French and Spanish ministers and politicians have begun to apply the theory of ''telling your daughter-in-law why your mother-in-law understands''. Beyond the Alps, to argue with Marine Le Pen, they take it out on the management of migration by the Italian government, giving more value to declarations than to the concrete behaviors of the right, which, here, end up, as always, in the practice of the '' chatter and badge''. For his part, the ineffable Minister of Labor of Pedro Sànchez, Yolanda Diaz, returning from the tour to the XIX Congress of the CGIL, to argue with Vox accused his parliamentarians of wanting to follow the example of Giorgia Meloni who, in Italy, abolished the basic income (which is not entirely true) and spread "junk contracts". The minister therefore made a clear reference to the provisions of the work decree of 1 May, in particular - we believe - in the matter of fixed-term contracts, since the Spanish government is very proud of what has been established in this regard in the recent labor reform, following a period of negotiation which involved three ministries, the social partners and to a certain extent also the European Commission, and which lasted for over a year due to the interruptions deriving from the pandemic emergency.
The new labor reform in Spain
The leaders of CGIL, CISL and UIL - after this reform - put back into use a glorious motto of the brothers Carlo and Nello Rosselli during the Spanish Civil War: ''Today in Spain, tomorrow in Italy'', modeling the new rules that entered into force in that country at the beginning of the current year. It is right to give to Caesar what belongs to Caesar; however, it would be appropriate to put a few dots on the. It was the European Commission that demanded a significant reduction from the Spanish government, otherwise threatening to block the installment of the former Recovery Fund. In fact, according to the official data of the INE, in Spain beyond the 25% of workers ha fixed-term contracts (with much higher percentages in tourism-related businesses and construction), and the unemployment rate it is among the highest in Europe: 14,57% in the third quarter, out of the total active population, and 31,15% among young people under 25 who struggle to find contractual protection.
Presumption of permanent contract, with two exceptions
The reform should reverse this trend that has emerged in recent years, since the reform introduces the presumption according to which the employment contract must, as a rule, be indefinitelyExcept only two exceptions: that of production needs and that of replacing other workers. In any case, these contracts cannot last more than six months (or a year in the presence of sectoral collective agreements) and can be used by companies for no more than 90 days in a year. This regulatory change involves, in fact, the disappearance of the figure of the contract for work or specific service. This is the most significant change if we consider that this contractual figure fluctuates between 38 and 40% of the total of fixed-term contracts. Basically, the conclusion of the work or service no longer determines the termination of the contract because the company, once the work has been completed, will have to offer the worker a proposal for relocation, after carrying out, when necessary, a path of corporate training. If the worker refuses the offer or it is determined that it is impossible to relocate him, in the absence of a suitable position, the contract is terminated, with a7% allowance calculated on the wage scales provided for in the collective agreement. As can be seen, the intention is textbook, but avoidance and alternatives – as is right – are not precluded. How did the Sanchez government manage to convince the employers' associations to accept such an apparently rigid discipline? And why doesn't the Italian government follow this example?
The regulation of sanctions for unlawful dismissal
Obviously – a Genoese would say – it means that the Spanish companies had their convenience. In fact, to realize this, it would be enough to take that extra step that no one of us dares to take: observe the discipline that is in force in Spain in terms of termination of the employment relationship. Beyond the envisaged procedures, the main element of differentiation between the various individual dismissal models is represented by the discipline of sanctions for unlawful dismissal: real protection with reinstatement or compulsory protection with only the indemnity of compensation. The rules, depending on the case in point, vary, in the different countries, between these two forms of protection but, in general, discriminatory dismissal is considered void. Those in force in Spain, the United States and the United Kingdom are the systems which, even in the event of discriminatory dismissal, allow the employer to opt for compensation instead of reinstatement. L'compensation, in Spain, is not determined by the judge declaring the dismissal unlawful, but it is related to length of service. The observation is almost trivial: if there are no particular obligations to reintegrate, while the cost of the dismissal is known in advance on the basis of automatic parameters, hiring on a permanent contract does not constitute a particular problem. In Italy, when individual dismissal was ad nutum (article 2118 of the civil code) with the sole obligation of giving notice, fixed-term work was strictly permitted in some cases envisaged by law.
The changes to the rules in the work decree of May XNUMXst
In conclusion, it is worth clarifying the scope of changes to the rules on fixed-term contracts contained in the labor decree of 1 May: the same that led the Landini/Schlein tandem to accuse the government of increasing precariousness by favoring recourse to this type of relationship. These are unfounded criticisms. L'acausal use of the fixed-term contract remains limited to 12 months. Renewals and extensions still cannot exceed the 24-month limit, however, in relation to causality provided for in the collective labor agreements; in their absence, the so-called causalone: i.e. that generic reference to the ''needs of a technical, organizational or productive nature'' (to which is also added ''replacement'') which were the amusement of the labor judges when the employees, upon expiry of the fixed-term contract, began a dispute for the transformation to an indefinite period. There Poletti reform of 2014 had no other purpose than to get rid of, due to its generic all-inclusiveness, the ''causalone'' and liberalize the use of the fixed-term contract (according to the foreseen requirements) up to 36 months. Basically, the decree confers the social partners to establish, after one year, i reasons why the relationship can continue for another 12 months; and the return of causality, moreover extremely generic, make the type of contract subject to the discretion of the labor judge. For those who have forgotten: the dignity decree was launched, amid rich prizes and cotillonos, by Count 1, but its application was soon suspended, by a provision of Count 2 as a consequence of the negative effects produced on the labor market, during the pandemic.
