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This article examines the Italian situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.
The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).
A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.
In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Italian responses are set out below (along with the questions asked).
What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?
Italian labour law lays down general principles of equality of treatment and of prohibition of discrimination, while drawing a sharp distinction between them. Whilst the former principle requires that equal situations must receive equal treatment - eg that the same remuneration must be paid for the same work - the latter requires that different situations must be treated equally - ie that any difference, even if very marked, must be ignored.
Article 3 of the Italian Constitution states that: '(1) All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions. (2) It is the duty of the republic to remove all economic and social obstacles that, by limiting the freedom and equality of citizens, prevent full individual development and the participation of all workers in the political, economic, and social organisation of the country.' With regard to equal treatment in employment, Article 36 states that: 'Workers are entitled to remuneration commensurate with the quantity and quality of their work ...' This principle of 'fair pay' can be established only by collective bargaining.
As regards banning discrimination, Italian legislation, in line with EU law, distinguishes between direct and indirect discrimination. Prohibition of direct discrimination requires employers selecting employees or deciding their conditions of employment to ignore differences among them which have no bearing on their ability to perform the work (such as gender, race, and religion). Prohibition of indirect discrimination obliges employers to ignore differences, even if they are relevant to the content of the work, which are not directly but only indirectly connected with discrimination (such as automatic promotion after a certain period in employment, which penalises women who take time off work for maternity leave). Clauses in collective agreements which breach the principle of non-discrimination may be annulled by law.
The position in Italian law as at December 2000 with regard to the grounds of discrimination covered by the framework Directive was as follows.
Whilst Italian law considers length of service to be a legitimate criterion for establishing differences of treatment (when selecting workers for redundancy, for example), this does not apply to age. Article 37 of the Constitution (as well as protecting minors in the workplace) stipulates that 'juvenile labour' must receive 'equal pay for comparable work'. In practice, however, workers' age was until recently an explicit criterion for differentiating their treatment in numerous national sectoral collective agreements, and elimination of this discrimination during the 1970s and 1980s was neither easy nor rapid. In 1995, the Court of Cassation (Corte di Cassazione) annulled (in ruling no. 9287/1995) a clause in a collective agreement for the commerce sector which provided that entitlement to automatic seniority pay increments began on reaching adult age, because this conflicted with Article 37 of the Constitution.
Law 68 of 1999 protects the rights of workers with disabilities and prohibits discrimination against them in the workplace (TN0102201S). Besides promoting access to work for disabled people, through a compulsory employment quota system, this law states that the same standards of legislative and collectively agreed treatment must apply to disabled workers as to other workers.
Religion or belief received the most thorough legal protection from discrimination. The main provision on the matter is Article 15 of the Workers’ Statute (law 300/1970) which prohibits the dismissal of workers and discrimination against them in the allocation of skill grades or jobs, transfers, and disciplinary measures on the grounds of their trade union activity, political or religious affiliation, race, language or gender. Law 125 of 1991 prohibits indirect discrimination on the grounds of race, ethnicity, language, citizenship and religion (although it does not prohibit indirect discrimination with regard to trade union or political affiliation).
This aspect was entirely neglected by Italian law, with no rules prohibiting discrimination against workers because of their sexual orientation.
How has the state responded to the Directive since December 2000 in terms of:
The framework equal treatment was in large part transposed by a legislative decree of 9 July 2003. The decree sets out the principle of equality of treatment and prohibits all forms of discrimination on the grounds of religion, personal conviction, disability, age, and sexual orientation with regard to access to employment, working conditions, access to guidance and vocational training, affiliation to workers’ organisations and activity on their behalf. The decree also provides for the protection of the rights it establishes through the courts, and enshrines a role for the most representative national trade union organisations in bringing cases of alleged discrimination.
The decree does not fully transpose the framework Directive 2000/78/EC on equal treatment. As a consequence, there are some significant differences between the new Italian legal situation and the Directive's provisions. The key differences are as follows:
Because of these omissions, the legislation implementing the Directive is regarded by some commentators as imprecise and partial, and as contradicting EU law at some points (eg on the burden of proof). A further perceived problem relates to the fact that the Italian decree applies to all grounds of discrimination the wider definition of permissible justifications for differences in treatment which the Directive applies only in relation to age. It is feared that this might lead to provisions which are contrary to the equal treatment principle.
In terms of the broader policy response to the Directive and anti-discrimination action programme, this has been very limited. No significant political initiative has been taken by the Italian parliament; no new body has been set up to promote equal treatment; and no public action has been taken to disseminate information on anti-discrimination measures. Social dialogue on these issues appears to have been neglected. To date, the state has not adopted measures to foster dialogue between the social partners aimed at promoting equal treatment, or to monitor practices in workplaces, collective agreements or codes of conduct. Nor have the social partners been encouraged to conclude agreements introducing anti-discrimination rules.
What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?
The social partners, and the trade unions in particular, welcomed the framework Directive. The General Confederation of Italian Workers (Confederazione Generale Italiana del Lavoro, Cgil) and a number of non-governmental organisations have mounted a national campaign over implementation of the Directive, urging the government to transpose it in its entirety. The implementing decree issued on 9 July 2003 has provoked numerous criticisms from the trade unions, notably because the decree is regarded as allowing for more exceptions to the equal treatment principle than does the Directive. One issue of concern for the unions and associations representing gay people is that these exceptions include the possibility of different treatment of gay people in the armed forces.
Transposition of the Directive is still too recent for collective bargaining to have incorporated clauses on equal treatment and anti-discrimination measures based on the legislation. However, given what they perceive as the inadequacy of the implementing decree, some commentators hope that the social partners will endeavour to implement the Directive's provisions in areas that fall within the sphere of collective bargaining. More generally, a number of collective agreements have for some years included provisions on issues such as disability (TN0102201S) and older workers (TN0010201S).
What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?
It is still too early to determine the impact of the framework equal treatment Directive on the industrial relations system and at workplace level, not least because at present there are no local monitoring systems in this area. On the basis of the little information available (which has not been quantified statistically), it seems that various conciliation procedures set out in collective agreements have been used by workers who believe that they have suffered discrimination, with the support of local trade union representatives. (Livio Muratore, Ires Lombardia)