Freedom of business, security job and «adaptative subrogation»: A «poor-quality» dock work act

Abstract

The full liberalization of port work has just been implemented via the recent Real Decreto-Ley 8/2017, of 12 May, which, at last, fulfils the judgment of the Court of Justice of the European Union –CJEU– of 11 December 2014 (Case C-576/13). In order to achieve the agreement of a parliamentary majority, the new law introduces five novelties not featured in the preceding legislation. Even though these changes are relevant, the latter precepts present identical stucture and substantially equal contents to the former ones, which expired because of the lack of a minimum political understanding. Actually, the most relevant of the new features is the Annex, in which a real solution is pointed: the guaranty of a corporate subrogation in existing employment contracts, not by the means of law, but regulation and bargaining. At the same time, that subrogation, whose guaranty has been law deprived, would neither suit a classic model of static equilibrium, progressing instead in a reinforced adaptative or dynamic stability model, that is, it will require, in return for the preservation of most of the employments, a significant worsening of working conditions. Thus, the liberalization of port work sector would act as a new manifestation of labor-law protected company competitiveness as the core of the fundamental right to free enterprise, in line with CJEU (of 27 April 2017, cases C-680/15 and 681/15) and Tribunal Supremo of Spain (4/2017, of 10 January, and 343/2017, of 21 April) rulings.