New rules introduced on equality advisors
Legislative decree no. 196 of 23 May 2000 has introduced significant changes to Italy's system of "equality advisors", who are responsible for promoting female employment and enforcing sex equality law at the workplace. The decree boosts the advisors' functions, allocating an annual fund of ITL 20 billion to their activities, and creating a national network coordinated by a national advisor. The decree has also reformed the procedures for granting public funding for positive action plans in the workplace and has extended funding to new beneficiaries, like trade unions and other associations. During 2001, the new equality advisors are being jointly appointed by the minister of labour and the minister of equal opportunities.
In Italy, "equality advisors" (consigliere di parità), who operate at national, regional and provincial levels - have for some years provided important support for legislation on equal opportunities for women and men at the workplace. Law no. 125/91, which was passed on 10 April 1991, gave equality advisors two main functions: promoting female employment; and enforcing sex equality law at the workplace. However, the law provided inadequate economic resources for such activities, thus effectively nullifying those provisions which empowered equality advisors to act in cases of collective discrimination and on behalf of individual plaintiffs, and to intervene in any gender equality case.
A parliamentary inquiry conducted by the Italian Senate in 1995 found that, although Italian legislation was among the most advanced in Europe in its use of innovative legal techniques to combat gender discrimination and in its provision of measures promoting positive action, it was also entirely unsatisfactory in terms of its concrete effects, due to the inefficiency of the law's implementation and to the lack of resources allocated to equal opportunities bodies. Partly as a result of this inquiry, article 47 of law no. 144 of 17 May 1999 mandated the government to issue one or more legislative decrees intended to reform law no. 125/91, by redefining and extending the functions and resources of advisors, and by improving the efficiency of positive action.
The government accomplished this mandate through legislative decree no. 196 of 23 May 2000, while tying reform of law no. 125/91 to the recent decentralisation of labour policies to the regional and provincial governments (IT0005355F).
A distinctive feature of the May 2000 decree is that it uses both the feminine term "consigliera" and the masculine term "consigliere" for "advisor". It does so not just to acknowledge that in the past this demanding role has mainly been performed by women, but also to diversify the legal language so that it takes account of the gender of those subject to regulation - which is especially apposite in a legal text on equal opportunities between men and women. The intent to promote equal opportunities between men and women in positions of responsibility is quite evident in the provision which states that if a male and female in possession of the same qualifications apply for appointment as an equality advisor, precedence should be given to the woman (Article 1.4). The decree refers on this point to the European Court of Justice case law on preferential treatment for women (the Kalanke and Marshall judgments) and seeks to ensure that enhancement of the role of the equality advisor does not paradoxically end up with its "masculinisation".
The first articles of the decree redefine the procedures for the appointment of equality advisors and their substitutes (defining the twofold competence in this regard of the local authorities and the minister of labour and minister of equal opportunities). They state the qualifications and experience required for the post and define its duration (four years), while also specifying the equality advisor's promotional and monitoring duties. Article 3 gives clearer definition to the role of equality advisor in relation to active labour policies and protection against discrimination. It sets out a series of activities, ranging from: diagnosis of gender discrimination in the labour market and detection of breaches of equal opportunities legislation; to identification of individual or collective remedies to discrimination and of measures to promote equal opportunities. To this end, the decree provides that equality advisors should promote positive action projects (also using EU, national and local resources allocated for this purpose) and assess the results of projects financed with public funding under law no. 125/91. They should also ensure that local development policies comply with EU and national guidelines on equal opportunities, and support active labour policies in favour of women. Advisors are expected to collaborate with public and private organisations operating in the labour market, as well as with local labour departments and equal opportunities bodies, and to promote the knowledge and exchange of best practices.
The above is not a definitive list of activities, given that the decree further stipulates that equality advisors should take "every viable initiative to implement the principle of non-discrimination and equal treatment". The decree also states that equality advisors should sit on the national, regional and provincial tripartite committees for the concertation of labour policies, as well as on the supervisory committees envisaged by the European Union regulations on structural funds. They should collaborate with the regional bodies providing technical assistance for labour policies and the monitoring of the local labour market. Equally important is collaboration with the regional and provincial labour offices (the local branches of the ministry of labour), with which equal opportunities advisors should jointly devise efficacious procedures for the investigation of complaints of violation of gender equality law.
As regards protection against discrimination, the decree rationalises the double-track mechanism of enforcement, based both on individual and collective court cases. The legislator favours conciliation, but also strengthens the provisions which empower judges to order a positive action plan on the part of the employer, where the existence of collective discrimination is ascertained in a case brought by the equality advisor. In this regard, the decree clarifies the judges' powers in designing the kind of positive action plan may be necessary to provide remedies to systemic discrimination and introduces the possibility to issue economic sanctions indirectly to support enforcement. The decree also provides a special procedure which allows equality advisors to seek immediate relief from the court, replicating the provisions on individual discrimination claims set out by article 15 of law no. 903/77. Of the decree's substantive provisions, of particular importance is the new wording of the provision which prohibits all types of direct and indirect discrimination (Article 8), which now clarifies that the prohibition applies regardless of the quality or legal nature of the offender (individual employers, public and private companies, institutions, recruitment agencies and so on).
No less important are the decree's instrumental provisions, which should eliminate the structural weakness that previously impeded the action of the equality advisors. The decree establishes that they are entitled to an annual amount of leave paid out of public funds, and of unpaid leave for which they receive an allowance. The premises, equipment and personnel used by equality advisors will be provided by the public institutions at which their offices are located, namely the ministry of labour for the national advisor, and regional and provincial councils for the regional and provincial advisors. The advisors' activities will be financed out of a special annual fund of ITL 20 billion, which can also be used to cover the expenses of court cases. Moreover, in order to increase the efficacy of action by equality advisors, and to encourage the exchange of information and experience, a national network coordinated by the national advisor will be created. Finally, the decree has also reformed the procedures for granting public funding for positive action plans in the workplace and has extended funding to new beneficiaries, like trade unions and other associations.
The new equality advisors are currently being jointly appointed by the minister of labour and the minister of equal opportunities.
On reading the decree, one gains the impression that, although appointed by political actors, the equality advisors have in fact most of the features displayed by independent agencies vested with the function of guaranteeing and enforcing fundamental rights and freedoms, or ensuring the correct functioning of the market. At the same time, they are viewed by the legislator as an integral part of the dense network of institutional and social relations governing the labour market, in which the "discourse" of equal opportunities is intended to become an integral part of the "language" spoken by the actors in labour policies.
The equality advisors are required to undertake complex interaction - which may involve collaboration, negotiation or outright conflict - with each of these actors in order to protect collective and individual interests which find insufficient expression in decision-making processes because of deep-rooted discrimination and the under-representation of women. This is obviously a difficult and delicate function which requires experience and specific expertise as well as a large amount of commitment to their work by the advisors. It is of crucial importance, therefore, that the political actors who are now appointing the new equality advisors should be open minded enough to select those persons best suited to the position. (Marzia Barbera, University of Brescia)