Government transposes EU working time Directive
In April 2003, nearly 10 years after its adoption, the EU working time Directive was finally transposed fully into Italian law when the cabinet definitively approved legislative decree 66/2003. The new regulations came into force on 29 April. The decree, as well as implementing the Directive, sets out in a single text the regulations on working time which have accumulated over the years as a result of successive legislation. It regulates normal weekly working time, overtime, daily rest, breaks, weekly rest periods, annual leave, night work and derogations. The trade unions have criticised the method and contents of the decree.
At present in Italy, the maximum level of normal working time is set at 40 hour per week, under the terms of law 196/97 (IT9707308F). The question of the daily amount of working time has been more complex, because law 196/97, following the approach taken by EU Directive (93/104/EC) on certain aspects of the organisation of working time, does not explicitly impose a maximum upper limit. This has provoked much legal debate, which has tended to consider as still applicable a limit for normal working time of eight hours per day established by royal decree as far back as 1923. These two limits (weekly and daily) have been treated as concurrent: it has not been necessary to comply with both of them, but sufficient for only one of them to be respected (TN0303103U). As regards overtime, the law has hitherto permitted no more than two hours per day and 12 hours per week.
Over the past 10 years, since the EU Directive on the issue was adopted in 1993, working time has been a matter of heated debate. The Directive made it necessary to adjust national regulations to the new EU provisions. During the last parliament, therefore, a series of laws were passed, although they transposed the Directive only in part. These legislative measures comprised the abovementioned law 196/97, law 409/1998 (IT9812192N) - which introduced a number of changes as regards overtime - and legislative decree 61/2000 (IT0002261F), which has been amended by the centre-right government's law 848/2003 (IT0303103N) on reform of the labour market recently approved by parliament.
In 1997 an interconfederal agreement, or 'joint opinion' (IT9711140N) on the transposition into Italian law of the working time Directive was signed by the General Confederation of Italian Industry (Confederazione generale dell’industria italiana, Confindustria), the Italian Confederation of Workers’ Unions (Confederazione italiana sindacati lavoratori, Cisl), the Union of Italian Workers (Unione italiana del lavoro, Uil) and the General Confederation of Italian Workers (Confederazione generale italiana del lavoro, Cgil).
Despite this understanding between the social partners on implementation of the Directive, in 1998 the then centre-left government presented a bill which sought to transpose the provisions of the Directive but also to reduce the legal working week to 35 hours (IT9710133N). This provoked a fierce clash among the political parties and social partners on whether or not employment could be increased by reducing working time. The issue, which threatened to provoke a government crisis, concluded with non-approval of the bill by parliament and the inevitable postponement of transposition of the Directive, even though the three-year deadline for its enactment (November 1996) had elapsed. As a consequence, Italy, as one of the Member States which had not implemented the Directive, was fined following a European Court of Justice ruling issued on 9 March 2000.
New decree on working time
Finally, on 4 April 2003, the cabinet definitively approved legislative decree 66/2003, which completes transposition of EU Directive 93/104/EC as modified by Directive 2000/34/EC (which extended the original working time Directive to previously excluded sectors and activities). The new regulations came into force on 29 April 2003. The government regards the measure as enabling Italy to adjust to the flexibility standards required by the EU, while keeping Sunday as the weekly day of rest.
The legislative decree, as well as complying with the Directive, sets out in a single text the regulations on working time which have accumulated over the years as a result of successive legislation. In particular, the decree regulates normal weekly working time, overtime, daily rest, breaks, weekly rest periods, annual leave, night work and derogations.
The main innovative feature of the decree is that it applies to all categories of public sector (excluding school personnel) and private sector employees, with the exceptions: of 'seafarers, flight crews and mobile workers' (ie personnel travelling for enterprises which operate road, air or inland water transport services); the armed forces; the police; civil defence workers; firefighters; and the personnel of libraries, museums and archaeological sites. These categories will be covered by a special ministerial decree issued within 120 days of entry into force of the legislative decree 66/2003.
The main points of legislative decree 66/2003, the text of which was drawn up by the Ministry of Public Administration, are as follows.
- Normal weekly working time. The decree makes no changes in this area with regard to law 196/97. The maximum is set at 40 hours per week, with the possibility that social partners may set a lower limit through national-level bargaining and also agree on multi-period (eg multi-week) working time flexibility arrangements, while maintaining the upper limit on average over a period not in excess of one year.
- Overtime. The decree makes a number of important changes to the previous rules. The maximum level of working time cannot exceed 48 hours per week. Over a year, however, workers may work up to 250 hours of overtime. If the weekly limit of 48 hours is exceeded, companies with more than 10 employees must inform the provincial labour office. The obligation does not apply to companies with fewer employees.
- Daily rest, breaks, weekly rest period and annual leave. A worker is entitled to 11 hours of consecutive rest in every 24-hour period. Exceptions are made for split work schedules - the shifts typically worked, for example, by cleaners and supermarket personnel. If daily working time exceeds six hours, a rest break must be provided in a form to be determined by collective bargaining. In every seven-day period, a worker must have a minimum uninterrupted rest period of 24 hours. Exceptions are made for shiftwork, split work schedules, and railway workers. Finally, all workers are entitled to annual paid leave of at least four weeks.
- Night work. The definition of a night worker is a worker who works at least three hours in the period between midnight and 05.00. A night worker may not work for more than eight hours in a 24-hour period.
- Derogations. An innovation with respect to the previous rules is the extension of derogations - ie groups to which some of the decree's working time constraints do not apply. Besides home workers and domestic staff, managerial personnel, travelling salespeople, security staff and certain categories of agricultural workers, the decree now provides new derogations for occupational categories such as public service personnel in urban transport and railways, workers in enterprises furnishing services of public utility, tourist service workers, 'split schedule' and shiftworkers, teleworkers, and 'persons with autonomous decision-making powers'. This last point is of particular importance because it specifically concerns people who, although they do not occupy managerial positions, can decide the duration of their working time even though they are in subordinate employment. Finally, other categories to which exemptions apply are journalists, printworkers, radio/television and telecommunications workers.
Employers have generally reacted positively to the decree, and especially the General Italian Confederation of Commerce and Tourism (Confederazione generale italiana del commercio e del turismo, Confcommercio), which has declared that 'the new decree is tangible recognition of the specific nature of the tourism sector'. For Confindustria, by contrast, the government’s decree makes excessive concessions to 'social partner autonomy', in that it continues to give priority to collective bargaining over individual bargaining.
The opinion of the trade union confederations is diametrically opposed. They claim that an error of method has been committed, in that the government has acted unilaterally, thus avoiding dialogue with the social partners on such a delicate matter as working time. Cgil, Cisl and Uil are also critical of the low involvement of the public sector, with the Agency for the representation of public administrations in collective bargaining (Agenzia per la rappresentanza negoziale della pubblica amministrazione, Aran) never having taken part in any talks. For this reason, the unions have called for 'the removal of all the provisions concerning public sector employment and the immediate start of negotiations', without which 'a complex dispute will ensue'.
Cisl in particular has criticised the fact that, at the last moment, the decree was amended to include 'rules that concern so crucial a sector as transport'. Cgil, for its part, has been critical of the exemptions made for workers on split daily schedules, because these are 'cases already regulated by bargaining', with the risk that negotiation on shifts and flexibility may break down.
Legislative decree 66/2003 has brought a particularly irksome affair to a close, thus enabling Italy to avoid an EU fine of EUR 238,000 a day. For 10 years, Italian legislators have been unable fully to transpose Directive 93/104/EC, with the result that national rules on working time have had only provisional effect until incorporation of the Directive into national law. This transitional phase has been brought to an end by the government’s decree, which has finally given certainty to the rules. Moreover, the decree has imposed order on an extremely fragmented body of legislation which in the past has caused considerable problems of interpretation, especially as regards the maximum permissible amount of daily working time.
To be criticised, however, is the excessive amount of derogations, which far exceed in number those envisaged by the EU working time Directives and do nothing to simplify what is already a highly complex regulatory instrument.
Finally, it is the customary political practice to consult the social partners on a matter with such a crucial bearing on industrial relations as working time. The government instead eschewed any form of concertation, refusing to negotiate with the social partners. This behaviour is all the more to be criticised if one considers that the 1997 interconfederal agreement signed by Confindustria, Cgil, Cisl and Uil had opened the way to transposition of the working time Directive in its entirety (Livio Muratore, Ires Lombardia).