Layoffs
Of the three referendum questions, the one concerning the matter of dismissals is structured in such a way that, if the "yes" wins, the discipline of dismissals established by the Workers' Statute in 1970, strengthened by the amendment made by law no. 108/1990. Furthermore, this discipline would be applicable to any employer, entrepreneur or not, with more than five employees, which would be an absolute novelty for hundreds of thousands of companies and about two million employment relationships.
In my opinion, a first profile of inadmissibility of the question lies in the fact that it - according to the constant jurisprudence of the Constitutional Court - should have a unitary content; here, however, there are even three contents: 1) "Do you want to repeal the part of the Jobs act relating to dismissals, applicable to hires from March 2015?"; 2) "for those hired before March 2015, do you want to repeal the amendments to article 18 contained in the Fornero law of 2012?"; 3) "Do you want the old article 18, thus restored, to apply to all employers who have at least six employees?".
I then see a second profile of inadmissibility, perhaps more serious than the previous one, in the fact that this last part of the question does not have as its object the abrogation of a law, but the issuing of a new law, which has never existed: through a complex work of scissors, a word of the eighth paragraph of article 18 is taken (the word "five" referring in the original text to the number of employees of the agricultural enterprises to which article 18 applies) to use it in the context of a different provision (i.e. the one that applies to the majority of non-farm employers). For this part, the referendum promoted by the CGIL becomes proactive. But the institution of the proactive referendum was rejected on December 4th.
What is certain is that the hypothetical victory of the "yes" in this referendum would abruptly interrupt the process, started almost twenty years ago with the so-called "Treu package", which tends to make our country more attractive for entrepreneurs and investors not only by reducing the tax burden on business and labour, the weight of bureaucracy and the energy cost differential compared to the rest of Europe, but also and above all by aligning our labor law with the best standards of the OECD countries. Those rules aimed at making our labor market more fluid and more capable of facilitating and supporting the transition of workers from weaker firms to more productive ones. The victory of the "yes" would not only mark a return to the order of the mid-nineties, but a stiffening of our labor market with respect to that order.
Job vouchers
The question aims at the repeal of the three articles of the legislative decree n. 81/2015 which contain the regulation of ancillary work. This form of employment relationship (for example: the clearing out of a cellar, the olive harvest over a few days, a series of private tutoring sessions) does not require the formal fulfillments typical of ordinary work: with coupons, or vouchers, purchased at the post office, at the bank or even at the tobacconist's, the social security contribution obligation is automatically fulfilled.
In this regard, I believe that everyone, even the promoters of the referendum, would peacefully agree on each of these two statements: A) "Job vouchers perform a positive function if they bring out undeclared work, ensuring greater transparency and protection for the person involved”; B) "Work vouchers produce a negative effect if they allow the transformation of regular work into ancillary work with the consequent lowering of the standard of treatment of the person involved". If we agree on both statements, the issue cannot be resolved with new rules or repeals. The problem lies only in establishing which part of the 115 million 10 euro vouchers used during the last year falls under case A, and which part under case B. This can only be established with the necessary field surveys. Having made this assessment, discussing what to do in a pragmatic way will be much easier and more productive.
Procurement
As for the question on tenders, it aims to abolish the modification of article 29 of the so-called Biagi Law of 2003, regarding passive solidarity between the client and the contractor towards workers, established by the Fornero law of 2012. The modification that would suppressed consists of: a) allowing national collective agreements to regulate the matter differently, according to the model of the so-called "flexible guarantee"; b) in providing that the employee employed by the contractor can take action against the client for the payment of his credit only after the action against the contractor has given a negative result, due to the inadequacy of his assets.
In general, the mandatory nature of a protective provision serves to prevent the individual worker from giving up that protection due to a lack of information or an imbalance in contractual strength. But when it is the collective organization that negotiates, and in particular the national union of the sector, on the one hand the contractual power relationship between the parties is rebalanced; on the other hand, to negotiate on the workers' side there is a team of expert representatives, able to assess whether, in the given circumstance, the renunciation of a particular protection can be accepted to increase employment opportunities (for example, in the case relevant here: for the activation of a contract that could otherwise be lost). The regulatory technique adopted by law n. 92/2012, which goes by the name of "flexible guarantee", has normally been practiced in our legal system since the end of the seventies, and aims to restore spaces to the union relations system that would otherwise be unduly compressed by the rigidity of the law.
