Pact signed on concertation and the right to strike in transport

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In December 1998, a tripartite agreement to set up a system of "concertation" in Italy's transport sector and to define new rules on the right to strike was reached at the Ministry of Transport. The agreement was signed on the trade union side by the main Cgil, Cisl and Uil confederations, together with their respective sectoral federations, and by other confederations such as Cisal and Ugl. On the employers' side, the deal was signed by organisations including Confindustria, Federtrasporto, Agens and Lega delle Cooperative. The effectiveness of the pact has been called into question by its rejection by a number of independent unions, mostly in the railways sector, and by foreseeable difficulties in enforcing the rules on the right to strike.

On 23 December 1998, a Pact on concertation policies and on new rules on industrial relations for the transformation and European integration of the transport system was signed at the Ministry of Transport. The agreement, which defines a system of "concertation" (consultation and dialogue) and introduces new rules on the right to strike, was signed by: the three main trade union confederations, Cgil, Cisl and Uil, together with their relevant sectoral federations; other union confederations such as Cisal and Ugl; and the employers' organisations Confindustria, Federtrasporto (the sectoral federation of Confindustria), Agens (the Confindustria-affiliated association which represents the state railways' interests) and Lega delle Cooperative (the association of cooperatives belonging to the socialist and communist tradition), among others. The Pact was not signed, however, by a number of important occupational unions with a particular antagonistic attitude, like Comu (representing state railway engine drivers), Ucs (state railway station masters) and Sulta (cabin crew), nor by several employers' organisations - Confapi (the confederation of small and medium-sized enterprises), Confetra (representing the goods transport sector) and Confcommercio (one of the confederations for trade, services and tourism).

The pact may also be endorsed by the transport users' associations which subscribe to its objectives.

The agreement

The general objectives set by the pact are the definition of "forums for concertation on strategic choices, instruments for the consensus-based management of the social effects of change, new and more appropriate rules on industrial relations and collective bargaining structures, and the prevention and moderation of industrial action in order to ensure the provision of public services and to protect users". The pact divides into three main parts:

  1. a protocol on the means and general ends of concertation policies;
  2. a protocol on the rules regulating industrial relations and on the prevention of conflict; and
  3. an agreement on the rules regulating exercise of the right to strike and the protection of users.

The protocol on concertation

As regards concertation policies, the protocol sets up a National Transport and Logistics Council (Consiglio nazionale dei trasporti e della logistica) which should provide a stable forum for discussion between the government and the social partners aimed at the joint definition of sectoral policies. The protocol, moreover, defines the priority goals of concertation as:

  • devising specific employment and income-support policy instruments to flank reorganisation of the sector;
  • guaranteeing - within the framework of the liberalisation and privatisation of transport services envisaged by EU regulations - efficiency and competitiveness together with the effectiveness of the various transport services, safeguarding acquired professional skills and maintaining employment levels;
  • simplifying and rationalising the collective bargaining structure, in the light of the processes now under way for opening up the market and eliminating monopolies, with a probable decrease in the number of bargaining units;
  • full implementation of the July 1993 national tripartite agreement, confirmed by the tripartite agreement of 22 December 1998 (IT9901335F), with particular regard to the section covering the two-tier bargaining structure (national and company- or territorial-level); and
  • setting up a system of participatory industrial relations in order to involve workers' representatives in firms' strategies. The Ministry undertakes to submit a bill encouraging the growth of employee shareholding in transport firms to the National Transport and Logistics Council.

The protocol on industrial relations and the prevention of conflict

In order to encourage the use of collective bargaining for the consensus-based regulation of transport problems - reducing the level of conflict and giving greater protection to users' rights - the protocol introduces a set of reciprocal commitments which the signatories undertake to observe for the duration of the pact.

Firstly, the companies and employers' associations concerned pledge to recognise trade union representation on the basis of the following principles:

  1. the precondition for the establishment and maintenance of relations with trade unions at any level is that they should sign the pact and comply with agreements on the provision of indispensable services in the event of strike action;
  2. at national level, only unions with a significant level of representativeness within the area of application of the sectoral agreement are entitled to take part in negotiations and to sign collective agreements. Unless the sectoral agreement states otherwise, "significant" representativeness means an average of 5% support in terms of membership and votes received in elections to Rsu representative bodies. This is the same representativeness criterion as was recently introduced in the public sector (IT9806229F);
  3. sectoral agreements must provide specific forms of industrial relations for union organisations which have signed the pact and have complied with the agreements on the minimum provision of services, but which do not have a significant level of representativeness; and
  4. the pact confirms the prerogatives of company-level representative bodies (Rsa or Rsu) stipulated by law 300/70 (the Workers' Statute) .

Secondly, the protocol provides that collective agreements must lay down forms of restraint on industrial conflict while the agreements are being renewed, as established by the July 1993 national agreement confirmed on 22 December 1998.

Thirdly, in the case of disputes concerning the application or interpretation of agreements, national collective agreements must establish:

  1. bargained statutory conciliation procedures, and should these fail, optional voluntary arbitration. During the entire period set aside for these procedures, the parties must pledge not to take unilateral initiatives and to guarantee the continuing provision of services;
  2. the means by which the demands provoking the dispute are made explicit and public (so-called "platforms"); and
  3. the experimental introduction of alternative forms of collective industrial action which, although burdensome for workers and companies, do not affect the availability of transport services. This involves definition of the concrete features of the so-called "virtual strike" whereby the striking workers do not bring the service to a halt but pay a proportion of their wages into a special fund, to which the company on its part contributes a corresponding sum.

A joint technical committee must then decide within three months whether it would be feasible to hold a workers' referendum for consultation purposes in the event of strike action.

Finally, sectoral collective agreements should impose specific sanctions for breaches of the above rules set out by the pact concerning conflict restraint procedures during the renewal of agreements, and concerning the conciliation and optional arbitration of disputes over the application and interpretation of agreements.

The agreement on the right to strike

The most significant rules introduced by the agreement on the right to strike and the safeguarding of users are the following:

  1. the fixing of a minimum period of 10 days between one work stoppage and the next affecting the same territorial area or transport service, regardless of which union calls the strike. Since the law has already established that 10 days must elapse between the announcement of a strike and its start-date, this means that the minimum interval between two strikes affecting the same territorial area or service would be 20 days. This rule would not apply if the industrial action is announced by a trade union which has more that 50% representativeness;
  2. restricting opportunities to exploit the so-called "announcement effect" (IT9802220F). Announcements that strikes have been called off must be made at least three days before their scheduled start-dates, so that users can be fully informed and avoid the difficulties caused by strikes announced and then cancelled at the last minute;
  3. twice a year, in May and November, the government will hold talks to decide whether further obligatory strike-free periods are necessary besides those already fixed in each sector to coincide with peak travel periods; and
  4. an obligation on firms to apply the sanctions established by law 146/90 for failure to provide minimum services during strikes. These sanctions are to be applied within 30 days of the ruling by the Guarantee Commission (Commissione di garanzia) providing for implementation of the law on strikes in essential public services (IT9802220F).

By December 1999 the parties must meet to assess the application and efficacy of the pact and to propose any changes that they may deem necessary.

Assessments of the agreement

The trade unions and employers' associations which have signed the pact have obviously declared themselves satisfied with the deal because it introduces clearer and more rigid rules on the right to strike in the transport sector, and thus gives greater protection to users. According to Sergio Cofferati, secretary general of Cgil, it was important to confirm the right to strike while at the same time acknowledging the distinctive nature of the services sector, and of transport services in particular, compared with manufacturing industry. In an interview published in the Il Sole 24 Ore newspaper (24 December 1998) the Minister of Transport, Tiziano Treu, expressed his satisfaction with a pact which may help to reduce conflict in the sector, through the use of conciliation procedures and the obligation to make the reasons for disputes explicit and public, amongst other means. At the same time, Mr Treu declared that the crucial issue of the effectiveness of sanctions, which to date have been only rarely applied, can be resolved only by amending law 146/90.

By contrast, the pact has been criticised by the independent trade unions, especially as regards the clause on the minimum interval between one work stoppage and the next, which they regard as imposing excessively stringent restrictions on the right to strike. However, in early January 1999 there was a distinct possibility that Comu would sign the Pact, thanks to a possible change in the rule concerning the statutory interval between two successive strikes. Besides Comu, Ucs has also announced its willingness to discuss the pact with the Minister, and a meeting was scheduled for 22 January. However, the firm opposition of Confindustria to any change in the pact has prevented any agreement so far.

Finally, the assessments of industrial relations commentators and experts have concentrated on the efficacy of the rules in the pact designed to avert conflict. For example, Marco Biagi, an expert on labour law and adviser to the Ministry of Civil Service on the revision of law 146/90, has argued that it is not possible to introduce into the Italian system restrictions on the right to strike based on referendum results or on the representativeness of the union announcing it. In Italy, the right to strike is an individual right. Consequently, holding a referendum would hardly be workable, and the non-application of the rule on the statutory interval between one strike and the next if the unions calling the strike have more than 50% representativeness would be unconstitutional. More effective, according to some commentators, would be reinforcement of conciliation and arbitration procedures, while others maintain that the Guarantee Commission should be given greater powers.

Commentary

The agreement reached on 23 December 1998 is a positive development in many respects. Firstly because it seeks to introduce the concertation method for the management of a crucial stage in the overhauling of the transport sector as regards both its ownership structure and the introduction of market regulation and increased competition. Secondly, because it pursues the goal of redefining the sector's bargaining and industrial relations system, so that they more closely match the new competitive situation and are based on criteria of representativeness and involvement of all actors in the joint settlement of disputes (through collective bargaining, conciliation and arbitration). Thirdly, because it introduces a set of rules designed to reduce the particularly high and disruptive level of conflict, which is distinctive of the transport sector (IT9707209F).

However, these indubitably positive goals are counterpoised by a number of difficulties likely to restrict the effectiveness of the pact.

  1. Its implementation will be hampered by the refusal to endorse it by the independent unions that are mostly responsible for the high level of conflict in the sector, namely on the State Railways (Ferrovie dello Stato). However, if as seems likely, two important occupational unions like Comu and Ucs may sign the pact, then the situation will change entirely, and the rules will be reinforced. Mr Treu's statement in the above-mentioned interview that "the rules must apply to everybody and that it will be difficult to evade the pact's provisions" will thus be borne out.
  2. A major problem is the arguably excessive restriction imposed on the right to strike. In this regard, however, the version of the clause on the minimum interval between one strike and the next, which apparently might meet with the approval of the independent unions which have not yet signed the pact, could probably offer a more workable and acceptable arrangement. Moreover, the exemption to this rule based on representativeness seems inapplicable under Italian law on constitutional grounds.
  3. The provision which restricts participation in bargaining and the signing of agreements to unions with more than a certain level of representativeness clashes with the objective fact of the large number of occupational unions in the transport sector. These are not only independent or autonomous unions such as those frequently to be found in the public sector. If they cannot be considered actual craft unions, they certainly have distinct occupational bases. This particular feature combines in Italy with a difficulty in clearly identifying bargaining units. If the criterion for full participation in industrial relations is to be representativeness within the area of application of the sectoral agreement, then changes will probably have to be made to prevent further occasions of conflict.
  4. Other, interconnected aspects concern the extension of conciliation and arbitration procedures and the efficacy of the sanctions for non-compliance. These are correlated issues because they can be thoroughly addressed only by revising law 146/90, and in particular the role and powers of the Guarantee Commission. Specifying and strengthening the Guarantee Commission's role in dispute settlement will probably give greater cogency to the rules on strike action in essential public services.

These difficulties and uncertainties, however, could be greatly attenuated if the pact leads to establishment of an efficient system of concertation. If the political commitment of the government and the ministry is able to steer the social partners decisively in this direction, then conflict will be resorted to only in exceptional circumstances, and its regulation will become an extremely valuable "by-product" of social dialogue. Perhaps the recent willingness to negotiate expressed by Comu and Ucs is a signal that even the traditionally antagonistic independent unions have recognised this important opportunity as well (Roberto Pedersini, Fondazione Regionale Pietro Seveso).

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