May 19, 2020 published in Labour Law
By Salvatore Trifirò, Founder of Trifirò & Partners Law Firm
In the 25th year since the creation of the Workers’ Statute, I had the honour of being called by the First President of the Court of Cassation to report to the Great Chamber of the United Sections of the Supreme Court. I outlined how, based on my professional experience, the Workers’ Statute – in the interpretation given by the Judges of merit and by those of legitimacy – had affected the life and customs of the nation and the company: considering that the working community, that is, where each one must operate – in respect of mutual rights and duties – produces wealth for the whole community. It was my testimony of how the profession of being a lawyer has influenced and continues to influence the creation of Jurisprudential Law and how – President law – constitutes the legal instrument for excellence of the legal profession.
Today, as then, I am honoured to celebrate the 50th anniversary of the establishment of the statute: this time together with valiant colleagues, many of whom have journeyed with me for a significant period of their professional lives. Each of them will give their contribution on specific issues, some of which date back to the distant “difficult” years of application of the statute. I will contribute, as already mentioned, with a quick overview that goes through these 50 years of the statute, from its establishment to the Jobs Act and beyond.
My professional experience – which began in the 1950s at the time of the interconfederal agreements and continued into the 1960s during the time of the Law of 15 July 1966 no. 604 – starts here with a testimony from the 70s with the entry into force of the Workers’ Statute. That new Labour Law which, under the impetus of an impressive jurisprudential production, profoundly innovated trade union and work relations in the company. The work of the lawyer was fundamental in the creation of that President law, an essential part of the discipline of work in the company. It is in fact the lawyer, who submits the concrete case as already qualified by him to the scrutiny of the Magistrate and adjudicated in the various degrees of judgment until the formation of the highest law, with the intervention of the Supreme Court. This will then be used by the lawyer as a guide to the personnel departments for proper disciplinary procedures in the company.
President law has constituted in these 50 years (and will constitute in the years to come) fundamental cornerstones in terms of individual and collective layoffs, redundancies, mobility within and outside the company, right to strike, correctness and good faith clauses and so on. Today reaching remote working and creating the premises for a new labour law where the concept of subordination as traditionally understood is weakened and the conditions for entry are created, in full, of new forms and modalities of advanced and participatory work in the context of companies.
On all the topics mentioned above, here are some concrete testimonials and experiences. They were the epic and overwhelming years between 1970 and 1980 characterised by an incandescent union climate with peaks of terrorist extremism. We went to the hearing and were in the front line: in front of politicized Judges and in front of the extreme left-wing Lawyers of Soccorso Rosso.
It was there that I discussed the first art. 28 of our history. The new penetrating judicial instrument introduced by the statute that allowed the unions to become an active part in the processes and granted the magistrates very extensive powers, allowing them to affect the “rebalancing” function – so they said – of the injustices suffered by the working class. It was, however, an unbalanced rebalancing: to the point of going against the same union in favour of the extreme left.
It was there that I discussed the first art. 18 of the history of the Statute: in front of hundreds of workers shouting with their fists clenched, for the first time an employee (of Sit-Siemens) was physically reinstated, manu military, in the workplace. One morning, in conjunction with a hearing relating to the dismissal of a red terrorist, I found my car still burning. It had been set on fire overnight with that of the Sit-Siemens HR Manager. These were the first attacks by the red terrorists “Brigate Rosse” in northern Italy. From then on it was an escalation. Every morning the newspapers reported chilling news of ambushes and attacks. Personnel managers, journalists and even trade unionists were victims.
The killing of Commissioner Calabresi took place on the morning when the order of a magistrate was executed which ruled the reopening of a closed factory because it was irreparably insolvent. The hearings were held – crowded with members of the CUB (“Comitati Unitari di Base”) – in an atmosphere of intimidation towards the legal so-called “employers”. Finding myself in a hearing physically with “my back against the wall” behind the desk of the magistrate who conducted the hearing, I protested with him. He replied that I had to adapt to the times. The witnesses called by the companies could not appear because they were “stalked” during the night. The chiefs of staff paid with their lives for the attempt to stem vandalism and factory sabotage, guilty of having fired those responsible. Valiant magistrates, though progressive, but deemed not aligned, also paid their attachment to duty with their lives. I myself miraculously escaped two attacks after which Corso di Porta Vittoria, the street in front of the Palazzo di Giustizia (Law Court) of Milan, was covered with posters in which I was portrayed together with the magistrates of the then Court of Appeal of Milan as the top lawyer of the Confindustria (Italian Industrial Federation).
I remember the extreme case in which I acted as lawyer of the appellant company, at the Law Court of Milan. It concerned the dismissal of some employees of a FIAT company belonging to the extremist left who was absent from work to participate in a fire drill in Verbania. On that occasion, the court was invaded by around a thousand people. The police had to intervene in riot gear with the launch of tear gas in the corridors of the building. A Soccorso Rosso lawyer showed up to the bloody hearing. It was the end of the world, the barriers in the courtroom were overwhelmed. The hearing had to be interrupted and I was forced to lock myself up with the magistrates in the Chambers while the guerrillas continued all around us. After a few hours, when the situation moved towards normality, the hearing continued and the court confirmed the legitimacy of the layoffs.
This was the climate of those years of terrorism in which, however, fundamental principles of law were affirmed following assessment actions promoted by me in order to declare the illegitimacy of violent picketing; the illegitimacy of trade union assemblies that masked veritable jobs of companies; the illegitimacy of strikes on continuous cycle systems, adequate to compromise its operation. It was also stated, again as a result of assessment actions, the principle of law that the occpuation of a company by some protesting workers freed the employer from the fulfillment of the remuneration obligation also towards the other non protesting workers. This is because the lack of work performance of the latter was not attributable to the same employer. And again, again with judicial actions to ascertain, the phenomenon of absenteeism was stemmed, justified by compliant medical certificates, with peaks that reached 30% in the days before and after the weekend.
The principle of law was thus affirmed which made dismissals legitimate due to excessive morbidity due to the disorganised effect produced by the alternation between absences and presences. By virtue of those actions, the phenomenon of absenteeism was brought back, at least in the factories in the north, to physiological limits. Again on the basis of assessment actions, the legitimacy of the cancellation of the national collective agreements was recognised, as well as the prevalence of the company contract amendments also in pejus of national contracts; the lack of union representation to the CUB was contested and recognised; verification actions were devised and promoted about the renunciation of individual rights in order to simultaneously reach unchallengeable individual conciliations (hence the genesis of today’s deflationary conciliatory proceedings of the judicial dispute); condemnation actions of the trade unions were promoted for failure to comply with trade union covenants; against corporate RSA and the individual representatives themselves as promoters and participants in anomalous union unrest; companies based on self-employment relationships were created and set up (those of door-to-door sales and those of motorcycle taxis… the ancestors of today’s riders).
Other testimonies could be added to those above but I have already taken advantage of the readers’ patience. There will be space, time and a place to remember other important turning points of this path that seem like yesterday but in reality almost a lifetime ago.
Now we turn the page, a new story begins. That of the time of Covid-19 with the consequential resetting of yesterday’s behaviour and organisational patterns. New scenarios are opening up for companies which, in the future, will become increasingly virtual. We must design and implement a new discipline of the employment relationship. This must be adapted on the one hand, to the needs of the individual company and, on the other hand, to those of the employer. Relationships, which, having overcome the current rigidity of subordination, can be more flexible and profitable for both parties. Where the result and merit will be the measure of fair remuneration sanctioned by article 36 of our Constitution which, due to its universal content, will always be effective. Where human capital, which remains among the fundamental assets for the running of the business, can have its proper enhancement; can enjoy participatory tools; be “collaborated”, but not replaced by artificial intelligence and find its discipline in appropriate specific contracts. Keeping in mind, as I mentioned at the beginning, that the cause (or purpose) of those contracts must be in the interest of the company in which the employer and provider merge in order to produce wealth for the whole community.
