The paradigm shift. An opinion on the draft Labor Force Participation Scheme corporate profits.
In this section I will make a brief personal summary of the initiative and the project itself. Be analyzed: (i) A fundamental debate: operation of the constitutional demands. (ii) The Paradigm and paradigms. (iii) When the formal equality is inequality real. (Iv) The Executive is present.
(i) A fundamental debate: operation of the constitutional demands.
First, beyond the points of agreement and divergence that may have on the draft submitted by Hector Recalde, serves as a trigger for a much deeper debate. Because the scene is placed the issue of realizing the operation of the constitutional demands. In this particular case the provision of Article 14 bis is clear and convincing to wield "Work in its different forms shall enjoy the protection of the laws which guarantee workers ... participation in the profits of enterprises, with control of production and collaboration in management. "
To comply with constitutional provisions and in particular this is referred to above all be loyal to the pact with society. Given that the "individual rights are mechanisms by which society promotes its most cherished ideals." This means that society, in its legal axiological scale, the issue of work and the participation of profits, control and collaboration in management are widely valued and thus are recognized and awarded as rights. This situation has once again been confirmed in the latest constitutional reform of 1994 which ratified the provision and renewed the covenant.
On the other hand there is the urgent question of operationalizing the provisions of the constitutional text as one of the qualities of the ontology of a right is likely to be enforceable, otherwise it is against an expression of good wishes, grandiloquent expressions which serve merely to decorate the Constitution. And to be performed include intended as a gracious gift and not as what it is: a right. It is for this reason that we recover the initiative positively, I repeat, beyond whether or not you agree with the particular project, and comply with this constitutional provision, it becomes a reaffirmation and strengthening the rule of law .
(ii) The Paradigm and paradigms.
Some argue that this project presents a conflict between Article 14a and property rights protected in Article 17 of the Constitution, because by imposing a 10% share of the profits on the basis of taxable income of income tax and corporate-phased implementation of certain conditions, it is affecting the property rights of entrepreneurs. The main point is far in some of the critical part of a reading of these provisions, and especially the social cut, from a modern constitutional paradigm of the nineteenth century, where one of the main axes are hermeneutical triad-individualism, formal equality free trade. From this perspective, the company is treated as one-dimensional manner to the budgets of property rights, where it is reduced to the status of "thing." In such scheme is a step preferably in the legal systems of the modern individualistic court where the property right is absolute, and where these provisions and the project is perceived as a blatant attack on property rights.
But today there is no doubt the role of business and its importance in the social whole, in which can not be reduced to the status of absolute private property simply because it goes beyond that characterization because of gravitation has on the economy, the cultural and social stability is an important pivot for the development of society in general. For these reasons and others, provisions enroll 14a of what has been called Social Constitutionalism and that in view of the importance of the company as a social institution must be given recognition and participation of major stakeholders of the company, and they are together with the entrepreneurs: workers, the state and society in general. So that from this paradigm shift the profit-sharing, control and collaboration in the management of enterprises is not attack on property rights.
(iii) When the formal equality is real inequality.
Some of the criticism is in affecting the principle of equal receptive article 16 of the Constitution. Because workers participate in the profits and not the loss as do employers. This assessment is biased because it ignores the situation of disadvantaged and vulnerable time of the sector worker. The view from formal equality and social issues unique axis is not wise because it is rooted in reality and history of social and political struggle of the workers in our country. This vision of the modern paradigm described in the preceding paragraphs. That's why from a multidimensional perspective, fulfilling occurrence and equal Structural workers should not bear the loss, but if there is no gain, did not participate.
(iv) The Executive is present.
A project of the points that caught my attention is the strong presence of the Executive Branch when making appointments to the presidency and representatives of the tripartite. Because the bill provides that the president be elected by the Executive of integrating the presentation of the Ministry of Labour, Employment and Social Security, the rest of the members proposed by the institutions PEN also designate the excessive role may undermine the reason for this being triparito as enforcement authority and opportunity for dialogue to be a functional entity to the government's interests.
