In the chaos of the last few hours in Budget Committee According to confirmed parliamentary sources, the Senate also spoke Quirinal, in order to prevent provisions that are detrimental to rights and guarantees could be approved without adequate debate. In particular, the excerpt concerned a provision that had been maliciously defined as the "shield" for the employers in the case of wages deemed unconstitutionally low. The measure, introduced through a subamendment of Brothers of Italy, established that "with the provision with which the judge ascertains, in every state and degree of the judgment, the non-compliance in article 36 of the Constitution of the wage standard established by the collective bargaining agreement for the sector and area where the service is performed, taking into account the levels of labor productivity and cost of living indices, as ascertained by ISTAT, the employer cannot be ordered to pay wage or contribution differences" for the period preceding "the date of filing of the introductory appeal if it has applied the wage standard established by the stipulated collective bargaining agreement" or "by the agreements of the same economic sector that guarantee equivalent protection for the sector and area where the service is performed".
The leaders of the opposition and the unions had defined it as “unconstitutional, shameful, a cowardly act”. Beyond these tones, which in reality reveal a substantial impotence in adequately carrying out one's functions, the excerpt responded to appropriate needs because such a delicate issue (which concerns the right to appeal to one's own natural judge, who is free to judge according to his interpretation of the law) cannot be addressed with a coup and a majority vote; but the problem exists and the law was a somewhat crude way of addressing it and possibly resolving it.
Gangmastering under fire: Milan Prosecutor's Office takes action
There has been a judicial process in place for some time now substitute teaching for the greater good, which features the attorney par excellence, that of MilanThe deputy prosecutor boasts about the substitute action Paul Storari, showing the results: 50 thousand internalized workers in companies and 60 million euro paid to workers. As we have already mentioned in previous articles in this column, the Milan prosecutor's office has discovered a new line of investigation in the field of criminal law and launched investigations involving several giants in the sectors of logistics, of the great distribution and of your digital ecosystem. and fashion, who are accused of violating the law on gangmastering, namely law 199/2016, approved to combat undeclared work and exploitation of workers, introducing the crime of "illegal intermediation and exploitation of labor" and sanctioning both the gangmaster (the person who recruits) and the employer (the person who employs). The law defines exploitation as taking advantage of the workers' state of need and provides for severe penalties up to to mandatory arrest in case of violence.
Commissionership and negotiations with companies
The prosecution makes use of the provisions that allow the judicial control of the company, that is, a real one commissioner, As well as the precautionary seizure of a sum; on the basis of these premises, the prosecution opens an informal negotiation with the company, which – having understood the antiphon – does not hesitate to get to the heart of the matter, whether it concerns salary payments or review of the supply chain of the contracts with related direct hiring, obtaining in exchange the revocation of the administration (and therefore the restitution of the entrepreneurial function) and the return of the seized sums.
These initiatives have been ongoing for years and address homogeneous sectors one at a time, characterized by collective bargaining regimes that are certainly not particularly successful, even if stipulated with all the trappings of trade union freedom.
Collective bargaining agreements and judges: how far can control be extended?
The judiciary is allowed, pursuant to what has been established from Article 36 of the Constitution., to investigate the non-compliance of a signed collective agreement and regularly applied? According to constitutional and ordinary jurisprudence, the collective agreements (Ccnl) are the main practical tool through which concrete definitions are defined remuneration and regulatory parameters Such as proportionality and sufficiency, which judges use as a fundamental reference to verify the fairness of remuneration and fill any gaps, ensuring the effective application of the constitutional principle even in the absence of a specific contract applied by the employer. A more recent approach allows judges to make their own assessment of the appropriateness of contractual salary provisions in specific situations. Indeed, no rules precludes the judge from considering the parameters that remain confined within the scope of what is established by the collective bargaining agreement. There are SCC rulings that recognize the judge's freedom of judgment even in the case of legislative provisions such as the introduction of a legal minimum wageBut this is a possibility that should be used with caution, rejecting the temptation to bypass the mediation that has taken place between the social parties, which in every circumstance responds to a balance based on the reality of power relations and economic-social conditions.
The problem of "direct" justice by the Prosecutor's Office
Then there is another problem that must also be considered by the Head of State as arbiter of the correctness of relations between institutions and as president of the csm. It is possible that a third-party judge has the right to have the final say regarding the application of a law, but in the circumstances of the new course of the Milan Public Prosecutor's Office, the illustrious companies with internationally renowned brands targeted do not even meet with a third-party judge. It does not take much to understand that every company, especially if it is not an excellence in industrial relations, forced into a position not to carry out its activities, accepts pay the ransom (to the kidnappers) rather than rely on the lengthy and uncertain outcome of a trial. Their relationship, therefore, begins and ends only with the prosecutor, whose action can take the form of real extortion.
Total criminal law and the do-it-yourself justice of the Prosecutor's Office
Now, as he wrote Philip Sgubbi In the essay "Total Criminal Law. Punishing Without Law, Without Truth, Without Guilt. Twenty Theses," published by Il Mulino, our existence is governed by a single law: criminal law. Total criminal law"because every space of individual and social life is penetrated by the punitive intervention that insinuates itself." Total "because even the time of individual and social life is occupied by punitive intervention which, when it strikes a natural or legal person, generates an extremely long or even indefinite duration of contamination, before the final resolution." Total "above all because the belief has taken hold in the community and in the political environment that criminal law can be used as a legal remedy for every injustice and every evil." And again total because it is not the law but "political correctness" that judges and punishes behaviors and activities.
In the cases we have discussed, the prosecution takes a further step forward: it fulfills its aspiration to do justice by itself With the help of media pillorying, without even granting those under investigation the right to appeal to the courts. It would be wise to keep these attitudes of the prosecuting magistrates in mind when we are called to vote in the referendum.
