Notes about the art. 51, legislative decree 15 june 2015, No. 81: trade union representativeness and negotiation of rights

di Flavio Vincenzo Ponte

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Summary

  1. Article 51, legislative decree 15 June 2015, n. 81: the functionalization of bargaining “over” the stipulating parties
  2. The homogenization of bargaining levels and the downsizing of representativeness
  3. The dogma of the mandatory law: negotiation of rights and transaction costs

 

1.      Article 51, legislative decree 15 June 2015, n. 81: the functionalization of bargaining “over” the stipulating parties.

Article 51, legislative decree 15 June 2015, n. 81, states that “Unless otherwise specified, for the purposes of this decree, collective agreements are understood to mean national, territorial or company collective agreements stipulated by trade unions that are comparatively more representative at national level and the company collective agreements stipulated by their company union representatives [RSA] or unitary union representation [RSU]”.

Preliminarily, it seems useful to question the function of art. 51[1] and, in particular, as provided for in the first part of the article (the one referring to the “national level”).

The Legislator has long preferred the adverb comparatively to the traditional one anchored to the greater representativeness[2]. The ratio for this predilection is commonly attributed to the need to govern phenomena that have nothing or little to do – at least directly – with the government of the rules set up to protect the trade union dialectic and/or the relationship between different unions.

We have to refer to art. 1, law 7 December n. 389 (conversion of Law Decree 9 October 1989, No. 338), which would later become a real defensive bulwark to be opposed to a certain liveliness of the bargaining: in accordance with art. 1 of the Law Decree of 1989, “The remuneration to be used as a basis for the calculation of social security contributions can not be less than the amount of wages established by laws, regulations, collective agreements, stipulated by the most representative trade unions on national basis, or by collective agreements or individual contracts, if there is a pay of an amount higher than that provided for by the collective agreement “.

As is evident, the norm even evokes a pseudo-definitive judgment (“more representative”).

Because of this difficult reference, the Legislator was forced to return to the subject: in 1991, with the art. 7, paragraph 1, Law Decree of March 23, n. 103, concerning the taxable salary for prisoners and interns admitted to work in prison[3] and, above all, in 1995, with the law n. 549 of 28 December, whose article 2, paragraph 25, clarifies that “the art. 1 of the Decree-Law of 9 October 1989, n. 338, converted, with modifications, from the law 7 December 1989, n. 389, is interpreted as meaning that, in the case of a plurality of collective agreements intervening for the same category, the remuneration to be used as a basis for the calculation of social security contributions is established by collective agreements stipulated by the trade unions of workers and employers comparatively more representative work in the category”.

The reference to collective agreements stipulated by comparatively more representative trade unions has a different function from that traditionally carried out by the reference to the most representative organizations: it is a useful reference to select a “reliable” contract from the point of view of protecting – above all – reasons that transcend the immediate interest of the stipulating parties (and of the “weak” part of the contract).

According to the ratio animating the rules of authentic interpretation cited above, in fact, it can be appreciated the protection of general interests and, in particular, of reasons attributable to the public law of the economy. The identification of a particular collective agreement, in a pluralistic context and characterized by the existence of different contracts, stipulated by different subjects, under a regime of almost total (or poor) measurability (with reliable instruments) of trade union representation, represents a decisive operation for the determination of the salary[4] for the calculation of social security contributions and, therefore, for the calculation of sums that are collected by the State to finance, for the most part, a system based on solidarity.

This is also confirmed by the interpretation offered by the jurisprudence called to scrutinize the boundaries of the reference to the comparatively more representative trade union organizations.

The italian Supreme Court has stated on several occasions that “… the amount of remuneration to be taken as the basis for calculating social security contributions can not be less than the amount that the workers in a given sector would be due under the collective agreements stipulated by the most representative trade unions on a national basis (so-called minimum contributory), according to the reference made to them – with exclusive impact on social security – by art. 1 of the d.l. n. 338 of 1989, converted into law n. 389 of 1989, without the limitations deriving from the application of the criteria set forth in art. 36 cost (so-called minimum constitutional retribution), which are relevant only when such contracts are used – with consequent influence on the distinct employment relationship – for the purpose of determining the correct remuneration”[5].

This argomentations allowed the same jurisprudence to exclude the circumvention of art. 39 of the Constitution because of the assumption – albeit only on the theoretical level – of erga omnes effectiveness of the national collective agreements stipulated by the associations considered comparatively more representative, considering the limit of this extension to the economic part of the contracts and with the sole function of a minimum common contribution, suitable to achieve the aims of the social security system and to guarantee a substantial equality of employers in the financing of the system itself[6].

Therefore, following the legislative approach and its endorsement of the jurisprudence, it does not seem possible to affirm that the reference to the comparatively more representative trade unions is useful to select – at least directly – the stipulating trade union. This selection seems to occur only in terms of consequences, because of the choice of a specific collective agreement that is stipulated by some and not by others.

It is true that the reference to the comparison moves, in the course of time, also in another direction, that is, in the sense of allowing some collective agreements (and, upstream, a certain bargaining mechanism) the production of particular effects, according to the referral technique as a supplementary, authorizing, derogatory[7] function: even in these cases, however, it does not seem that the referral is useful to “select” a particular association, being quite evident that the “referring” Legislator’s attention is rather focused on the tool (id est: on the “type” of collective agreement) and on its application/applicability to a certain context[8].

If the art. 51 would be used to “select” the stipulating association[9] we would probably find ourselves before a “short circuit” which should face the obvious objection of unconstitutionality linked to the substantial circumvention of art. 39 of the Constitution and should face, on the merits, other objections essentially linked to: a contrasting effect with the substratum in which the rules adopted over time and containing the reference to the comparison are rooted; an ungovernable expected effect that – and the same could be said in general with reference to any adverb used by the Legislator regarding the “measurement” of representativeness – representativeness in a comparative sense is in itself meaningless given that the measurement of the trade union capacity to represent anyone discounts the duty of the exquisitely sociological dimension of the concept itself of representativeness; an effect potentially able to determine a “short-circuit” since the reference to the comparison is traditionally made by the Legislator to protect general interests that transcend the interests of the parties and, therefore, even the interest of the trade unions stipulating a contract.

Therefore, it comes out just the useful dimension for the selection of a particular collective contract: which does not facilitate the systematic interpretation of the art. 51 and, if possible, complicates it.

Article 51 is packaged pursuant to the provisions set by law December 10th 2014, no. 183 (delegation regarding the reform of social safety nets, employment services and active policies, as well as the reorganization of the regulations governing employment and inspection activities and the protection and reconciliation of the needs of care, life and of work – so called Jobs Act 2).

Well, the delegating law makes explicit reference to collective bargaining only in the following cases: art. 1, paragraph 7, lett. e), regarding the further hypothesis of downgrading; art. 1, paragraph 7, lett. g), regarding the minimum hourly compensation[10]; art. 1, paragraph 9, lett. d) on the subject of incentives for collective agreements aimed at favoring the flexibility of working hours and the use of productivity bonuses[11]; art. 1, paragraph 9, lett. e) on the sale of weekly rest and annual vacation.

No reference can be seen to the meaning of the phrase used in the art. 51 and no restrictions on the use of this phrase; indeed, on closer inspection, there is no reference (and the absence of reference also seems to characterize the parliamentary work sessions[12]) to the role of collective bargaining in the management of the various cases subject to delegation.

Nevertheless, in the legislative decree n. 81 the references to collective bargaining are numerous and, in some cases, transcend the provisions of the delegation: it is the case of coordinated and continuous collaborations and the case of the discipline dedicated to part-time, temporary work, intermittent work, apprenticeships.

These are references that in various ways evoke the functions mentioned above (supplementary, derogatory and authorizing) and that, for the most part, allow either a lowering of protections or the production of ablative effects.

In essence, although carving out a space that does not seem to be identifiable in the delegated law of 2014, the art. 51 – first part – refers to the comparison with the main purpose of entrusting a reliable collective agreement with integrations/derogations/authorizations, thus excluding – and in this case a sort of (indirect) selection of the unions would finally be identifiable – unreliable subjects or “convenience trade unions”.

But the art. 51 also hosts a second part, expressly addressed to the “collective labor agreements stipulated by their company union representatives or the unitary union representation” and expressly linked to the first part of the article by the conjunction “and”, which equates the effects produced by national collective agreements , territorial or company contracts stipulated by the trade unions that are comparatively more representative to the effects produced by company collective agreements stipulated by their company union representatives or by unitary union representation.

The equalization of the levels of bargaining, which is substantially reflected in the law, appears to be an “original” initiative and, moreover, not very manageable without special measures that could lead, however, to a real operation of legal engineering.

At first reading, in fact, it seems that the Legislator wanted (although “for the purposes of this decree”, as stated in the beginning of Article 51) to create a discipline aimed at shifting the center of gravity of trade union relations to the benefit of the company, perhaps considered tout court more suitable to manage those – as said before – supplementary, derogatory and authorizing functions.

Otherwise arguing, we should try to make sense – even on the logical-grammatical level – to the formulation of the article (first and second part are linked by the conjunction “and”) and we should equip for to attribute to the current link between the trade unions (referred to in the first part of article 51) and “their representations” (in the second part) a different meaning from that which literally emerges from the text.

The two parts, then, must be read together and, therefore, one must confront a revirement (it is not clear whether conscious or involuntary) that recalls the centrality of the company bargaining of the first half of the 1900s and with the urgency of reconsidering the concept of representativeness on a par with – on the one hand – the peer-ordering of the levels of bargaining and – on the other hand – the encouragement of a peripheral negotiation.

 

  1. The homogenization of bargaining levels and the downsizing of representativeness.

The equalization of the two levels of bargaining necessarily determines the downsizing of the problem of representativeness on the national level considering that the so-called integrative, authorizing and derogating functions can be carried out by contracts stipulated by two subjects: the employer and the RSA (company union representatives) or the RSU (unitary union representation)[13].

The power of the trade union association to exercise controls and pressures on employers through the union representatives (especially if we talk about the corporate level) remains firm; but it is also true that the game is now played – and this is the point – on the contents of the contract and no longer on the appeal of the trade union that signs it or on the ability to attract consents and demonstrate – in fact – reliability.

In other words, using a particular adverb to choose the collective agreement to be applied ever implied a positive prejudice: over time, in the absence of certain tools to measure the representativity, we have recourse to a datum partly historical and partly verifiable on the political-relational level to identify the negotiating discipline to which reference should be made.

Moreover, jurisprudence has had to rely on these elements to orient itself in contexts populated by a high number of contracts and participated, therefore, by different trade unions, adding, moreover, concrete informations: substantial number of members; balanced distribution within represented categories; significant territorial presence at the national level; conducting self-protection activities with continuity, systematic and balanced diffusion, vertical and horizontal, consistent, in particular, in the signing of collective agreements[14].

This being the case, then, the problem of representativeness appears to be resizable and the plan of discussion inclines to the benefit of the contents of the collective agreement: the employer’s part is not considered by art. 51; what matters is only the accreditation by the union or the negotiation and, at company level, the existence of RSA / RSU.

Which means – arguing otherwise – that the national collective agreement stipulated by a trade union association that can be defined as comparatively more representative with an organization that can not be defined in such way, can be surely considered for the purposes of art. 51, since the law does not involve organizations that protect the interests of employers.

In other words, the accreditation mechanism could well work in reverse: it would be the employer’s organization to benefit from the effects deriving from the stipulation of the contract, both on the political and on the reliability level, since it has been chosen by an accredited trade union association and regardless of a value judgment that could be applied to it.

And then, in the art. 51 – which selects the contract and not, at least directly, the trade union and which does not (always directly) select the employer’s organization – the concept of representativeness takes on a different connotation with respect to the past. The contract (at the corporate level) occupies a central position and appears to be increasingly beneficiary of legislative attention (in continuity with what was already stipulated in 2011, with the article 8 of the Law Decree of 13 August 2011, No. 138, converted into law September 14, 2011, No. 148); in this context the theme of the inactuation of the art. 39 of the Constitution also seems to be reduced because the measurement of representativeness has traditionally been anchored to the need to implement a mechanism (alternative / complementary to that envisaged in the constitutional project) for the governance of trade union pluralism; the problems connected to this pluralism fade in the presence of highly localized bargaining and developed within production contexts.

Of course, diametrically opposed considerations could be elaborated by entrusting the fulcrum of reasoning to another point of view: it is clear that in a system strongly influenced by the application of the interconfederal rules (above all, the so-called “Testo Unico” approved on January 2014[15]) the link between the national level bargaining and the corporate one could be suitable to reinvigorate the issue of representativeness, given the rules set up to guard the relationship between different levels of bargaining and considering the ability of the confederations to affect the elections of the RSU[16].

The point is that in a highly pluralist context, the smaller trade unions (but with particular ability to penetrate in certain contexts and / or on behalf of certain categories) who are able to get accredited and who are able to participate in separate negotiating tables, would not join the system created by the great confederations and, therefore, would hardly apply the rules established by them. And the “autonomist” chance seems to draw nourishment from the reasoning conducted by the Constitutional Court in 2013[17] considering that the establishment of RSA is not bound to the signing of a contract.

This could obviously advantage a parallel national bargaining to the one developed by the comparatively more representative trade unions or – more profitably – for the benefit of a company bargaining that does not suffer from the application of any adverb for the measurement of reliability of the contract concluded.

This should not lead to consider – overvaluing it – the art. 51 as a rule having a “purgative” effectiveness: there is still to be noted that the mechanisms of accreditation are rooted in mutual recognition which, if founded on good faith and correctness[18], rests in the ability to represent trade union’s own associated, first of all, on a numerical level and, then, “weighed” on the basis of the parameters mentioned above to which the jurisprudence has long been entrusted.

However, there is that art. 51 opens a certain breach in the reasoning concerning the representativeness and in the centrality of the same in the debate: the equalization of the levels of bargaining could absorb, overcoming it, the interconfederal system (which – instead – is firmly anchored to the principle of competence) and could allow, evidently, to a “homemade” bargaining.

 

  1. The dogma of the mandatory law: negotiation of rights and transaction costs.

The concept of representativeness needs the verification of the capacity of a representative association to stipulate a collective agreement.

This ability – and this is precisely the point – must still be measured by firmly holding the constitutional principle contained in art. 39 which – although not implemented – still admits, on the one hand, the existence of a complementary system and requires – on the other hand – the full application of the majority principle.

This is a question that must be dealt with, except for wanting to make a real overcoming of the (granitic) principle according to which the trade unions protect collective interests.

In essence, it does not seem risky to state that the problems created by art. 51 are greater than those that the same article could solve: the substantial equalization of bargaining levels perhaps simplifies the matter and – as we said – perhaps encourages the substantial overcoming of the historical controversy around the concept of representativeness, making it more “practical” in a context (the company level, in fact) in which it is possible to negotiate; the substantial equation of bargaining levels, however, could trigger a sort of confusion, with consequences that should be evaluated.

In other words, equating the effects produced by different levels of bargaining means in some way to assume that the subjects operating on different levels have, in fact, the same capacities and offer – consequently – the same guarantees.

In my opinion, this is a gamble that does not take into account the value of the non-transferability of certain labor standards and the size that should host/contain the legislative references to collective bargaining[19].

There is no doubt whatsoever about the centrality of the topic in the more recent doctrinal debate: it is quite widespread the fear that the mandatory law has become a real cost, which is paid – at the systemic level – with the currency of inefficiency[20].

And then, proceeding with order, we can express some considerations:

Probably the dogma of the mandatory law still exists, but it behaves differently from the past.

The legislative intervention of the ’60s /’ 70s and the “emergency” legislation of the ’80s may be considered, probably, phenomena due to a certain paternalism[21] of the Legislator.

These phenomena are perhaps referable more to an attempt to reaffirm that social and economic equality – in the context of the relationship – for workers[22] than to a choice aimed at confining private autonomy in a corner for macroeconomic reasons[23].

Nonetheless, these interventions have also marked the path taken by the Legislator of the 1990s and 2000s (and beyond): keeping a general look at the most important reforms of this period (starting from the 1997 with the so-called “Treu Law”), it does not seem exaggerated to grasp – albeit in the awareness of the evident heterogeneity that has characterized the different regulatory interventions (led, moreover, by different political groups, alternating with increasing frequency from 1994 onwards) – a common thread that has tied the normative production, given the constant attempt to deconstruct the apparatus of rules posed – in the previous 30 years – to oversee the employment relationship.

In other words, it seems quite evident that the reaction of the Legislator to the increasingly frequent moments of global economic crisis has taken place in more or less successful deregulations, on one side, and deconstruction of the protections, on the other side.

So, the dogma of the mandatory law probably assumes a different connotation: it is no longer the monolith opposed to the attempts of private autonomy to grab space in the area traditionally occupied by the law but, rather, the monolith to be sacrified on the altar of efficiency.

And yet the times of crisis of the imperative norm seem to be punctuated by robust injections of rules characterized, however, by a certain orientation and/or purposees.

The reformist period begun (and, apparently, not yet completed) in 2003 with the well-known legislative decree n. 276 has inserted into the system dozens of new rules, all oriented to solve the problems afflicting the labor market.

These rules are rooted in what may perhaps be called a “new dogma”: the Legislator seems to be deeply convinced that the forces that animate the labor market are trapped by the rules imposed on the market and little (or not at all) ) influenced by other factors. The norm afflicts the market; the norm, however, is the remedy, with a peculiarity: in the logic of alternation, the remedy is identified in the thaumaturgical function which is performed by the rule that eliminates/modifies the previous legislation, for various reasons imputed to have contributed to implement the inefficiency of the system.

Article 51 of the legislative decree n. 81 of 2015, however, contemplates a further element: it appears, in fact, a certain confidence nurtured also in relation to private autonomy, exercised collectively.

It could be seen a sort of return to the past: the most recent legislative season seems to favor a sort of revival of the private and voluntary conception of labor law, typical of the beginnings of 20th century, with the addition of a particular attention to the collective dimension.

Yet, if this were so and wanting to cultivate such an idea to the limits of paroxysm, it should be noted that even the doctrine conditioned by the ancient principles (and deprived of that extraordinary instrument that is the Republican Constitution) stated that the integration of the contract by the law is only a compulsory enrichment of its content and that “… once the need for State intervention is felt, it is useless to discuss its categorism: for consistency, if it must be effective, it will almost always have to be categorical”[24].

And then, returning to a more concrete plan, the return to private autonomy does not seem to be the result of an ideological choice (ontologically connected to overcoming the socio-economic inferiority of the workers) but, rather, is proposed as a merely practical remedy, to be set against the misfunctions afflicting the labor market: where the State has failed, the collective bargaining could work as a remedy.

On the basis of this option, there seems to be a reflection anchored to a certain theorizing of the centrality of private autonomy in the market (which could be actually referred to other cultures)[25]; the point, however, is that the centrality of private autonomy is encouraged as a reaction to the inefficiency of the market and not as the physiological condition of a relationship no longer conditioned by the asymmetry of the parts that animate it.

Well, if the mandatory rule is a “virus”[26], the collective agreement – in this case and in particular: at the corporate level – is used as a sort of “pickguard”[27] to facilitate the deactivation of its effects.

In essence, the hypothesis is that the overcoming inefficiency could/should occur by compressing the space occupied by the mandatory rule; from such compression it would inevitably derive the attribution of new spaces to private autonomy, to be practiced at the corporate level.

It is an operation that – as has been observed – determines a shift in the center of gravity of the protection afforded by labor law: already traditionally focused on the protection of the individual worker as a weak contractor, it seems to move towards a collective dimension “… aimed at maintaining employment levels even at the cost of selling something on the level of individual guarantees”[28].

At this point, it is appropriate to be clear: it does not seem useful to marry an ideologically point of view since it can no longer be assumed that the instruments set forty years ago are still able to meet both the need for worker protection and the need for certainty of employers. The dynamics of work relations are intertwined with those conditioning the markets in a context that is anything but unmodifiable[29].

However, it is not useful to ride the idea of total deconstruction of existing rules, since – as has been effectively noted – “… the full freedom of labor relations emptied of guarantees would probably end up drugging the market itself”[30].

Obviously, we are not dealing with freedom in the absolute sense: it has been said that the instrument to which the Legislator entrusts is the collective agreement and, in particular, the collective agreement at the corporate level. Which means, even in the face of what seems a certain injection of subsidiarity, that the protections are far from being dismantled.

The references change, the actors who have the task of building the protections change, the contexts change, but it does not seem possible to eliminate protection: it would be alarming to hypothesize that overcoming the mandatory rule is prodromal to the “far west”.

So we have to focus on other points.

The substitutive effect does not seem affordable: the collective agreement, traditionally classified among the sources in a substantial sense (or, “extra-ordinem”[31]) and, in particular, the collective agreement at the corporate level, can not work as the mandatory rule: as has been effectively noted with regard to the relationship between the national collective agreement and the company contract, “… the ever more extensive faculty to waive the national contract by the company in the name of the fight against “oppressive” uniformity risks to undermine, in fact, the solidarity function that the national contract traditionally assumes. In fact, the minimum conditions established in the national contract, precisely because they are uniform, are determined taking into account the different socio-economic contexts of the Italian territory. The expansion of the company contract by way of derogation, especially if released from the upstream control by the national contract, inevitably risks blowing up the first level of bargaining and the related solidaristic logic, to the full advantage of business disciplines in which the union can be more conditioned by the counterpart”[32].

Which means, according to the relationship between law and collective contract (in particular, corporate collective agreement), that the overcoming of immovability as a tool for governing the genetic moment of the relationship is not feasible with tools that do not have in their genetic heritage the vocation to uniformity/equality and solidarity.

Then, perhaps, we can hypothesize a middle way contemplating some alternatives: as has been argued, “… at least for an essential and characterizing part, labor law must continue to turn against the market “[33].

The mandatory rule can not be identified as the sole responsible for creating/destroying jobs and, therefore, as the only instrument influencing market performances: rules represent an ingredient of a more complex mix and, as structures placed at the foundation of the legal system, they contribute to the maintenance of the kósmos, that is, that order which must be guaranteed in the management of the different forces (and the various tensions) that animate/intercept the relationships[34].

Therefore, the de-structuring of the rules does not seem a value in itself and it is not said that it actually serves the market place that – even in times of crisis and in the face of sudden changes – does not appear to overcome the subjective weakness of the worker in the negotiation relationship and, therefore, the problem of “guarding” the worker through the appeal “even if tempered, to the technique of mandatory legislation”[35].

From this it follows that it is not possible to proceed without a uniform system of protection based on certain rules.

The crisis of mandatory law, therefore, is due to a more general crisis of the means deemed useful as a certain goal.

Goal that, however, must always be coordinated with the needs of workers.

At the beginning of the 20th century every limitation of the liberal principles was suffered and its compression was admitted only by virtue of a public interest[36]; today, continuing on the wave of reasoning conducted more than one hundred years ago, it does not seem possible to affirm that the the mandatory rule is unavoidable.

It is perhaps possible to affirm that at the center of the debate the general interest linked to the need to protect the weak contractor must remain the same: private autonomy does not seem to offer adequate guarantees. It is not a matter of considering the worker a mere minus habens; it is a question of giving due weight to the socio-economic aspect which is at the basis of the concept of subordination.

Which brings us back to art. 51 of the legislative decree n. 81 of 2015 and its placement in the system: the equalization of the levels of bargaining produces – borrowing the expression from the law and economics literature – a saving on the front of the so-called “transaction costs”, understood as costs affecting the production of rules[37].

The point is that the need for homogeneity in the regulation of rights and the solidarity to be impressed on the system require “transaction costs”[38] that, from a neoliberal[39] point of view, might be considered high: however, it should be changed the lenses that can be used to measure costs and it has to be considered that the price to pay due to the deconstruction of the protection could be much more unbearable, especially considering that the phenomenon of peripheral trading of rights is not easily controllable.

Nevertheless, there could be joined a different point of view: several years ago, Harbison and Coleman supported that – although in a context that is entirely different from the italian one[40] – the collective agreement is always aiming at “… progress [to] economic equality, promote freedom, the dignity and value of every individual [and] the strengthening of political and democratic institutions”[41].

These are particularly stimulating reflections that, however, do not seem adaptable – looking for saving points – to the italian case because of the differences between the legal systems and the considerable differences between the contexts: in the 50s Harbison and Coleman studied the so-called mass-production and focused on particularly production systems, in order to define a real model of interaction between the company and the union. The result of their investigation (concerning about 100 different types of contractual relationships), led them to strongly support the centrality of the “… collective agreement in modern society”[42]: the point is that the observed system (id est: the north-american system) did not ever impose a precise choice regarding the technique to be used for the protection of the weak contractor.

 

Notes

[1] U. Gargiulo, Rappresentanza e contrattazione in azienda, Milano, 2017, p. 101 ss.

[2] G. Pera, Note sui contratti collettivi “pirata”, Riv. it. dir. lav., 1997, I, p. 381 ss.; A. Lassandari, Pluralità di contratti collettivi nazionali per la medesima categoria, Lav. dir., 1997, 2, p. 261 ss.; A. Di Stasi, Il potere sindacale nell’ordinamento (debole) del lavoro. Vicende e prospettive, Torino, 2012, p. 21 ss.; P. Tomassetti, La nozione di sindacato comparativamente più rappresentativo nel decreto legislativo n. 81/2015, Dir. rel. ind., 2, 2016, p. 367 ss.

[3] “Article. 1, paragraphs 1 and 2, second sentence, of the Decree-Law of 9 October 1989, n. 338, converted, with modifications, by law 7 December 1989, n. 389, is interpreted as meaning that for prisoners and inmates working for the prison administration, the calculation of social security contributions is carried out on the determination of the amount established pursuant to art. 22 of the law of 26 July 1975, n. 354, in the text modified by the art. 7 of the law of 10 October 1986, n. 663”.

[4] M. Barbieri, In tema di legittimità costituzionale del rinvio al ccnl delle organizzazioni più rappresentative nel settore cooperativo per la determinazione della retribuzione proporzionata e sufficiente, annotation to C. cost. 26 marzo 2015, n. 51, Riv. giur. lav., 2015, II, p. 493 ss.

[5] Cass. 5 january 2012, n. 16, Giust. Civ. Mass., 2012, 1, p. 6; Cass. 8 february 2006, n. 2758, ivi, 2006, 2.

[6] On the subject, however, the Constitutional Court had the opportunity to rule – albeit with reference to the issue of the determination of the cc.dd. unified contributions in agriculture – in 1992, declaring the manifest groundlessness of the question of constitutional legitimacy of art. 28 paragraph 1 and 2 of the d.P.R. April 27th 1968 n. 488 (Increase and new system of calculation of the pensions to load of the obligatory general insurance) with reference to the art. 3, 24 and 39 cost. “… because the criterion of the average taxable remuneration adopted for the determination of the unified agricultural contributions allows, unless proven otherwise, to take sufficient account of the various provincial entities and to effect a balancing of interests as a result of the use of collective agreements as parameters valid for the generality of employers “: cf. C. cost. 20 July 1992, n. 342, Riv. giur. lav., 1992, II, p. 731 with note of GATTA.

[7] G. Santoro-Passarelli, Diritto dei lavori e dell’occupazione, Torino, 2017, p. 99.

[8] Among the many referral rules we see provisions that entrust an integration, an authorization, a derogation to national collective agreements, depending on the scenario and the interests at stake (i.e., cases provided by article 2, Legislative Decree 15 June 2015, No. 81 and article 4, Law 23 July 1991, No. 223).

[9] U. Gargiulo, Rappresentanza e contrattazione in azienda, cited, p. 103.

[10] In this case, with reference to the possibility of identifying a minimum hourly remuneration, the standard also refers – in addition to the trade unions of workers and employers – to the “… consultation of the comparatively most representative social partners at national level”.

[11] In order to facilitate the reconciliation between the exercise of parental responsibilities and assistance to non self-sufficient persons and work, also through the use of teleworking.

[12]http://www.senato.it/japp/bgt/showdoc/17/DOSSIER/0/913708/index.html;http://documenti.camera.it/apps/nuovosito/attigoverno/Schedalavori/getTesto.ashx?file=0158_F001.pdf&leg=XVII#pagemode=none;http://documenti.camera.it/apps/commonServices/getDocumento.ashx?sezione=lavori&tipoDoc=attoGoverno&atto=158&tipoatto=Atto&leg=17&tab=3#inizio

[13] For another point of view see U. Gargiulo, Rappresentanza, cited, p. 107, who hypothesizes the existence – at corporate level – of two types of trade union representatives.

[14] Cass. 1 march 1986, n. 1320, Dir. lav., 1986, II, p. 410 and Cass. 9 gennaio 2008, n. 212, cited above.

[15] G. Santoro-Passarelli, Il contratto aziendale in deroga, W.P. C.S.D.L.E. “Massimo D’Antona”.IT, 254, 2015, p. 6. See also A. Di stasi, Il Testo Unico sulla rappresentanza del 10 gennaio 2014 stipulato da Confindustria e Cgil, Cisl e Uil. Una riflessione critica, Riv. giur. lav., 2014, I, p. 631.

[16] G. Zilio Grandi, Ancora sui rapporti tra contratto collettivo nazionale di lavoro e contratto aziendale: autarchia, legge o solo passato che non passa?, Studi in onore di Raffaele De Luca Tamajo, Milano, 1, https://iris.unive.it/retrieve/handle/10278/3660855/45768/Scritti%20De%20Luca%20Tamajo%20rev.pdf.

[17] C. cost 23 july 2013, n. 231, Foro it., 2013, I, 3368, with notes be De Luca and Santoro-Passarelli.

[18] That is an interlocution that does not exclude the “inconvenient” counterpart, under penalty of the application of art. 28 of the Workers’ Statute.

[19] De Luca Tamajo, L. Barassi e la norma inderogabile, M. Napoli (a cura di), La nascita del diritto del lavoro. Il «contratto di lavoro» di Lodovico Barassi cent’anni dopo, Milano, 2003, p. 547 and, Id., La norma inderogabile nel diritto del lavoro, Napoli, 1976; see also C. Cester, La norma inderogabile: fondamento e problema del diritto del lavoro, p. 39, Dir. lav. rel. ind., 2008, p. 344 ss.; G. Santoro-Passarelli, La funzione del diritto del lavoro, Riv. it. dir. lav., 2018, I, p. 339.

[20]P. Ichino, Inderogabilità della norma nel mercato del lavoro bipolare, Riv. it. dir. lav., 2008, I, p. 407.

[21] V. Ferrari, Consumatore, utente e paternalismo del Legislatore, Corti calabresi, 2006, 2, p. 443.

[22] P. Costa, Cittadinanza sociale e diritto del lavoro nell’Italia repubblicana, G. Balandi ,G. Cazzetta (edited by), Diritti e lavoro nell’Italia repubblicana, Varese, 2008, p. 21 and p. 67.

[23] Reasons that, even if subsisted, would certainly be blamed by who criticize the imposition of rules of conduct whose effects are distributed indiscriminately among the players animating the market. On the subject the literature is wide, we refer – without pretension of exhaustiveness – a: R. Pardolesi, Analisi economica del diritto, in Digesto, sez. civ., Torino, 1987, I, p. 309 e ss.; G. Calabresi, Il futuro dell’analisi economica del diritto, Soc. dir., 1990, p. 48; R. A. Posner, Economic Analysis of Law, Boston/Toronto, 1992.

[24] See Barassi, as cited by R. De Luca Tamajo, L. Barassi e la norma inderogabile, cited, p. 548 and 549.

[25] M. Foucault, Nascita della biopolitica. Corso al Collège de France (1978-1979), tr. it. Feltrinelli, Milano, 2005; R. Plant, The Neo-Liberal State, Oxford, 2009; A. Garapon, Lo Stato minimo, Milano, 2012. See also P.B. Helzel, Il recupero del binomio sovranità-autorità alla luce della tradizione giuridica, P.B. Helzel, A.J. Katolo (edited by), Autorità e crisi di poteri, Padova, 2012, p. 15.

[26] R. De Luca Tamajo, L. Barassi e la norma inderogabile, cited, p. 548.

[27] U. Gargiulo, Rappresentanza e contrattazione, cited, p. 101, who talks about “pickguard-rule”.

[28] G. Santoro passarelli, Autonomia privata individuale e collettiva e norma inderogabile, Riv. it. dir. lav., 2015, I, p. 66 ss.

[29] Cfr. L. Galantino, Il diritto del lavoro fra valori della tradizione ed esigenze di modernità, Dir. mer. lav., 2008, 1-2, p. 5 s.

[30] C. Cester, La norma inderogabile. cited, p. 39.

[31] Cfr. A. Pizzorusso, Lezioni di diritto costituzionale, Roma, 1984, p. 669; see also G. Pera, Fondamento ed efficacia del contratto collettivo di diritto comune, Scritti giuridici in memoria di Pietro Calamandrei, Padova, 1958, V, p. 133; A. Cessari, L’interpretazione dei contratti collettivi, Milano, 1963; M. Persiani, Saggio sulla autonomia privata collettiva, Milano, 1972; L. Mengoni, Legge e autonomia collettiva, Mass. giur. lav., 1980, 5, p. 692; G. Ghezzi e U. Romagnoli, Il diritto sindacale, Bologna, 1987.

[32] G. Santoro-Passarelli, Diritto dei lavori, cited.

[33] R. Del Punta, Ragioni economiche, tutela dei lavori e libertà del soggetto, Riv. it. dir. lav., 2002, I, p. 401.

[34] Id., ibidem.

[35] G. Santoro-Passarelli, La funzione del diritto del lavoro, in Riv. it. dir. lav., 2018, I, p. 353.

[36] L. Barassi, Il contratto di lavoro nel diritto positivo italiano, Milano, 1901, p. 427.

[37] R. A. Epstein, Regole semplici per un mondo complesso, Macerata, 2012, p. 219.

[38] G. Calabresi, Il mestiere di giudice. Pensieri di un accademico americano, Bologna, 2013, p. 75.

[39] Is well-known the debate which took place years ago between Croce and Einaudi:see L. Einaudi, Dei concetti di liberismo economico e di borghesia e sulle origini materialistiche della guerra, La Riforma sociale, 1928, p. 501 and B. Croce, Liberismo e liberalismo, 1927, both cited by M. Montanari, Croce ed Einaudi: un confronto su liberismo e liberalismo, Enc. Treccani online, www. treccani.it.    

[40] Cfr. M. Faioli, Sindacato statunitense, Dig. Disc. Priv., sez. comm., Aggiornamento, Torino, 2015,p. 498.

[41] F.H. Harbison, J.R. Coleman, Il contratto collettivo nella società moderna, Milano, 1955, p. 12.

[42] F.H. Harbison, J.R. Coleman, cited, p. 13.

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