Abstract
On 28 June 2011, the three biggest Italian trade union confederations (CGIL, CISL, UIL) signed a Multi-sectoral agreement on collective representatives with the employers’ association (Confindustria). After a long period of conflict, this agreement re-establishes unity between the three confederations. To understand the contents of this agreement, some peculiar characteristics of Italian industrial relations must be clarified.
First, in Italy collective agreements are not generally binding and cannot be declared universally applicable because Article 39 of the Constitution (which provides a mechanism for creating an erga omnes system) has never been implemented. As a consequence, collective agreements are binding only for the parties (and their members) that signed them. The absence of an erga omnes system is not a problem in the case of company agreements which improve working conditions since the right not to be discriminated against on the grounds of membership or non-membership (Article 15, Statuto dei lavoratori) prevents employers from applying different treatment to their employees. On the other hand, if a company agreement introduces poorer working conditions, non-unionized workers can successfully refuse its enforcement.
The functioning of the inter partes system relies on the unified action of the confederations which guarantees wide scope for collective agreements. Nowadays, however, cases of divergence are becoming more frequent. On 22 January 2009, a Multi-sectoral agreement was signed by the most important employers’ and workers’ organizations, but not by CGIL (the biggest Italian trade union confederation). This 2009 agreement reformed the bargaining structure in a way that strengthens the role of decentralized bargaining. The more recent agreement of June 2011 does not solve the problems created by the 2009 agreement because it does not expressly replace it (the 2011 agreement does not even mention the 2009 agreement).
Since the beginning of 2010, another notable event characterizing the Italian industrial relations saga is the FIAT case. The CEO of FIAT (whose salary is 292 times the salary of an ordinary worker of the company) presented a proposal for new company agreements, first at the Pomigliano and then at the Mirafiori factory (two of the main production sites of the company), which FIOM (the metalworkers union in CGIL) refused to sign. Several clauses of these two company agreements worsen the rules established by the national collective agreement for metalworkers. Hence, the question of whether it is possible for a company agreement to deviate from the national collective agreement stands alongside the problem of the scope of collective agreements. 1 Again, this question is governed by the Civil Code. As a consequence, the clauses of the latter agreement must be applied, even if it is a company agreement and even if it infringes the rules on bargaining structure set by the national collective agreement (in this case, the signatories are liable for breach of contract).
The coexistence of the two problems mentioned above is known as the ‘paradox’ of Italian trade union law governed by the Civil Code: any company agreement can deviate from a national agreement, but such a company agreement can be applied only to the members of signatory unions.
Some clauses of the two FIAT company agreements limit the right to strike. In Italy, the right to strike is guaranteed by the Constitution (Article 40) and has been interpreted as an individual right, even if a coalition of workers is needed to call a strike. Thus, any restriction on the right to strike stipulated in a collective agreement binds only the trade unions that sign it and does not affect the individual right to strike. Nowadays, some legal commentators affirm that the right to strike is a collective right and that the rules set by collective agreements must also be respected by workers.
In the Multi-sectoral agreement of 2011, the three confederations and Confindustria gave a unified answer to the above-mentioned problems (scope of collective agreements, bargaining structure, the nature of the right to strike). However, it must be stressed that a multi-sectoral agreement is a contract and it cannot set up a mechanism for creating an erga omnes system: only legislation can do that. The issue of the erga omnes effect is strictly linked to the problem of representativeness, regarding who and what unions represent, in terms of persons, interests and social projects. The 2011 agreement focuses on this problem and establishes a threshold above which the national trade union can legitimately negotiate: a union can negotiate a national collective agreement only if it represents more than 5 percent of the workers in the sector. 2 If Confindustria bargains with a union that does not reach the threshold of representativeness, it will be liable for breach of the 2011 agreement but the national collective agreement will be effective. On the other hand, a national collective agreement signed by representative trade unions binds only the contracting parties (i.e. it is not generally binding) so different national collective agreements for the same sector will still be possible.
Besides, the 2011 agreement provides that a company agreement is generally binding if it is approved by the majority of the members of the unified workers’ representative bodies (rappresentanze sindacali unitarie, RSU) or by the workplace representatives regulated by Article 19 of the Statuto dei lavoratori (RSA). However, in the latter case, the representatives must collect the majority of authorizations for union dues by the company’s workers and the agreement must be submitted to a referendum and endorsed by the majority of voters. 3
Again, it should be underlined that the 2011 agreement does not create an erga omnes system. On the contrary, it extends the binding force of company agreements (approved according to its provisions) only to the three confederations that have signed the 2011 agreement.
Regarding the bargaining structure, the 2011 agreement confirms the central role of the national collective agreement which is supposed to establish general rules on economic and working conditions for all workers in a sector. Conversely, company bargaining can only deal with matters delegated by national agreements or by law. A company agreement can also deviate from national agreements, following the procedures and limits provided by them. In the absence of such procedures, a company agreement can deviate from the national one if: (1) it has been agreed by the local structures of confederations; (2) it concerns a company crisis or an investment; and (3) it regulates working conditions, working time or work organization. 4 If the rules on bargaining structure are not observed, the signatories parties will be responsible for a breach of 2011 agreement but the company agreement will be effective.
Finally, the 2011 agreement affirms that the clauses on strike restrictions are mandatory only for workers’ representatives and trade unions. It therefore expressly rejects the thesis that the right to strike is a collective, and not individual, right.
The newly forged trade union unity was disrupted after only 46 days. In an emergency decree on financial measures, the government included a provision on the scope of company agreements and on their power to derogate from the law and national collective agreements. Article 8 of D.L. 138/2001 (subsequently converted by parliament into law L. 148/2011) states that local and company collective agreements signed by trade unions which are comparatively more representative at national or local level, or by workplace representatives, are generally binding if they are approved on the basis of an undefined majority criterion concerning the workplace representatives. These generally binding agreements can derogate from national collective agreements and even law on a long list of matters (including dismissal), without any restrictions or conditions. Moreover, a legally outrageous provision has been inserted to solve the FIAT case: company collective agreements signed before the 2011 agreement and still in force are generally binding if they were approved by the majority of the company’s workers.
The inappropriateness of regulating collective bargaining without any participation of Parliament, trade unions or employers’ associations must be emphasized. The decree has completely overturned the basis of labour law. Obviously, company agreements empowered to derogate from the law must obey European law and constitutional principles; this generates uncertainty since this must be verified case by case. The alteration of labour law in this way balkanizes industrial relations: any employer can reach agreement with an undefined majority of workplace representatives on the rules applicable to his or her enterprise, so that equality of treatment between undertakings (a fundamental principle of competition law) is profoundly infringed. Moreover, the interests of workers are usually less protected by a company agreement because of the weaker negotiating power of workplace representatives. Finally, the rule that declares collective agreements to be generally binding is not clear and does not observe the procedure provided in Article 39 of the Constitution. Furthermore, the retroactive effectiveness of the erga omnes system conflicts with the freedom to organize collectively guaranteed by Article 39.
Article 8 of D.L. 138/2011 has been called a ‘slapdash’ rule, totally against the exigency of certainty and efficacy underlined in the Multi-sectoral agreement of 2011. As a consequence, on 21 September Confindustria, CGIL, CISL and UIL restated their commitment to observing the latter agreement, highlighting that ‘industrial relations and collective bargaining are entrusted to the autonomous determination of the social partners’.
Department of Law, University of Ferrara, Corso Ercole I
d’Este 37, 44100 Ferrara, Italy
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Footnotes
Notes
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.