It is possible that the first cost-free reform that this Parliament and this government majority can implement is that of making money Article 39 of the Constitution is applicable to give general effectiveness of all collective agreements signed by companies and workers who are legitimate representatives, assuming the principle that the will of the majority extends to everyone?
It would be an excellent idea, provided that the existing reality is accepted as normal, made up of a system of articulated contractual relationships in which coexist traditional national collective agreements, subscribed by employers' associations and trade unions, with company contracts signed by individual companies and trade unions representing the workers concerned.
Also taking into account the agreements already reached between some of the most important business associations and trade unions, all contracts should be approved by the majority of delegates interested and validated by referendum, if requested by the union or by a significant part of workers. In this way, while repealing the last paragraph of article 39, an ordinary law would guarantee the two cornerstones of the constitutional norm: the freedom of contract and majority rule.
From this point of view, the number of contracts registered with the Cnel, of which only a small part is suspected of "piracy", would have no significance, but their legitimacy, which would require strict compliance with certain procedures. The central element of this contractual framework consists of a pluralist approach to the system of industrial relations which starts from the principle of proximity which transfers the exercise of a faculty such as that of bargaining as close as possible to the workers concerned and to the company.
Naturally, the model that accompanies the national collective agreement with the company supplementary bargaining would remain intact. After all, the Italian legislation already provides for rules of derogability on many matters from the national contract, such as the one introduced by the art. 8 of Legislative Decree 138/2011 in support of territorial or corporate proximity bargaining with erga omnes effectiveness.
In this logic, one could even say that it would be desirable for the national collective agreement performed a function of minimum guaranteeapplicable in the absence of a signed contract at a level closest to the place of work. Without radicalizing the reasoning, it would be enough to look at an economic reality in which Italy is strongly integrated, such as the German one, in which national collective agreements for the sector and company collective agreements coexist and the decision to leave the scope of the national collective agreement to give life to a company collective agreement is taken jointly by the owners and by the workers represented by the union.
The troubles produced by the incorrect formulation of the fourth paragraph of the art. 39 derive not only from a static representation of the business reality but from the implicit use of rigid corporate norms of the old regime, the "categories" that responded to a need for strict political control of union action. The concept of category, which would delimit the scope of application of a collective agreement, makes sense if the categories are predetermined. If the principle of proximity, functional to a dynamic economy, is accepted, the reasoning must be reversed (it is the will of the parties to determine the scope of application of the agreements) by affirming the rules of a contractual pluralism based on the full legitimacy of the contracting parties.
The need to bring the contract closer to the workplace and its particular characteristics cannot be traced back only to some particular categories such as that of pilots, but must be extended to individual companies and workers who freely decide to move in this direction, as is occurred in the FCA affair. The multiplication of corporate collective agreements it cannot be interpreted a priori either as “contractual anarchy” or as a “hundred flowers policy”, but is legitimized only by the authority and representativeness of the protagonists to the extent that they create and distribute value. After all, a pluralist contractual model can only favor trade union organisations, strengthening their presence in the workplace, increasing the role and competence of delegates and improving workers' conditions.
Without neglecting the fact that the same would benefit from it union unity process, not in "organic" terms as they used to say and which today for various practical reasons would be impossible, but by giving life to a stronger and more extensive bargaining based on an effective and shared "unity of rules".
That said, the recent intervention by Lucia Valente, former labor commissioner of the Lazio region, who clearly identifies the bottleneck of the fourth paragraph of art. 39 and indicates the solution in a modification of the same and in the approval of an ordinary law that allows contractual pluralism subject to the principles of freedom and representativeness of the contracting parties. On the other hand, the other rock on which the attempts to apply art. 39, the registration of the statutes of trade unions which ratify a democratically based internal order (which shouldn't scare anyone) could be attributed to the Cnel with the same ordinary law.
Of course, the country is experiencing a dramatic emergency situation, but if political circumstances make it possible to implement a law that has been awaited for over seventy years, it would be a strong sign of the vitality of the institutions.
