It will not come as a surprise that, in the current difficult economic environment in Italy, certain sensitive topics, such as measures on how to promote or save employment relationships, are on everyone’s lips, firing up the already heated discussion amongst unions, Employers’ Associations and the Government on possible reforms of existing employment laws and regulations.
But when the Labor Judge of Rome ruled on June 21, 2012 that an employer can be forced to hire a certain number of employees who are members of a specific trade union, if it is statistically proven that said employer has discriminated against the employees simply on account of their union affiliation, many were impressed (and not necessarily positively) as to how far the Judge had pushed the interpretation of existing laws and the consequences of breach.
The ruling received even greater attention when the spotlight fell on the parties involved, namely FIOM-CGIL, the biggest trade union in Italy on the one side as claimant, and Fabbrica Italia Pomigliano SpA, one of the companies belonging to the FIAT Group, Italy’s biggest industry, on the other as defendant.
The facts brought before the Labor Judge in Rome fall within the never ending tug-of-war between FIAT and FIOM on working conditions applicable to FIAT employees. While other national trade unions active in the metal industrial sector have been more tolerant of FIAT’s new approach to industrial relations and agreed to sign new collective agreements introducing less favourable working conditions as compared to the past (thus hoping to dissuade FIAT from closing Italian factories and moving to less regulated – and less expensive – labor markets), FIOM has stood strong in opposing to such changes.
The inevitable tension triggered by this opposition from FIOM is, according to the ruling of the Labor Judge in Rome, the precise basis of the discrimination by FIAT against FIOM affiliates when hiring new employees or re-hiring previously employed personnel as a measure provided for in certain social plans that the Company benefitted from in Pomigliano D’Arco, near Naples. In fact, according to the allegations of FIOM, that were upheld by the Labor Judge in Rome, FIAT has only been hiring employees who do not belong to FIOM or who have surrendered their affiliation with FIOM, thus breaching existing laws on discrimination. These facts were proven by the Unions with a statistical study, prepared by a Professor Olson of the University of Birmingham, in which it was shown that the probability of not hiring any FIOM affiliates among the 4367 employees, chosen by FIAT after January 1, 2011, was one out of ten million.
After clarifying that a National Trade Union may validly act on behalf of and in the interests of the generality of its affiliates (and not only specifically designated members) against what appears to be a form of collective discrimination, the Labor Judge ruled that the provision of article 4 of Legislative Decree 216/2003, that amended article 15 of the Italian Labor Statute (Law 300/1970), applies in this case, in a way so that any “act or fact that is directed at causing discrimination for political, religious, racial, linguistic, gender, disability, age, sexual orientation or personal belief” must also include acts or facts related to trade union affiliation, in an extensive interpretation of the concept of “personal belief”.
Based on these provisions of the law, the sound statistical evidence provided by FIOM and the absence of any valid evidence from FIAT to prove that no discrimination had taken place, the Labor Judge ruled that, in line with European case law on anti-discrimination provisions, the only way to eliminate the discrimination is to grant the right that had been denied to the victim, in this case the right for FIOM affiliates to be hired by FIAT and, obviously, to continue to maintain their union affiliation, with the right to exercise related union rights. Consequently, the Judge ruled that FIAT must hire, in its factory at Pomigliano D’Arco, 145 employees who belong to FIOM and must maintain, in the future, 8.75% of FIOM members amongst the factory’s workforce.
This surprising ruling may lead to a new era in the interpretation of discrimination for union-related reasons and ways to eliminate its effects. In a recent interview, Sergio Marchionne, MD of FIAT, told the media that, in his opinion, the ruling in comment was the result of “local folklore”. FIAT has in the meantime filed an appeal against this ruling and asked for the suspension of its enforcement pending the appeal case. We can certainly expect more on this topic in the near future!
Source: Baker & McKenzie – GAI
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