Constitutional Court allows referenda on individual dismissals and trade union dues

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On 3 February 2000, Italy's Constitutional Court ruled on the admissibility of 20 proposals for referenda presented by the Radicals political party. It allowed only two of the proposed referenda on trade union and labour issues - those on on individual dismissals and on the collection of trade union fees. While the promoters are highly critical of the Constitutional Court decisions, trade unions declared themselves satisfied with the rulings and announced a campaign to support a vote against the two permitted referenda.

On 3 February 2000, the Constitutional Court (Corte Costituzionale) issued its resolutions on the admissibility of 20 proposals for referenda presented by the Radicals political party in September 1999 (IT9909253F), and on the referendum to abolish the current immigration law promoted by the Lega Nord political party (IT9902196N). Overall, only seven of the referenda proposed by the Radicals have been admitted, while that advocated by the Lega Nord has been rejected. Of the 11 referenda proposed by the Radicals which concerned trade union and labour issues, only two have been considered admissible by the Constitutional Court. All seven of the permitted questions will be put to the electorate between mid-April and mid-June 2000.

The rulings were delivered by the Constitutional Court on 7 February 2000. The reasons which led to the final decisions are varied:

  • first, there is a group of referenda which were declared inadmissible because the repeal of the relevant norms would obliterate protections which are expressly guaranteed by the Italian Constitution. This is the case of proposals which sought to abolish the monopoly of Inail in industrial accident insurance, to liberalise homeworking and to discontinue the public funding of trade union benefit advice centres. The Court declared that intervention in such domains would be possible through systematic reforms, which could define in a different way the specific forms of worker protection. However, the referenda cannot lead to such an effect, since they would merely repeal the guarantees granted by the law which was challenged;
  • a second group of referenda was rejected because they would breach European regulations. The proposed liberalisation of part-time and fixed-term employment were considered inconsistent with the application of the EU Directives which regulate these kinds of employment relationship and were adopted in accordance with the results of European-level social dialogue;
  • other questions were excluded since they were unclear and unsuitable to achieve their declared objectives (those which sought to make private health insurance an alternative to the national health service and to abolish "seniority pensions") or because they covered composite issues on which voter might have contradictory positions (that on the liberalisation of private job placement agencies); and
  • finally, the referendum on the abolition of the compulsory payment of income tax by employers was refused on the grounds that the method of tax collection is part of the fiscal system and therefore cannot be amended by referenda, as stated by the Constitution.

As far as the two admissible labour-related referenda are concerned, the Constitutional Court considered that the repeal of the possibility of ordering the reinstatement of workers in the event of unlawful individual dismissal would only eliminate one specific worker guarantee. All the other norms which protect the worker in such a situation would remain unchallenged - particularly the Council of Europe's revised European Social Charter of May 1996 which was transposed in Italy in February 1999. Furthermore, the abolition of the direct payment through the Inps social security institute and Inail of trade union membership dues would not affect union rights, but only exclude a particular collection method.

The promoters of the referenda, through the Radicals party leader Marco Pannella, harshly criticised the Constitutional Court decisions, For their part, trade unions expressed their satisfaction with a position which they regard as substantially acknowledging and confirming the workers' rights and values embedded in the Italian regulatory system. At the same time, the unions announced a campaign to support the vote against the two permitted referenda. The Confindustria employers' confederation, which had previously declared its support for the five referenda on labour market liberalisation, triggering trade union criticism (IT0001139N), remained cautious. While accepting the decisions of the Constitutional Court, Confindustria insisted on the need for liberalising and flexibilising the labour market by legislative reforms, without which it believes that the competitiveness of the Italian economy will remain lower than that of other European countries. Rinaldo Fadda, deputy general director of Confindustria, criticised some of the Constitutional Court decisions since, in his opinion, they are not clearly justified. In particular, he considers that the rulings on part-time and fixed-term employment interpreted the relationship between labour law, on one side, and European and constitutional provisions, on the other, in an overly restrictive way.

The debate between the social partners is focusing on the referendum on workers' reinstatement in case of individual dismissal without just cause or justifiable reason. Confindustria maintains that this obligation puts excessive constraints on business activity, while trade unions confirm their clear opposition to the referendum, though with some limited room for a higher recourse to arbitration. At the same time, a demand for legislative intervention on this issue is growing, in order to avoid putting the question to the electorate. Alleanza Nazionale, a party in the centre-right opposition, presented a draft bill which would abolish reinstatement, replacing it by compensation, while Tiziano Treu, a labour law academic who was formerly Minister of Labour, announced a proposal that would leave to arbitration the choice between reinstatement and compensation. The current Minister of Labour, Cesare Salvi, was to consult with the social partners in February, in order to assess the possibility of intervening in this issue by way of law.

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