other ancient civilization. Concepts that applied to cases generated during the First Industrial Revolution were until most recently utilized ad nauseam. Labor law has repeated the error that labor relations differ from non-labor relations in areas such as hierarchical structure, subordination to orders, salary payment, and the personal provision of services. A hierarchy depends upon the ability to give orders, issue instructions, and apply threatened disciplinary measures. At the same time, the hierarch applies a series of General Principles of Law, whose nature is immovable and immutable: the Principle of Protection, Irrevocability of Rights, and the Primacy of Reality, among others, which are applicable in most Latin American jurisdictions. However, according to Thomas Friedman's The World is Flat, the labor law that we knew began to conflict with reality when an order that was placed at a McDonald's drive-through in the US, was taken, not by an onsite employee, but rather by someone thousands of miles away, in Bombay, India, or Kuala Lumpur in Malaysia. A specialist doctor in Japan could be analyzing X-rays, which he received from a clinic in an American hospital or an Amazonian town in Brazil. The world has flattened out, although that labor law still sees it as round. Another example of the rudimentary nature of our labor legislation, in general, is when it tries to serve as a facilitator for issues of collaborative economies. For example, the use of a technological platform by a service user who requires a service that a third party provides via the platform connection does not, from my professional perspective, generate a bond of traditional work nature. This is a clear example where labor law collided with the reality of the...