National Labour Law Profile: Italy
Contributed by Aldo De Matteis
1, Paola Accardo
2 and Giovanni Mammone
3
General legal framework
The Italian Republic (Repubblica italiana) came into being in 1946,
after the fall of the fascist regime in 1943, and as a result of
a referendum on the Monarchy in 1946. The Italian
Constitution was approved by the Parliament in December 1947 and came into effect
on
1st January, 1948.
The Country is organized as a centralized State, divided into
Regions, Provinces and Municipalities. Sicily, Sardinia, Alto Adige
(German-speaking region) Valle d’Aosta (French-speaking
region) and Friuli (a region with Slavic minorities) have special
statutes.
In recent years a political debate took place, to change the form
of the State into a Federal one. Some ordinary laws have already
decentralized more power to the Regions.
The Head of the State is the President of the Republic. He or she
is elected by the Parliament in joint session, for 7 years.
The Legislative is composed of two chambers, namely the
Senato (315 seats) and the Camera (630 seats), without
any substantial difference in competence. Furthermore, anyone who
has been President of the Republic is a senator by right and for
life unless he renounces the nomination. Also, the President of the
Republic may nominate as senators for life five citizens who
have brought honour to the Fatherland through their outstanding
achievements in social, scientific, artistic and literary
fields (art. 59 of the Constitution). Both the Chamber of
Deputies and the Senate of the Republic are elected for five years.
The government of the Republic is made up of the President of the
Council and the ministers, who together form the Council of
Ministers. The President of the Republic nominates the President of
the Council of Ministers, and on the latter’s proposal, the
Ministers. The government must have the confidence of both houses
of Parliament.
All laws must be approved by both Chambers; but some less important
laws can be approved by Commissions of both Chambers, not in
plenary Assembly. According to Sect. 10 of the Constitution,
Italy's legal system shall conform with the generally recognized
principles of international law. Treaties must be ratified by
Parliament.
European Community Acts and Regulations, as well as European Court
of Justice judgements, are applied directly in the Italian legal
system.
The Judiciary is a professional and pyramidal body, composed of
three instances. Judges are appointed after a competitive state
exam; their career depends on the Consiglio Superiore della
Magistratura, an administrative body composed of 33 members,
the Head of State, the first President of the Supreme Court, the
General Prosecutor, 20 members elected by judges, and 10 by
Parliament. Normally there is one judge in first instance, three in
the second, and five in the Supreme Court of Cassazione. Aa recent
law - Act 374 of 1991 - has established that lower cases are ruled
in first instance by a non professional judge, called
“giudice di pace”.
For jurisdiction on labour issues see number 16, settlement of
labour disputes.
Labour rights in the Constitution
The Constitution contains some declarations of principles (e.g.
Sect. 1 - Italy is a democratic Republic founded on
labour; Sect. 4: the Republic recognises to every
citizen the right to work; Sect. 35 - the Republic
protects work in all its forms and applications), and some
more effective rules, largely employed in case-law: Sect. 36 - on
fair pay, the maximum working hours, the weekly and annual paid
vacation (see number 5, 6 and 11); Sect. 37 - on the protection of
women and of minors on the job (see number 7 and 9); Sect. 38 - on
the social insurance for old age, illness, invalidity, industrial
diseases and accidents, etc.; Sect. 39 - on Freedom of Association
(see number 12); Sect. 40 - on the right to strike (see number 15).
^ top of the page
Contract of employment
The contract of employment is considered indefinite except in cases
specified by legislation (Act 230 of 1962). Fixed-term contracts of
employment are permitted to the extent that they are justified on
grounds such as seasonal work, replacement of employees on sick
leave or maternity leave, and extraordinary and occasional work.
Pursuant to Act 56 of 1987, collective agreements may authorize
other cases of recourse to fixed-term contracts of employment.
Until recently, a breach of legislative requirements on
fixed-term contracts led to employers typically being
required to employ the employee indefinitely. Recently, however,
Act 196 of 1997 (the “Treu Act”) has limited this
sanction to ongoing violations. If employment continues for ten
days beyond the expiry date, the employer is liable to pay 20 per
cent extra remuneration; for 20 days beyond the end date, 40 per
cent extra; and only then is the contract required to be converted
into an indefinite one. A fixed-term contract will also be
deemed to be indefinite if the employee is rehired in less than
either ten or 20 days from its expiry (ten days for contracts of
less than six months' duration; 20 days for contracts of six
months' duration or more).
The main types of special contracts of employment are as follows:
apprenticeships, part-time, solidarity contracts (these are
intended to assist in maintaining employment during periods of
business difficulties), "work-training" contracts,
fixed-term contracts, domestic work, work undertaken by
building caretakers, work with temporary agencies, and contracts
for managers (dirigenti).
Suspension of the contract of employment is pemitted under
Sect. 2110 of the Civil Code in case of industrial accident,
illness, maternity (two months before and three months after
childbirth); in these cases the employee is entitled to an
allowance from social insurance (paid in advance by the employer)
which covers about 2/3 of the salary; collective agreements
frequently provide for the employer paying the remaining 1/3 of the
employee’s salary.
As far as fixed-term contracts are concerned, termination is
automatic at the end of the specified duration or on completion of
the specified task (Act 230 of 1962). Nevertheless, the employer
may terminate the contract earlier for "just cause" (Sect. 2119,
Civil Code).
The Civil Code provides that each contracting party (the employer
and the employee) of a contract of indefinite duration can
terminate it, provided the notice period is respected (Sect. 2118),
or without any notice in case of just cause (sec 2119). However,
Act 604 of 1966 (which implemented a collective agreement on the
issue) introduced limitations on the employer’s freedom to
dismiss, for companies employing more than 35 people. This was then
extended to all organizations regardless of size by Act 108 in
1990; now termination by the employer is only possible for a
"justified reason” and provided that the notice period is
respected; or without notice for a just cause (Sect. 2119, CC).
Collective agreements frequently list the grounds for dismissal.
Termination without grounds is limited to trial periods, domestic
workers, employees who have reached retirement age and directors.
Dismissals on the grounds of political opinion, trade union
membership, sex, race, language or religious affiliation are null
and void. Furthermore, members of workers' committees may not be
dismissed or transferred for one year following the cessation of
their duties on the committee without the authorization of the
relevant regional trade union organization (Sect. 3, Act 108; this
law also applies to directors and domestic workers). Dismissal on
the grounds of pregnancy, if the dismissal takes place between the
conception and the end of the female employee's statutory period of
absence on confinement leave or unpaid leave, until the child
reaches one year of age, is also expressly prohibited. Dismissal on
the grounds of marriage is also prohibited. Protection against
unfair dismissal of managerial employees is regulated by collective
agreements.
In case of unjustified dismissal, remedies are different according
to the size of the firm: employers employing more than 15 employees
(or five in the agricultural sector) in anyone establishment,
branch, office or autonomous department, and employers employing
more than 60 workers, wherever located, are required to reinstate
the dismissed employee, and to pay damages at a rate of not less
than five months' pay. Alternatively, the employee can refuse
reinstatement and request payment of damages equal to 15 months'
pay. If the employer invites the employee to return to work and the
employee does not take up the offer within 30 days, the contract is
automatically terminated.
Where there are fewer than 15 employees in a unit or fewer than 60
employees in total, the employee unfairly dismissed has no right to
reinstatement, but is entitled to compensation ranging from 2,5 to
six times the monthly pay.
The employees of charity, union or political organizations are not
entitled to be reinstated (Sect. 4 Act 108 of 1990).
The contract of employment may also be terminated by the
resignation of the employee, provided a notice period is respected.
However, an employee may resign with immediate effect in
circumstances specified in Sect. 2119 of the CC (such as
non-payment of wages or social security contributions,
closure of the enterprise, failure to be included within the
category or grade corresponding to the work effectively being
undertaken, refusal to grant holidays, the unilateral changing of
the employee's duties with a corresponding reduction in wages,
offences by the employer against the duty to safeguard the
physical and psychological well-being of the employee (under
Sect. 2087 of the Civil Code).
Act 223/1991, on collective dismissals, provides for special
procedures of information and bargaining with unions before
terminating contracts, and special indemnities for the employees
that are to be made redundant, according to EU directives.
Severance payment
For any termination of the contract of employment, on whatever
ground, even for dismissal for just cause or resignation, the
employee is entitled to receive from the employer a severance
payment (trattamento di fine rapporto) which is considered
to be a part of salary, set aside every year and kept by the
employer (for whom it is an important source of self-financing),
based on the formula of 7,5% of every year’s salary, plus
revaluation according to a composed index of 75% of price index
increase +1,5% (Act 297 of 1982, the “Giugni Act”).
The trattamento di fine rapporto may be partially (i.e. up
to 70 per cent) paid in advance, provided two conditions are met:
a) the employee has reached eight years of service, and b) he/she
intends to purchase his/her household’s residence, or needs
to withdraw the trattamento di fine rapporto for health
care (Act 297 of 1982), extended leave for child care or
educational leave (Act 53 of 2000, Sect. 7, see number 7 and 8).
^ top of the page
Hours of work
Article 36 of the Constitution establishes that maximum working
time must be fixed by law.
The old Act no.692 of March 1923, still partly in force, provided
that the hours worked by employees ought not to exceed 8 hours
a day or 48 hours a week (later changed to 40 by Act n. 196/1997,
Sect. 13).
All these limitations are applicable for effective working time.
Surveillance jobs and waiting time can have a different evaluation.
Of course self-executing limitations of EEC Directive no.14/93
(and in the near future of EC Directive no.34/2000) must be
taken into account in the domestic law.
Collective agreements determine the normal weekly working time
(never more than 40 hours).
Some enterprise-level agreements provide for a more substantial
reduction in weekly working time in connection with a new shift
system which allows a more intensive use of machinery and thus
increased productivity.
Work performed in excess of 40 hours a week is overtime. Different
overtime limits can be fixed by collective agreements. In
principle, overtime should be occasional or due to exceptional
reasons which cannot be met by the hiring of new workers.
Act 196/1997 requires a specific authorisation by the
Department of Labour (Inspectorate) for work exceeding 48 hours a
week (in practice: more than 8 hours overtime).
Under Act 623, of 1923, still in force, overtime must be paid with
an increase of not less than 10 per cent over the regular rate.
However, the italian courts have ruled that such provision applies
to all the remuneration an employee earns from his/her employer
(i.e. basic pay plus any bonus such as cost of living bonus,
allowances for night work or shif work, etc), so that in practice
overtime pay is worth about 30 per cent over the basic rate. Many
collective agreements provide that overtime pay will be not less
than 30 per cent, but they can also provide – and they often
do – that this bonus will be calculated on the basis of a
narrower definition that the above. There are also extra costs
(e.g. a higher rate of compulsory contributions to The Public Fund
for Unemployment Benefits).
Special pay increases are fixed by collective agreements for
overtime worked on Sundays, on other holidays and night work. Night
work has been recently settled by Act no.25 of 1999.
Working time is normally established by the employer, within the
limitations cited above, and can be changed.
For part-time work, the distribution of the working hours is
established by an individually written contract which cannot be
changed by the employer. Act 63/2000 gives the employer the right
to change the part-time scheduled hours, under two conditions: the
prior consent of the worker, and the increase in hourly wage.
Special provisions in favour of student workers are established by
Sect. 10 of Act 300/1970 (Statute of the Workers’ Rights).
Workers attending regular courses, in State or publicly certified
schools or in schools issuing officially recognised study
certificates, are entitled to a working schedule which favours
attending courses and the preparation of examinations. Student
workers are not obliged to work overtime or on Sundays and must be
given paid days off work to take exams.
^ top of the page
Paid leave
All workers have the right to rest one day a week ( art.36 of the
Constitution) normally on Sunday (Sect. 2109 Civil Code ).
The 24 hour weekly rest period can be shifted only for special
activities, dealt with by Act 370/1934 ( article 5). Workers are
entitled to a compensatory rest.
Act 260/1949 and 90/1954 recognises four national holidays and
other holidays. During these festive days, workers receive regular
pay. If for technical reasons they have to work, they receive
double pay and a further increase (about 50% of normal pay).
All workers have the right to annual paid leave (art. 36 of the
Constitution). The Civil Code provides for a statutory minimum
leave of eight days, for domestic workers only. Minimum leave of
all other workers is determined by collective agreements, which
generally provide for paid annual leave of not less than four weeks
per year. Some agreements foresee additional vacation on the ground
of seniority. During their vacation, employees receive normal pay,
excluding only indemnities connected to the actual work. Italy has
ratified the ILO Holidays with Pay Convention (Revised), 1970 (no.
132) which provides for a minimum leave of not less than three
working weeks for one year of service.
The time at which the holiday is taken is in principle chosen by
the employee. However, the employer may determine a different date
for the employee to take his/her vacation, if the dates chosen by
the latter are incompatible with the requirements of the
enterprise.
^ top of the page
Maternity leave and maternity protection
Female workers have special protection in case of pregnancy and
maternity (Sect. 2110 Civil Code, Act 1204 of 30 December 1971).
From the beginning of pregnancy to one year after the child’s
birth, the employee cannot be dismissed (except for just cause) and
during this period, a woman who resigns has the right to the same
indemnities due for dismissals (provided she gives due notice).
Maternity leave is compulsory for female workers, from two months
before until three months after childbirth. Pre childbirth leave
can start at an earlier date than two months, if the worker’s
work is dangerous for her health or that of the unborn child. On
the other hand it is possible to postpone pre-childbirth leave in
order to increase the leave granted after childbirth.
Some rights, reserved for the mother by Act 1204/1971, have been
gradually extended to the father, at first only in case of the
mother’s impediment, but more recently with many alternative
choices being made available to both parents.
In 1987, for the first time, the Constitutional Court (decision
no.1/1987) extended to the father the right to leave for three
months after birth, where the mother’s caring for the child
had become impossible due to illness or death.
It is also possible for both parents of an adopted child to obtain
paid leave for three months after the effective introduction of the
child into the family (Act no.903 of 1977, Act no. 184 of 1983,
Constitutional Court no. 322/1998).
But only with Act no .53/ 2000 has Italian Legislation really
improved in considering parental leave as a right of the family in
order to protect children.
Both parents have the right to leave for no more than a total of 10
months during the first eight years of a child’s life. A
longer period is possible (up to two years) in case of children
with handicaps (Act 388/2000).
During compulsory maternity leave, the mother is entitled to 80% of
her regular pay from Social Security and the period is counted as
actual work time. Collective agreements usually oblige the employer
to make up the difference to the regular wage.
Subsequent parental leave has now the same economic consequences
for both parents: 30% of regular pay (form Social security) for six
months. For additional time there are different indemnities
depending on the family income.
Both parents have equal right to leave in case of a child’s
illness; without limitation for the first three years of age and
for five days a year until age eight.
More flexibility in the working time schedule for both parents is
now foreseen in article 9 of Act 53 /2000.
The working mother, during the first year, has the additional
right to two hours of daily rest, initially intended for
breast-feeding. Supplementary time is also foreseen in case of
twins or multiple births.
A recently approved law (Act 151 of 26 March 2001) has consolidated
most of the above provisions into a single text.
Act no.196 of 1997 provides for specific incentives (i.e.
reduction of social security contributions) directed at favouring
part-time work for women who want to re-enter the labour market
after at least two years of inactivity.
^ top of the page
Other permitted leave
Sick leave
In case of sickness, the employee’s protection has been
remarkably improved, mainly through collective bargaining. During
sickness, suspension of the contract, with job protection, lasts
for periods usually determined by collective agreements, according
to the employee’s seniority. The average period is about one
year. During this time, the worker is fully paid (by the employer
or by the Social Security). Beyond this period an employee is
usually entitled, under collective agreements, to a further period
of unpaid leave.
Educational Leave
Student workers have the right to paid days off work to take
exams.
Now Act 53/2000 accords great consideration to general and
professional education. Workers with a minimum of 5 years seniority
can request a maximum of 11 months unpaid leave (all together or at
intervals) to attend schools, universities or other educational
training.
Many benefits promoting the education of workers have been
introduced since 1973 by national collective agreements. Workers
are entitled to a number of paid hours off work (150 in general,
up to a maximum of 250 for employees who have to obtain a basic
level of compulsory education) to attend, at public or certified
schools, courses related or not to their professional activity.
In case of military service, job security and seniority are
guaranteed to all workers (Sect. 2111 of Civil Code, Act
no.653/1940, 303/1946, 370/1955).
The Civil Service of Conscientious Objectors and Service in
Underdeveloped Countries have the same consideration (Acts
no.230/1998 and no.49/1987).
Act no. 300/70 accords (unpaid) leave for persons elected to public
office (during the time of mandate) or for elected trade union
representatives. Act 300/70 also guarantees to trade union
officials and union members different possibilities of leave, with
or without pay, in order to fulfil their duties, tasks or rights.
Special leave (with or without pay) or unpaid absences are granted
to workers by collective agreements on the occasion of important
family events.
For his/her wedding a worker usually has the right to 15 days of
paid leave.
^ top of the page
Minimum age and protection of young workers
Article 37, second paragraph, of the Constitution provides that the
minimum age must be settled by Statutory Law.
Act no.345/99 implementing the EC Directive no.33/1994 and Act
262/2000, establish the minimum age at which a person may be
employed at the end of compulsory schooling, however not less than
15 years of age ( ILO Minimum Age Convention, 1973 no. 138).
The capacity to conclude a labour contract is related to the age of
capacity in civil law (settled by Act no.39 /1975 at 18 years ).
But where the minimum age of employment is inferior, the minor can
also exercise the rights and actions deriving from a labour
relationship (Sect. 2 of Civil Code).
Act no. 977 of 1967 and no.345/1999 introduced a special
regulation to protect the work of minors, such as special medical
certificates guaranteeing their physical fitness for work,
periodical medical check-ups, limits on working hours, prohibition
of night work and so on.
Act no.148/2000 is intended to meet the obligations arising out of
the ILO Worst Forms of Child Labour Convention, 1999 (no.182) in
the fight against the exploitation of minors. It also draw
guidance from ILO Recommendation no.190/1999, which supplements the
said Convention.
^ top of the page
Equality
The Italian Constitution (art. 3) provides for the concept of
equality of all citizens before the law without
difference of sex, race, language, religion, political views,
personal and social position. This is a fundamental
concept of the Italian legal system. Italy has also ratified the
International Agreement of Economic, Social and Cultural Rights
(New York, 16 December 1966, national Act 881, 25 October 1977).
The Workers’ Statute (Act 300, 20 May 1970) invalidates any
agreement or action of the employer which constitutes
discrimination for reasons of sex, race, language, religion,
political opinion (Sect. 15). Equality between men and women at
work is specifically recognised and guaranteed by Act 903, 9
December 1977. Act 125, 10 April 1991 provides for affirmative
action to encourage true equal opportunity for women in access
to employment and during employment. Act 604, 15 July 1966
prohibits dismissal for discriminatory reasons such as political
and union views, religion, participation in union activities (Sect.
4). Act 108, 11 May 1990 invalidates dismissal for discriminatory
reasons, such as race, sex, language, political and union views,
religion, and requires always the reinstatement of the dismissed
worker.
Other illegal kinds of discrimination are AIDS discrimination (Act
135, 5 June 1990), age discrimination (Sect. 37 of
Constitution) and handicap discrimination (Act 104, 5 February
1992).
A law on sexual harassment at work does not exist; however, there
is case law on unfair dismissal on this ground.
The Constitutional Court has ruled that equality is a fundamental
right of foreigners as well. For citizens of European Union
countries, Sect. 48 of the EEC Treaty abolishes all
discrimination at work, wage and other conditions of work. Act 40,
of 6 March 1998 affirms equality between other foreign workers
legally resident in Italy and Italian workers.
Legal procedure for individual labour disputes is applied to combat
discrimination at work. There is a fast track procedure on
following grounds: (i) discrimination for union views (Sect. 28
Workers’ statute); (ii) race, ethnical, national or religious
discrimination (Sect. 44 of Act286 of 1998); (iii) men-women
discrimination at work (Sect. 15 of Act 903 of 1977). For other
kinds of discrimination there is the general fast track procedure
(Sect. 700 of Civil procedure Code).
^ top of the page
Pay issues
Sect. 36 of the Italian Constitution includes the right of the
worker to a liveable wage for himself and his/her family.
Under Italian law there is not a statutory minimum wage.Yet most
workers are actually covered by a minimum wage agreement,
established through collective bargaining (see no. 13). Upon
request, judges can also fix a minimum wage, though it would be
binding only on the parties to an individual contract of
employment.
Cassa Integrazione Guadagni
The Cassa Integrazione Guadagni is a state fund within the
scope of the National
Social Security Institute. It was established
by Act 788 of 1954, with a view to protecting the workers’
earnings in the event the enterprise has difficulties. While
initially it covered only industrial enterprises, its scope was
progressively enlarged, so that it now also covers small building
enterprises (as of 1963), agricultural enterprises (1972), the
marketing sector of industrial enteprises in economic difficulties
(1978), contracting catering companies in industrial enterprises
in economic difficulties (1978), journalists in press and TV
activities in economic difficulties (1993), employees in commercial
enterprises with more than 200 employees (1991), some categories
of self-employed workers (e.g. workers in workers’
cooperatives), and in general other specific categories of workers
in specific events such as natural disasters or regional or
sectoral economic crisis.
The Cassa Integrazione Guadagni operates mostly in cases of
suspension or temporary reduction of activity due to causes beyond
the will of the enterprise or the workers, or market fluctuations,
and includes suspension of activity in the building industry due to
bad weather. Workers whose contracts of employment have been
suspended on these grounds can be paid 80% (sometimes up to 100 %)
of their previous earnings within a prescribed ceiling (in 2001 it
was Lit. 1.471.235 per month, and Lit. 1.768.283 for earnings of
more than Lit.3.182.908 per month). This benefit can be paid for up
to 13 weeks, with possible renewal for up to 12 months (in some
territorial areas it can be paid for up to 24 months).
Protection of workers’ claims in case of insolvency of the
employer
In the event of insolvency of the enterprise, the employer-employee
relationship is not interrupted due to bankruptcy (provided the
enterprise continues to operate). Under Section 2777 of the Civil
Code workers’ claims are second in order of priority (after
taxes and court fees) over the employer’s estate. However,
secured creditors are paid before workers in respect of the
employer’s assets that are affected by mortgage or liens.
Only for employees of shipping and aviation companies the
Navigation Code provides that shipping and flying personnel have
priority even over mortgage creditors, after court fees (Sect. 552,
575 for ship crew members, and 1023, 1036 for flying crew members).
Sect. 1676 of the Civil Code gives direct action to the
contractor’s employees towards the employer within the limit
of the sums he is in debt towards the contractor.
Act 80 of 1992 implemented EU Directive 80/987 on the protection of
workers’ claims in case of insolvency of their employer.
Under this law there is a Wage Guarantee Fund administered under
the National Social Security Institute, which takes up the payment
of some specified workers’ claims in the event that they have
been left outstanding because of the insolvency of the employer.
Workers’ claims so protected are the salaries corresponding
to the three final months of the employment relationship, within a
time limit of one year before the declaration of insolvency. Such
payment is, however, limited to three times the ceiling of the
Cassa Integrazione Guadagni Straordinaria. The insolvency is
defined as in the bankruptcy law, which calls for a formal
declaration of insolvency being made by the competent judge.
However, the Guarantee Fund also pays in case of non enforcement of
a judgement (for small enterprises that in Italian law cannot go
bankrupt).
Pursuant to Sect. 2 of Act 297 of 29 May 1982, the Guarantee Fund
also protects severance pay (trattamento di fine rapporto), in case
it cannot be paid due to the insolvency of the employer.
^ top of the page
Trade union regulation
The Italian Constitution recognises the right of citizens to
associate freely (Sect. 19) and the right of employers and
employees to join associations or unions.
Sect. 39 of the Constitution regulates trade unions and specifies
that only the registered ones can obtain legal status and
can make collective agreements valid erga omnes (for
all employers and employees). This provision, however, has
not been enforced because a bill regulating the registration of
unions has never been adopted. Therefore, in Italy unions do not
need any recognition and can organize themselves without any
pre-established legal model. They can conclude collective
agreements, which are legally enforceable under civil law rules,
i.e. on the assumption that the parties to a collective agreement
have stipulated on behalf of their respective membership. Usually
the employers abide by the collective agreements concluded by the
most important unions and employers’ associations and pay
wages in accordance with them for all their employees.
The Workers’ Statute (Sect. 14) recognises freedom of
association and freedom of trade union activity at the workplace.
The same rights are also guaranteed to public employees (except
military staff, who have representatives not belonging to the
unions). Act 121, 1 April 1981 also guarantees union freedom and
activity to the Italian Police (Polizia di Stato, that is
not a military force), except for the right to strike and union
activities which may compromise public security (Sect. 84).
The law does not fix any model of union organization either for the
unions or for the employers’ associations.
For workers the most frequent pattern is the industry-wide union,
which has local, provincial, regional and national organs
(vertical organization). The national unions join together in trade
union federations (horizontal organization).
For the employers there is a similar model of organization, with
provincial, regional and national associations, that join to form
federations. There are three employers’ federations:
industrial, commercial and artisan.
Recently local unions have been formed, which do not join the
traditional federations, but have their own coordinating organs.
Unions are financed by the workers’ dues. Sect. 26 of the
Workers’ statute authorizes the unions to deduct union dues
from the employee’s wages (check-off).
Protection against anti-union practices
Sect. 28 of Act 300 of 1970 (Workers’ statute) provides that
whenever the employer indulges in behaviour designed to hinder or
limit the exercise of freedom of association and trade union
activities, or the right to strike, the local organs of the
relevant national trade unions can demand that the judge (within
whose jurisdiction the anti-union conduct complained against has
taken place) order the employer to cease and desist from his
illegal conduct and to redress any grievances or obviate the
effects thereof.
Under case law a number of employers’ actions have been
deemed to be anti-union behaviour, and are therefore
prohibited. These include dismissal of workers on strike; the
hiring of third parties to replace workers on strike; retaliation
against workers that undertake legal strike action; failure to
inform the unions on issues regulated by collective agreements;
direct bargaining with the workers, thus bypassing the unions; to
infringement of union rights fixed by law, e.g.. not to reserve a
room for union meetings inside the factory; not to permit the union
to have a board to post union information, to interfere with union
proselytism, etc.
Under Section 28, the judge must summon the parties within the
following two days and take a summary deposition of the facts at
issue. If he is satisfied that there has been anti-union behaviour
on the part of the employer he shall order the latter by an
immediate executory judgement to stop such behaviour. This order is
immediately enforceable, and shall remain in force unless and until
it is reversed by a higher court decision.
An employer who does not comply with an order to cease anti-union
behaviour shall be liable to penalties under section 650 of the
penal code, (i.e. up to 3 months of arrest or a fine of 400.000
Lire).
^ top of the page
Collective bargaining and agreements
Unions can freely negotiate collective agreements at provincial,
regional and national levels. Trade union security clauses such
as union shop, closed shop, etc. are unknown in the Italian
legal system. Under Art. 17 of Law 936/86, which reorganized the
National Council of Economy and Labour (CNEL), collective
agreements and accords must be
registered with the CNEL within 30 days after they have been
concluded. The so-called economic accords are agreements
that cover some categories of self-employed (i.e. commercial
agents, some doctors working for the National Health Service, etc,
also known as lavoratori parasubordinati).
The Collective
Agreements Archives can be consulted online.
Collective bargaining can regulate all aspects of the
employer-employee relationship, except those that are regulated by
law (for the effects of collective agreements see no. 12).
Most categories of workers (roughly 95 per cent) in Italy are
covered by a collective agreement. However this does not mean that
collective agreeements actually cover 95 per cent of all contracts
of employment, because they are binding only on the parties that
have signed the agreement, as well as the employers and workers
legally represented by such parties under Civil Code rules (i.e.
they apply only to members of the organizations that have signed
the agreement). So it would be necessary to verify if at least the
employer is a member of the employers’ association that has
signed the agreement, in which case the agreement would cover
his/her employees, whether or not they are members of the relevant
trade union. Should the employer not be a member of such an
association the agreement would not be binding on him or her.
Nonetheless, the judges can take into account the minimum wage that
has been fixed in the agreement as a parameter in view of fixing a
fair salary pursuant to Sect. 36 of the Constitution (see
Section 11, above). The judge may therefore rule that an employee
not covered by an agreement shall, however, be paid at a rate not
less than the one established under the agreement that applies to
his/her category and industry.
^ top of the page
Workers’ representation in the enterprise
The unions joining the biggest federations have a very important
function in collective bargaining in public employment and receive
protection in view of trade union activity at the plant level. The
Workers’ Statute, 1970, regulates plant level union activity.
The Statute has been an important means of support of the unions at
plant level.
The Workers’ Statute (Sect. 19) specifies that workers can
choose representatives, who form plant level union bodies. These
representatives have particular rights fixed by the Workers’
Statute, like the right to call meetings and referendums of
workers, Sect. 20-21; protection from the relocation of their
leaders, Sect. 22; permission for union activity, paid or not,
Sect. 23-24; bill-posting rights (Sect. 25); right to obtain a
representative’s room (Sect. 27).
For public employees there is a different system of
workers’ representation (Act 29, 3 February 1993), but the
rights are the same. Collective agreements regulate election and
duration of office of workers’ representatives. A change of
the representatives follows after the signing of a new
collective agreement.
Collective agreements do not recognise for the workers’
representatives any co-determination right, but only the right to
be informed and consulted on the most important decisions of
the company.
^ top of the page
Strikes and lockouts
Strikes
The Italian Constitution recognises the right to strike, which must
be exercised within the limits fixed by the law (Art. 40). However,
only one law exists, that regulates the right to strike, and that
is for the public essential services (Act 146, 12 June 1990);
thereforethere is a large freedom to strike.
Under the law of 1990 the notion of public essential
services relates to certain rights protected by the
Constitution referring to the life, health, freedom, safety,
freedom to circulate, social assistance and provident fund
(previdenza), instruction and freedom of communication of
the persons. The law further specifies which services or activities
are to be included in the definition of public essential
service. It foresees that where a strike occurs in such
services, a minimum service shall be guaranteed, the modalities of
which shall be agreed upon by the administration (or the enterprise
that administers the essential service) and the union’s
representation at the enterprise level (or the workers’
representatives where appropriate). Furthermore, the party that
goes on strike must give strike notice of not less than ten days,
and must indicate the duration of the strike action.
Act 83, of 11 April 2000 has extended the above law to the public
essential services fulfilled by a number of categories of
self-employed workers, professionals and artisans, such as lawyers,
doctors, taxi-drivers, petrol stations, lorry-drivers and so on.
Some workers cannot strike (military personnel and policemen); for
others the right to strike has some limits (for example seamen
cannot strike during navigation).
Unions have a self-regulation code of strike.
Lock-outs
A specific regulation does not exist in the Italian legal system.
When the employer locks out the workers he/she breaches the
contract of employment and must pay wages. However, under case law
there is not a breach when the lockout is a consequence of a strike
by the workers and the industry is unable to continue production.
^ top of the page
Settlement of labour disputes
Labour Courts are integrated into the organization of the general
civil court system, but follow special procedure.
A special jurisdiction on labour issues was established in 1893,
with an Act which introduced a “consiglio di
probiviri”, composed of representatives of employers and
employees, for lower cases.
The fascist reform of 1926 transferred all cases to professional
judges, and so it remained till now. Act 533 of 1973 provides
special procedural rules, which reduces the amount of written
material at a labour trial, increase participation by the
litigants, and speed up the trial. There is one professional judge
in the first instance, whatever the monetary amount of the case,
whose decisions can be appealed before a Tribunal of three judges,
with a possible further appeal before the five member Supreme Court
Labour Chamber.
Act 80 of 1998 transferred to the labour courts the competence to
hear cases brought by civil servants, which were previously dealt
by the administrative courts. The same law now requires the
plaintiff, before he/she sues in the Court, to try to resolve
his/her dispute through conciliation before a public labour office,
or through a union dispute resolution procedure.
There is not a procedure for collective disputes, except for the
possibility, introduced by the Act 80 of 1998, of asking the
Supreme Court for the immediate interpretation of a collective
agreement signed by the union of civil servants.
^ top of the page
Links
Selected Publications
The bibliography on labour law issues is boundless.
Just a few names of the main general textbooks on labour law and
on labour procedure:
- Carinci, Franco e D’Antona, Massimo, Il lavoro alle
dipendenze delle amministrazioni pubbliche, Milano, Giuffrè,
2000, 3 voll.
- Galantino, Luisa, Diritto del lavoro, Torino. Giappichelli, 1995;
- Galantino, Luisa, Diritto sindacale, Torino. Giappichelli, 1996;
- Galantino, Luisa, Diritto comuniatrio del lavoro, Torino.
Giappichelli, 1999;
- Ghera, Edoardo, Diritto del Lavoro, Bari, Cacucci, 1998
- Giugni, Gino, Diritto sindacale, Bari, Cacucci, 1993
- Ianniruberto, Giuseppe, Il processo del lavoro rinnovato, Padova,
Cedam, 1999
- Luiso Francesco P., Il processo del lavoro, Torno, Utet, 1992
- Pera, Giuseppe, Manuale di diritto del lavoro, PadOVA, Cedam,
2000,
- Pera, Giuseppe, Compendio di diritto del lavoro, Milano
Giuffré, 2000,
- Pera, Giuseppe, Codice del lavoro, Milano Giuffré, 1997,
- Mazziotti, Fabio, Diritto del lavoro, Napoli, Liguori, 1998
- Proto Pisani, Andrea, Le controversie individuali di lavoro,
Torino, Utet, 1993
- Proto Pisani, Andrea, Lezioni di diritto processuale civile,
Napoli, Jovene, 1999
1.
, Judge of the Supreme
Court of Cassation, Labour Chamber. Visiting Professor at the
University of Siena, on Labour Procedure. Author of the following
books: L’ assicurazione obbligatoria contro gli infortuni sul
lavoro e le malattie professionali (Public Insurance for
Industrial Accidents and Diseases), Torino, 1996, pp.XIX-798; La
trasferta del lavoratore (The Transfer of the Employee), Milano,
1988, pp. 288; Il trattamento di fine rapporto (The Severance Pay),
in Commentario al codice civile, Torino, 1993.
2.
Judge of Court of Appeals,
Labour Chamber, Milano; expert in comparative Labour Law and Social
Security.
3. Giovanni Mammone; Judge appointed to the
Supreme Court of Cassation, Labour Chamber. Author of the following
books: I provvedimenti di urgenza nel diritto processuale civile e
nel diritto del lavoro (Fast-track procedure in civil procedure
code and in the labour courts), Milano, 1997, pp. XIX-968 (written
with Enrico Dini); Igiene e sicurezza nell’ambiente di lavoro
(Industrial Safety), Milano 1993; Salute, territorio e ambiente,
Padova, 1985.
|
