The all-Italian tendency to discuss economic issues, especially those concerning the labor market, in ideological or generally political terms, has often led to neglecting the merits of the issues and not evaluating the concrete effects of the necessary changes.
When Matteo Renzi raised the need to reform art. 18, the CGIL, recently supported by the new secretariat of the UIL, has for the umpteenth time raised the old-Labor barriers by saying that the art. 18 was a "law of civilization", forgetting to remember that all workers of companies under 15 employees are not covered and that not all European countries cannot be considered uncivilized, not to mention the United States, where a similar law does not exists, if not in Germany however with the opting out clause.
CGIL and UIL have come to break with the Government by proclaiming a general strike and perhaps, after the entry into force of the new regulations, they will promote a repeal referendum, as CGIL itself did almost thirty years ago, receiving a resounding rejection by the body electoral.
The thesis of the CGIL has always been that the art. 18 is a deterrent against mass layoffs and that today, in the midst of a serious economic crisis, this freedom cannot be given to companies. If anything, this would be a reform to be implemented (according to the old adage "don't do today what you can promise to do tomorrow") in periods of economic expansion when it is easy for workers to move from one job to another, but not today when there is no work.
However, the reasoning neglects to consider that in reality the art. 18 does not defend workers with respect to the closure of companies as demonstrated by the significant increase in unemployment recorded in recent years, while it is clear that the malfunctioning of the labor market has been one of the elements that kept foreign investors away from Italy.
And if we are not able to reform all the factors which have been slowing down the country's competitiveness for a long time, it will be very difficult to hope for an economic recovery that could create new jobs. In order to try to obtain this result, Matteo Renzi proposed to make an exchange between less incoming flexibility (incentivising permanent hiring) and greater outgoing flexibility (reducing the sanctioning system for illegitimate dismissals). An objective that can be considered largely achieved with the "draft legislative decree containing provisions on the subject of permanent employment contracts with increasing protections", presented to the Council of Ministers on 24 December last.
The decree regulates a new regime of protection in the event of unlawful dismissal for all blue-collar workers, office workers and executives who will be hired with an open-ended employment contract, starting from the date the decree enters into force.
It should be noted that, in order to encourage the development of small businesses, if a company exceeds the threshold of 15 employees by virtue of permanent hiring, the application of the new protections also to staff previously hired, rather than mere art. 18 as per current legislation.
With this decree, for new hires, the taboo of the intangibility of the reinstatement sanction, which had resisted even with the Fornero Law, is definitively broken, since, as a compromise solution with the trade union-Labour left, the space recognized by art. 18, as reformed in 2012, the purely indemnity remedy has been residual and has been further compressed by the judges in these two years of its application.
Now the reinstatement is kept only:
a) for discriminatory dismissal, for unlawful reasons or in the event of marriage and pregnancy or notified orally
b) for dismissal for just cause or justified subjective reason, when the disputed fact does not exist, if directly demonstrated in court as proof of the dismissed worker.
In all other cases, the merely indemnity sanction without reinstatement operates:
– indemnity not subject to social security contributions from 4 to 24 months, based on company seniority
a) when the dismissal ordered for just cause or justified subjective reason proves to be illegitimate, but not for such a blatant non-existence of the reason given, such as the one that legitimizes reinstatement
b) when the technical-organisational or economic conditions for a dismissal for justified objective reason do not exist
– indemnity not subject to social security contributions from 2 to 12 months
c) for ineffective dismissal due to purely formal or procedural defects.
However, it must be pointed out that the new regulation of increasing protections, although simplified (and translatable into English!) with respect to the complex articulation of article 18 of the Fornero Law, risks once again entrusting to the Judge that broad discretionary assessment on the "non-existence ” or less of the material fact, which would have been appropriate to compress even with the use of the opting out, according to the need for certainty of the juridical relationships.
Moreover, precisely to give certainty to the costs to be incurred in the company personnel reduction plans, somewhat surprisingly, also considering the previous denials of Minister Poletti, the decree extended the indemnity regime of individual economic dismissals (for justified objective reasons) also to collective redundancies, which are cheap by definition.
Lastly, the new regulation also applies to trend-setting organisations, which carry out non-profit activities of a political, trade union, cultural, religious or cult nature, and which up to now, as employers, had been exempt from the application of the ' art.18 of the Statute of workers' rights towards their own employees. From tomorrow these organizations will have to apply to their workers those rights that they have so far well preached to others!
