Italy: EIRO CAR on “The effect of the Information and Consultation Directive on Industrial Relations in the EU Member States five years after its transposition”

  • Observatory: EurWORK
  • Topic:
  • Participation at work,
  • Labour and social regulation,
  • Industrial relations,
  • Published on: 18 January 2011



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Directive 2002/14 has been implemented in Italy by legislative decree 6/2/2007 n. 25. Until March 2008 the decree has been applied only to undertakings with more than 100 employees; now it is applied to all undertakings with more than 50 employees. Until now the effects of the Directive have been very poor and disappointing, mainly because the antagonistic tradition of Italian industrial relations is quite far from the inspiration of the experiences of co-decision traditionally practised in other EU Member States. Furthermore the Italian law has implemented the Directive simply transposing almost literally the text of the Directive, without defining precisely neither structure and statutory procedure for constituting I&C bodies, nor contents of rights recognized to them. In fact I&C body rights and functions are assigned by the Italian law to RSA or RSU (trade unions representatives bodies at workplace), but the establishment of these union bodies is mandatory only for employers which voluntarily apply a collective agreement of any level. So, the consequence of this regulatory choice is that there is no I&C bodies in undertakings not covered by collective bargaining. At the same time, in the undertakings covered by collective bargaining, the implementation of the Directive has added very rarely any substantial rights other than those already obtained by trade unions themselves though collective agreements.

QUESTIONNAIRE

Question 1: Trends in the incidence of undertaking- and/or establishment-level information and consultation bodies

(a) Using official statistics where possible, please provide annual data for the years 2005-2009 (inclusive) on the number and proportion (%) of undertakings and/or establishments which have an information and consultation (I&C) body or equivalent.

No official data are available for the years 2005-2009. Because I&C body rights and functions are substantially assigned by the Italian law implementing the Directive (legislative decree 6/2/2007 n. 25) to “RSA” or “RSU” (unions representatives bodies at workplace according to Art. 19 of law n. 300/1970, the Workers’ Statute), it is reasonable to believe that the number and proportion of undertakings and/or establishments which have an I&C body are equivalent to those of the undertakings which have a RSA or RSU: that is, around 40% of the undertakings, mainly those of large size.

(b) Where possible, please provide data to show trends in the uptake of I&C bodies by:

(i) size of undertakings/establishments in terms of employment levels (i.e. under 50 employees, 50-99 employees, 100-199 employees; 200-499 employees, 500 or more employees or other appropriate size bands used in national statistics)

No specific data area available, but I&C bodies are mainly in undertakings with more than 100 employees

(ii) sector (broadly defined, i.e. industry/manufacturing, private services, public services).

No specific data area available, but I&C bodies are mainly in industry/manufacturing and public services sectors.

(c) Please provide information on the extent of I&C arrangements in:

(i) smaller undertakings (those with fewer than 50 employees)

I&C arrangements are not envisaged in undertakings with fewer than 50 employees.

(ii) public administration.

I&C arrangements are provided and operative in 100% of public administrations.

(d) What factors explain any increase/decrease in the incidence of I&C bodies (e.g. economic climate, legislative change, other)?

The presence of I&C bodies is directly linked to the area of application of collective agreements; Italian collective agreements at any level lack general legal application (so called erga omnes effect). For this reason the progressive reduction of coverage of collective bargaining has been the most relevant obstacle to establish and extend the presence of I&C bodies.

Question 2: Procedures for establishing I&C bodies

(a) What are the procedures for establishing I&C bodies in your country? For example, are I&C bodies mandatory (i.e. employers are obliged by law to establish them), or is their establishment dependent on employees/trade unions triggering statutory procedures? In the latter case, who can initiate the procedure? Is there a specified level of employee support required?

Only employers who apply a collective agreement of any level are obliged to establish an I&C body, if the union representatives at plant level (RSA or, if it jointly established by a plurality of unions, RSU) require it. A formal procedure does not exist; it can be regulated by collective agreements, but it is very uncommon.

(b) Please supply any available data on the extent to which I&C bodies have been:

(i) requested by employees: 0%(ii) requested by trade unions: 100 %(iii) initiated unilaterally by employers: 0%

(c) Have the national government and/or the social partners in your country actively promoted the establishment of I&C bodies? If so, how have they done this?

No. The Government did not take any measures to promote the establishment of I&C bodies. Even social parties have not been very interested in promoting I&C bodies, as envisaged by the Directive, because usually their role and functions (as recognized by the Italian law implementing the Directive) had been already assigned to RSA or RSU by sectoral collective agreements.

(d) What explains the absence of I&C bodies in some undertakings/establishments in which I&C bodies are supposedly mandatory or the statutory right to trigger their introduction applies?

According legislative decree no. 25/2007, undertakings which do not apply any collective agreements – pursuant art. 19 Law n. 300/1970 – are not bound to establish RSA or RSU; so, in those workplaces no actors entitled to require the establishment of I&C body exist. The Italian law implementing the Directive did not introduce a statutory procedure to establish an I&C body in an undertaking not covered by collective agreements and, for this reason, without any operating RSA or RSU.

Question 3: Constitutional provisions

(a) Are the structure, rights and functioning of I&C bodies in your country determined by:

(i) statutory requirements that apply to all establishments/undertakings(ii) organisation-specific agreements/arrangements that may differ from the statutory provisions, providing the scope for organisations to vary the design of the I&C body and the processes of information provision and consultation(iii) a mixture of the two.

A mixture of the two: the law does not envisage the structure and functioning of I&C bodies, but it has delegated this regulatory aspect to collective bargaining. On the other hand, rights of I&C bodies are stated by law; however, collective agreements can better specify and extend in favour of unions these rights granted by law.

(b) To what extent can and do organisation-specific agreements/arrangements differ from national statutory requirements on I&C? What motivates the parties to introduce such agreements/arrangements? Please summarise any available data on the provisions of organisation-specific agreements/arrangements.

Collective agreements can better specify and extend the minimum rights granted by law; the main reason to reach the agreement is to clarify the concrete contents, ways and procedures to exercise these rights, because the wording of the law is not precise nor well defined.

(c) Are the terms of organisation-specific agreements/arrangements enforceable? What procedures – e.g. complaint to external administrative or judicial authorities (please specify which) – are available for this purpose?

The terms of specific agreements are enforceable. If undertakings violate these agreements, they are liable on both civil and administrative grounds. On the former, I&C bodies can obtain a judicial sanction against employers to force them to stop the illegal behaviour and to receive an economic compensation. On the latter, even if I&C bodies do not start a judicial procedure, employers can be condemned to pay an administrative fine from EUR 3.000,00 to 18.000,00 EUR.

Question 4: The main subjects for I&C

(a) What types of information are regularly provided by senior management to I&C bodies? Please give examples.

According the law, management should and generally provide information:

a) on the recent and expected developments of the undertaking's or the establishment's activities and economic situation;b) on the situation, structure and expected developments of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment;c) on decisions likely to lead to substantial changes in work organisation or in contractual relations.

This information mainly concerns results of the annual budget, strategic choices and plans of the undertaking, transformations of the organization able to produce substantial consequences on conditions of employees (i.e. collective dismissal, transfer of undertakings, delocalization abroad, working time, shifts).

(b) What issues are typically the subject of consultation between management and employee representatives? Please give examples.

Exactly the same subjects above indicated for information.

(c) What issues are typically raised by employee representatives themselves? Please give examples.

Almost all the issues of information now granted by law have been already raised by union representatives themselves through collective bargaining. Since the 1990s the main sectoral collective agreements (manufacturing, trade) granted to the RSA or RSU the rights to be informed in advance on the most relevant organizational choices made by the employers. Now, the law has introduced the right to be consulted in advance on the same issues – rather than merely informed – but in most of the cases this consultation is only a formal fulfilment.

(d) Since the onset of the recession, to what extent have I&C bodies been a vehicle for dialogue and consultation over management decisions concerning restructuring and recession-related developments? Please provide a general overview with evidence and examples.

According to Italian traditions, I&C bodies, so far, have had very little influence on management decisions. Collective agreements were mainly concerned with decisions to use social welfare supports to avoid collective dismissals, but very rarely they have dealt with organisational or commercial choices by employers. An exception are very large undertakings like FIAT and the case of the agreement in 2010 on the new investment and production in the establishment in Pomigliano d’Arco.

Question 5: The nature and extent of the I&C process

(a) How often do I&C bodies typically meet with management? Is it common practice for special meetings of the I&C body to be called to consider urgent or important matters? If so, on what issues?

Pursuant to main sectoral collective agreements, I&C bodies meet with management a minimum of four times per year. It is very common that I&C bodies request to be informed urgently on important matters: particularly for collective dismissals, transfers of undertakings, movement of employees, changes in working time.

(b) How does consultation take place? For example, is information on proposed changes provided by management so that employee representatives can prepare a considered view? Do managers provide a reasoned response to employee representatives’ opinions? Examples of good and poor practice would be helpful.

There is no formally or expressly regulated procedure, neither by law nor by collective agreements. Usually management provides in advance information on the matters to be discussed; I&C bodies can ask to add more details to this information, if they are insufficient or not clear in some respects. After that, usually a meeting with management and RSA or RSU representatives is organised. Otherwise, if management does not need to reach a collective agreement to implement its plan, it is very uncommon that management gives a reasoned response to the employee representatives’ comments and reactions. Management often only hears the opinions of the employee representatives.

(c) Is information usually provided on a confidential basis to the I&C body before management decisions are taken and announced? Are there examples of I&C not taking place due to confidentiality considerations?

Yes, it is very common that information is provided on a confidential basis to the I&C body.

(d) Please outline what guarantees and protections employee representatives usually have, e.g. time off work, training, material and financial resources, facilities, protection against dismissal/ discrimination, access to workers.

The law implementing the Directive does not provide any specific guarantees or protections in favour of I&C body representatives. They enjoy the rights granted by law and collective agreements, only if they are RSA or RSU members too. In that case:

a) they cannot be moved without the conssent of their union during their mandate and until one year after it is terminated; b) they can benefit of paid time off to perform their union representation role. Paid time off for union representation activities consists of a minimum (stated by law) of eight hours per month or, in undertakings employing fewer than 200 employees, an hour multiplied by the number of employees per year. The number of representatives that can benefit of paid time off for each trade union is one in undertakings employing fewer than 200 employees, one representative every 300 employees in undertakings employing fewer than 3,000 employees, one representative every 500 employees in undertakings employing more than 3,000 employees;c) unpaid time off for a minimum (stated by law) of eight days per year.

(e) Can employee representatives seek external advice on how to handle difficult topics for consultation (e.g. from trade unions, external consultants)? In the case of the latter, who pays?

Yes, they can seek technical advice and consultancy from union representatives at higher level (local, regional or national) or from professional union consultants; in this latter case, the unions pay.

Question 6: Practical outcomes of consultation

(a) What evidence is there, if any, of the consultation process resulting in the modification of management decisions and/or the process or timetable for their implementation? Please give an overview of the impact of consultation with examples.

The impact of consultation process on management decisions is very limited. Its results are mainly influenced by the contractual and bargaining strength of the unions in any specific context. Only in large undertakings, where unions are able to credibly threaten serious strikes or the withdrawal of collaborative practices, their opinions are effectively taken into consideration by management.

(b) How many complaints per year concerning the operation of I&C procedures (e.g. employers not consulting in circumstances where consultation is obligatory) have been lodged with administrative or judicial authorities since 2005? Who were the claimants and what were the key issues? What proportion of these applications were upheld? What sanctions were imposed?

Complaints are common, but they are rarely brought before Labour Courts. Trials do not exceed 50 per year, but they mainly concern violations of specific information and consultation procedure stated by law in case of collective dismissal and transfer of undertakings. When the Court finds a violation (around 30% of cases), it declares null and without any legal effects the dismissals or the transfer decided by the management.

Question 7: Relationship between I&C bodies and other forms of employee voice

(a) Can, and if so do, trade unions play a part in the establishment of I&C bodies and in their operation? Do external trade union officers often sit on I&C bodies? How common is it for I&C bodies to include both union and non-union employee representatives?

The law establishes that functions and rights of I&C bodies are attributed and operated by trade union representatives at plant level. So, the I&C bodies are constituted by trade union representatives at plant level: RSA or, if it is jointly established by more than a trade union, RSU. There is no distinction or autonomy between I&C bodies and trade unions bodies at plant level (the ‘single channel’ model).

(b) Is there any overlap between the remit of I&C bodies and trade union-based collective bargaining? If so, how are such issues resolved?

For the reason explained above the overlap is complete.

(c) Is the consultation required by the collective redundancies/transfer of undertakings Directives carried out via I&C bodies, trade unions or other employee representatives?

The consultation required by collective redundancies/transfer of undertakings Directives are carried out via trade union bodies at plant level.

(d) Is the use of direct forms of employee involvement by management through such things as team briefings seen as complementary to or in competition with the I&C body?

Direct forms of employee involvement by management are very uncommon. If they occur, these forms are considered as complementary to the I&C body.

Question 8: Views of the social partners

(a) What are the attitudes of the main employer and trade union organisations in your country towards (i) the value or necessity of I&C bodies and (ii) the operation of I&C bodies in practice, especially in a recession?

The general attitude is dominated by scepticism because the implementation of the Directive has not attributed new effective rights to unions and employees compared to rights already acquired by trade unions themselves through collective bargaining. Because co-decision and participation are far from the Italian tradition of industrial relations, there are no particular expectations of an effective and positive role of I&C bodies and practices.

Also employers and their associations are critical about the real usefulness of the directive. The Italian production system is mainly composed of small and family firms, which very often are managed directly by the owners. So a traditional and conservative view prevail, whereby the roles of management and of employees’ representatives should be kept clearly and rigorously separated, limiting the influence of unions on organisational and strategic decisions.

(b) Have the social partners, jointly or separately, conducted any review of the operation of the national regulatory framework governing I&C? What is their assessment of its effectiveness? Is there any pressure from the social partners for reform?

There is no information on reviews conducted by social parties on the regulatory framework of I&C and there is no real pressure from the social partners for reform.

Commentary by national correspondents

The Italian law has implemented the Directive simply transposing almost literally the text of the Directive, without defining precisely neither structure nor statutory procedures for constituting I&C bodies, nor contents of rights recognized to them. In fact I&C body rights and functions are assigned by the Italian law to RSA or RSU (trade unions representatives bodies at workplace), but the establishment of these union bodies is mandatory only for employers which voluntary apply a collective agreement of any level. So, the consequence of this regulatory choice is that there are no I&C bodies in undertakings not covered by collective bargaining. At the same time, in the undertakings covered by collective bargaining, the implementation of the Directive has added very rarely any substantial rights other than those already obtained by trade unions themselves though collective agreements.

Massimo Pallini, Università degli Studi di Milano

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