Andrea Orlando on the field: “The Jobs act it was not alone the abolition of article 18, was the last big one liberal wager on the labor market of a series that began in the 2017s, and in which the left took part. The bet was already lost a few years after the approval, so much so that at the 18 congress in which I ran for secretary, his rethinking was already being considered. Restoring Article XNUMX as it was would perhaps be anachronistic, but it is still necessary to intervene because different judgments of the Council have highlighted the grave inconsistencies of the Jobs act”. Thus, in an interview, the Minister of Labor and Social Policies integrated the astonishing statements of Enrico Letta to the Manifesto (“The Pd program finally surpasses the Jobs Act”), explaining the liberating meaning of that adverb (finally) and the reasons for the distancing of today's Democratic Party with respect to that package of rules (a delegation law with as many as eight delegated decrees) which was the flagship of the Democratic Party of yesterday.
Previous labor reforms
We discover today - beyond the erroneous considerations regarding article 18 - that the Jobs act "was the last great liberal bet on the labor market in a series that began in the XNUMXs and in which the left took part". Orlando takes it from afar and accuses a string of ministers of the Democratic Party or of the center-left of liberal deviations starting from Tiziano Treu, which was the first in 1993 to break – on indications of the EU – the bureaucratic chains of public employment, which has always been unusable and circumventable, but a real ordeal for companies intending to hire.
Also the reform of fixed-term contracts – in a non-prohibitive sense as previously, albeit usable in the presence of precise requirements – was promoted by a European directive. We then moved on to the White paper on the labor market , Biagi law, which a Pd minister of the last Prodi government, Cesare Damiano, contented himself with adjusting in secondary aspects, as a concession to the fury of the vaporous majority of the Union.
Article 18: the Fornero reform changed it, not the Jobs act
THEArticle 18 of the Workers' Statute of 1970 - with the real protection of the reinstatement - has been for years at the center of a very harsh social conflict, which over time became the object of an ideological defense by the political and trade union left, which identified Sergio Cofferati, then leader of the CGIL, as the Cid Campeador of that battle. Article 18 has never been abolished: it was "newbie” in the context of Fornero reform of the labor market (law n.92 of 2012) still in force. The new article 18 – with some convoluted flexibility regarding dismissal for economic/objective reasons – today represents the general regulation in force on unlawful individual dismissals. This "Fornero" law benefited from a position rent. The rancor and social hatred unleashed against the pension reform was so great that the ex-minister's persecutors forgot about law n.92.
The contract with increasing protections
Then came, in 2014, the Jobs act, within which the legislative decree n.23/2015 was launched, which it is not an intervention to further modify Article 18, Your Holiness, but introduced a new type of contract (the permanent employment contract with increasing protections), substantially parallel to the usual one, applicable to new hires starting from the entry into force of the decree.
The new regulations have identified forms of compulsory protection only for certain cases of unjustified dismissal, while confirming the obligation to reinstate them in the most serious cases. However, if he returns to government, Orlando will be able to save himself the burden of revising the decree, given that the Constitutional Court has already thought about it a cancel some important innovations introduced in that contract, such as the predictability for the company of the costs of a dismissal, related to length of service. But curiosity about the anti-liberal turn of the Democratic Party pushes us to delve into the problem by going back to that electoral program which, according to Letta, would "finally" have managed to go beyond the jobs act.
The Pd program and the Spanish model
“The fight against precariousness – we read – with an intervention on fixed-term contracts, on the model of what was done in Spain, re-proposing the need to introduce the reason from the beginning of the employment relationship, valuing collective bargaining, making structurally permanent contract is more advantageous than the temporary one".
The Pd's program then indicates the technical-normative methods to achieve this objective which, however, follow almost nothing of the Spanish model ("And we will do like Spain..."). The recent reform of fixed-term contracts (which amounted to 25% of employment relationships, so much so that the EU made the revision subject to the disbursement of the first installment of the Recovery Fund) implemented by Sanchez government establishes that the use of this typology cannot last more than six months (or one year in the presence of collective agreements) and for a use of no more than 90 days in a year. There is though between us and Spain a small difference which primarily concerns the rules of dismissal. When it's easy to fire so does hiring.
In Spain, if the Labor Judge deems it upon appeal by the worker dismissal as "improcedent" (illegitimate) orders the company to pay the fired employee an indemnity equal to 33 days' salary for each year of service, up to a maximum of 24 months. Not many explanations are needed to identify the differences with the withdrawal order in force in Italy, also referring to the heretical contract with increasing protections.
Why take it out on the fixed-term contract?
Then, to me the criticism contained in the Third Pole Program regarding the Dignity decree (which was frozen by popular acclaim during the pandemic) seems well founded: why blame the fixed-term contract, which is basically the most protected precarious form? He complains that this contract is also used for short periods. Because vouchers have been abolished forcing companies to resort to other forms, perhaps less pertinent?
With the new discipline, fewer disputes and more conciliations
As for the regulation of unjustified dismissals, Orlando himself defines the restoration of article 18 as "anachronistic" (like the ius primae noctis?). However, it would do well to make the positive results of the new discipline public. Pietro Ichino took care of it on his website, publishing the table below, from which a real one emerges collapse of litigation regarding dismissal.
“The data that emerge from the permanent census of judicial proceedings in the field of work – wrote Ichino in 2017- are impressive. It is already remarkable in itself the reduction of the total number of disputes before the specialized sections, in the private sector: from 2012 to 2016 they decreased by a third. But even more drastic is the ongoing reduction, in the same sector, of disputes regarding dismissals and fixed-term contracts: in the same five-year period the number of these judicial proceedings decreased of 69%".
"The other thing, no less important, on which we must ask ourselves - continued Ichino - is the meaning of this phenomenon, which the technicians indicate with the expression "deflation of litigation" and which manifests itself in these dimensions only in the labor sector private sector (in the public sector, litigation, again within the competence of labor judges, decreased by only 13 per cent in the same five-year period, against a reduction also in the number of interested parties). To precisely identify the cause of the phenomenon, it will also be necessary to examine the data relating to the years prior to 2012, which are not yet available. In any case, it is reasonable to hypothesize that it had a strong influence on the reduction in dismissal proceedings the new discipline contained in the same law of 2012 (the Fornero reform, ed.): it, in fact, has reduced the “stakes”drastically limiting the judge's discretion in disposing the reintegration in the workplace and setting precise limits, from 12 to 24 months, al compensation obtainable by the worker in the case of a favorable sentence, which instead was previously unlimited and could reach colossal sums in the event that the proceeding lasted for many years. Reducing the stakes means reducing the risk of judgement, therefore make reconciliation easier between the parties, which avoids the judicial dispute. Correspondingly, in fact, since 2013 there had been news of a sharp increase in settlements, especially in the matter of dismissal for "objective" reasons, i.e. economic or organizational".
Finally, Ichino knew his chickens well. And it presaged: "Predictably, there will be those who will indicate in this decline in the activity of lawyers, judges and chancelleries a confirmation of that "dismantling of protections", which from the Treu law of 1997 onwards is invariably denounced in every new law on the matter of work". It seems that the jurist was a good prophet. But, like him, he concluded: “What we are dismantling is only the negative peculiarity of our country, whereby until a few years ago every dismissal almost automatically generated a legal dispute. The only category that certainly drew a conspicuous benefit was the legal class”.
