Parliament approves reform of law on strikes in essential public services

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At the beginning of April 2000, the Italian parliament approved a reform of law 146/1990, which regulates the right to strike in essential public services and defines the role of the Guarantee Authority which oversees application of the law. The reform has introduced important changes as regards the law's scope of application, which now includes certain small business owners and self-employed workers, the functions of the Guarantee Authority, and the system of sanctions.

On 4 April 2000, parliament definitively approved law 83/2000, which makes important changes to law 146/1990 on the right to strike in essential public services. The proposal for reform had been submitted in March 1999 by the government led by Massimo D'Alema. The decisive impetus for its approval came from a series of strikes in the transport sector at the end of March and the beginning of April 2000, which confirmed the high level of conflict in the sector (IT9707209F and IT9802220F) - see table 1 below. Disagreements that arose during the debate in parliament mainly concerned the extension of the law's range of application to certain categories of self-employed workers and small business owners, and the request, put forward principally by the Communist Refoundation Party (Rifondazione Comunista), that the right to take industrial action in the sectors involved should not be reduced too radically to the advantage of the users of services.

Note: figures represent total of strikes called by different unions, independent of participation, territorial coverage and with possible overlapping schedules.

Source: Ministry of Transport.

The main points of the reform

Law 146/1990 affirmed the principle that a compromise must be found between exercise of the right to strike, guaranteed by article 40 of the Italian Constitution, and other constitutionally protected rights of the person, like freedom of movement and communication, the protection of health and safety and the right to care, to social security and to education. To this end, the law provides that enterprises delivering essential public services must reach collective agreements with trade unions or workforce representatives which stipulate the indispensable services to be guaranteed even in the event of strike action. The correct application of the law is supervised by a special Guarantee Authority (Commissione di Garanzia) consisting of nine experts on constitutional law, labour law and industrial relations. The Authority, amongst other matters, assesses the effectiveness of the agreements reached between the parties to ensure the provision of indispensable services.

The main points of the reform introduced by law 83/2000 are as follows.

• Scope of application. The rules regulating the exercise of the right to strike in essential public services now also apply to self-employed workers, professionals or small business owners. In this case, striking a balance between the right to strike and protecting constitutionally guaranteed rights is left to self-regulation codes drawn up by the associations and representative bodies of the categories concerned. These professions and categories of workers include, for example, lawyers (who have conducted several protests in recent years which involved refraining from trial hearings), taxi drivers, petrol-pump attendants, and road haulage contractors.
• Notice and reasons. Workers calling a strike must announce in writing its duration, schedule and form, and the reasons for the collective abstention from work at least 10 days before the strike begins.
• Compulsory conciliation. The collective agreements that establish the indispensable services must also state the obligatory "cooling off" period and conciliation procedures to be activated before a strike is called.
• Indispensable services. The indispensable services specified by agreements, self-regulation codes or the provisional regulations drawn up by the Guarantee Authority must, except in particular cases, amount to at least 50% of the services normally provided, and they may involve the deployment, on average, of not more than one-third of the personnel necessary to furnish the customary level of service in the period of the strike. Should the protection of constitutionally guaranteed rights require the provision of services during particular time periods, these services may neither be affected by strike action nor included in calculation of the 50% limit.
• Minimum"objective"interval. The collective agreements must state the minimum intervals to be guaranteed between one strike and the next affecting the same service or service area, even if called by different trade unions, in order to ensure continuity in the delivery of the essential service and to provide for an "objective" minimum period free of strikes.
• "Unfair"trade union action. Should a strike be spontaneously called off after its announcement, without agreement being reached or intervention by the Guarantee Authority or public authorities to suspend the work stoppage, this will constitute an "unfair" form of industrial action which is in breach of the law. This rule has been included in order to prevent the so-called "announcement effect", whereby a strike announced and then called off at the last minute still causes considerable difficulties for users while not entailing any cost for the strikers in terms of loss of pay.
• Sanctions. Workers' organisations which announce strike action in breach of the law or of collective agreements must pay a fine of not less than ITL 5 million (EUR 2,580) and not more than ITL 50 million (EUR 25,800), varying in line with the number of their members and to the seriousness of the breach and its effects on the essential public service. They may also be excluded from all ongoing negotiations for a period of two months. A fine of the same amount is applied to the managers and legal representatives of the companies providing essential public services when they do not respect the obligations imposed on them by the law or collective agreements, or if they do not duly inform users of the work stoppage announced. The law stipulates the same sanction for associations of self-employed workers, professionals and small business owners which have broken the law or the self-regulation codes. Finally, the law provides an amnesty for all breaches committed before 31 December 1999.
• Role of users' associations. Users' associations are assigned a role in representing and protecting the public's interests with respect to the provision of essential public services.
• Guarantee Authority. First, law 83/2000 has reinforced the Guarantee Authority in organisational terms by increasing its personnel and funding. Second, if the parties fail to reach agreement on indispensable services and on the "cooling off" procedures, or the affected associations of self-employed workers, professionals or small business owners do not define self-regulation codes, the Guarantee Authority will issue a regulation which is binding on the parties. This regulation will cease to have effect only when the Guarantee Authority validates an agreement reached between the parties or a self-regulation code issued by the relevant association. Third, the Guarantee Authority has been given greater autonomy of action, in particular as regards the identification and assessment of action contrary to the law, to agreements between the parties, or to self-regulation codes, as well as the fixing of the relative sanctions or the corrective action that the parties must take.

Social partners' views

The trade unions have expressed satisfaction at the approval of the reform law. Cgil had long argued that a law was necessary to avert the problems caused by the high level of conflict in the public services, and especially in the transport sector. According to Cgil, law 83/2000 is important above all because it largely incorporates the rules set out in the tripartite pact on strike action in the transport sector signed in December 1998 (IT9901240F). Two other important aspects of the reform for Cgil are the extension of the rules to cover self-employed workers and the effort made to make the sanctions system more effective. Cisl has described the reform as a "good" law which introduces numerous innovations, especially as regards sanctions and conciliation procedures. However, Cisl maintains that the conflict regulation system should be reinforced by the introduction of forms of worker participation, so that an efficient system of conflict prevention can be based on workforce involvement.

The Confindustria employers' confederation, by contrast, regards the new rules as essentially ineffectual and counter-productive, because they water down some key aspects of the previous regulations, as with the new ceilings for indispensable services, and do not define unequivocally either the minimum "objective" interval between strikes, nor the role of the Guarantee Authority, which is still halfway between a control body and a conciliation body. Moreover, according to Confindustria, the new law does not sufficiently protect the interests of businesses. The employers' association emphasises, for example, that in the case of a strike called off at the last minute, the law does not provide for the firm to be compensated, although it must still meet its normal operating costs despite the probable decline in users due to the "announcement effect".

Some associations of self-employed workers and professionals, such as lawyers, have harshly criticised their exclusion from the consultations with the government on the new law, arguing that the rules on exercising the right to strike should be "negotiated". In particular, lawyers announced strike action for 5 May 2000 to protest against the new law.

Commentary

Approval of the reform of law 146/1990 has provoked criticisms as regards two issues in particular: the amnesty for all past violations, which is considered to be excessive and unjustified; and the fixing of the "maximum levels of service" in the case of strike action (50% of services and one-third of personnel). According to some experts, this latter provision could, on the one hand, drastically constrain the autonomy both of the parties in defining indispensable services and of the Guarantee Authority itself and, on the other, it could reduce the level of guaranteed service provision during strikes in important sectors like health, where current agreements set higher "minimal guaranteed levels". Finally, all the agreements which fix levels of service higher than the ceilings set by the law would lose their enforceability, thereby nullifying years of work and obliging the parties to find new compromises in order to reach new "valid" agreements.

Although this is to some extent true, it should be pointed out that the new limits set by the law may bring significant improvements in a sector like transport, where constant conflict and repeated strikes have characterised industrial relations in recent years - especially if peak "commuting" times are excluded from calculation of the "maximum levels of service". Another significant feature of the law is that it characterises as "unfair" behaviour situations where a strike is called off for "opportunistic" reasons (in order to reap the benefits of the action without sustaining its costs). Table 1 above shows that the number of days of strike action called off in the transport sector in 1999 amounted to more than one-third of the total. Although it is not possible to quantify the cases of "unfair" behaviour from the figures available, there is no doubt that such levels justify the regulation of this aspect of conflict in essential public services, in order to prevent abuses. Moreover, important innovations like compulsory conciliation and the new system of sanctions intervene in two areas in which the previous regulations had proved to be rather ineffectual, and they will be properly assessed only in the light of future experience.

In this regard, it seems that two main factors may influence the future results of the regulations on the right to strike in essential public services: the role that the Guarantee Authority will be able to assume as it monitors application of the law and corrects its infringement; and the development of an independent system of conciliation which may be sustained by the new rules. It is unlikely that the Guarantee Authority will be able to undertake conciliation directly, except when only interpretation of the law is required. Instead, as far as concrete disputes giving rise to conflict are concerned, reliance on more specialised and "sectoral" structures would seem to be more appropriate. In effect, important indicators of the "success" of the law will possibly be the curbing of opportunistic behaviour, the incisiveness of the Guarantee Authority's action, and the effectiveness of the sanctions system, as well as the development of an independent conflict prevention and conciliation system (Roberto Pedersini, Fondazione Regionale Pietro Seveso).

Source: elaborated on basis of Censis and Istat data.