Referendum questions are deadly improper weapons. And they have a feature that makes them particularly dangerous. They are very similar to the notorious anti-personnel bombs used during the Balkan wars: once they have been inserted, it is practically impossible to deactivate them. And what's even worse: their outbreak is delayed over time. Thus, at the fixed time, the explosion arrives punctually, whatever happens in the surroundings: whether no one passes by at that moment, or whether an entire school trip is overwhelmed.
It is enough to transcode the metaphor into politics to understand that, once engaged, the referendum mechanism continues its course inexorably, to explode months later, perhaps in an unexpected and radically changed political context. Sometimes the operation can go well; at other times the change of scenery can prove disastrous, even for the promoters of the referendum themselves.
But let's come to the case we are talking about and which blossomed like a gigantic Menhir on the bumpy path at the end of the legislature. The Constitutional Court will be called in less than a month to rule on the admissibility of three referendum questions (regarding vouchers, joint liability in the event of a tender and -hear, hear!- of individual dismissals) promoted by the CGIL, in support of which the Corso d'Italia organization has collected over 3 million signatures amid general indifference.
After the "defeat" on the jobs act, the Confederation started this operation "partly as a joke, partly so as not to die"; something he had to do. He invented an old-fashioned package (the Bill of Rights), containing the questions and a popular initiative bill. If the Consulta gives the consent to the questions themselves, the Government of Count Gentiloni Silveri will have to set the date of the consultation in a period of time between the next 15 April and 15 June.
In order not to slip back into another referendum competition, there are only two emergency exits: o a substantial modification of the law in the sense requested by the promoters of the referendum or the postponement of a year as a result of early general elections. This second hypothesis appears to be the most probable. Also because, if we were to go to the referendum, let's not expect that there is only one political force in Italy willing to fight for the No, a stone's throw away from the renewal of the Chambers.
Basically, in the week of the resurrections (of the Senate, of the Cnel, of the Provinces, of the Government itself) Article 18 of the Workers' Statute has also been resurrected casting a sinister shadow on that set of rules which – in the context of the jobs act – have transformed, for new hires since 15 March 2015, the normal protection against unjustified dismissal from ''real'' (through the judicial reinstatement in workplace) to ''compulsory'' (limited, with exceptions, to compensation for damages).
The scalpel of the abrogative question dissects the rules on withdrawal contained in two distinct laws: the legislative decree n.23/2015 establishing the contract with increasing protections and article 18 as amended by the Fornero law of 2012 (the discipline now in force for the great majority of Italian workers). But the manipulation of the words would not lead to a dry restoration of the statutory legislation, but would produce a newly coined article 18: with reinstatement in the workplace in the event of disciplinary dismissal deemed illegitimate, even for companies with up to 5 (no longer 15) employees.
In those with a smaller number of employees, the reinstatement would not be automatic but at the discretion of the judge. Therefore, albeit limited to the protection of withdrawal for disciplinary reasons deemed unjustified in court (but we are not entirely sure that the law does not apply to other cases as well), there would even be an extension of coverage to micro-companies that have always been excluded.
Years ago there was an attempt to abolish the limit of 15 employees through a referendum, but the Italians were wise enough not to go and vote by blowing up the quorum necessary for the consultation to be valid. In short, a nice mess, much more destabilizing – admitted and not granted that it was – than the outcome of the referendum on the Boschi law. It is plausible that employers would think several times before hiring and that perhaps they would take the opportunity to fire as long as a less vexatious discipline was still in force than the one that could result from a possible referendum.
Furthermore, a country that tightens the rules on the use of labor (repealing vouchers means taking it out on a tool that has worked and produced income and work) cannot think of attracting foreign investments. Indeed, whoever can will leave. But are we really sure that the question regarding layoffs is admissible?
Looking at the jurisprudence of the Court, the question is not so peaceful; this, for a formal and a substantial reason. As for the first aspect it does not seem possible to allow the repeal of an entire legislative provision to be proposed with the same question (the legislative decree n.23/2015 establishing the contract with increasing protections) and entire scattered blocks of the "new" Article 18 by law n.92/2012, when it comes to regulations that have no connection to each other and which apply to different subjects (depending on whether they were hired before or since 7 March 2015).
As for the element of a substantial nature, the Consulta has not always endorsed the manipulation of legal texts in order to attribute different contents and meanings to them, as happens precisely in this case with the definition, through a skilful ''cut and sew'', of a brand new article 18. The abrogative referendum is designed to repeal laws, not to initiate an indirect and spurious process of regulatory construction.
