ABOUT THE MINIMUM WAGE... 

The agreement reached in Europe on the minimum wage, which little affects our country, has reawakened the political debate on whether or not a minimum hourly wage threshold should be set by law.

First of all, it is fair to note that the European agreement reached is political in that it basically concerns those countries where collective bargaining coverage is less than 80 percent or where the minimum wage threshold established by domestic legislation is no longer adequate.

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ITALIAN CONTEXT SITUATION

Our country has collective bargaining coverage well above 80 percent, this is enough to say that today Europe has not imposed any corrective action on Italy.

Can this be enough to be able to say that there is no wage problem in Italy? 

Absolutely not, and this is the area for further study. 

First, it is appropriate to distinguish "poor" work from "irregular" work: it is on the first aspect that an intervention of the legislature on the issue of the minimum wage threshold becomes more agreeable. 

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COLLECTIVE BARGAINING

In 2021 in Italy, the number of 992 national collective bargaining agreements has been reached: it is widely believed that if a collective bargaining agreement is not signed by CGIL-CISL-UIL it is automatically defined as "pirated," thus archiving pages of studies, case law, and doctrine on Articles 36 and 39 of the Constitution and the freedom of union association. Barely touching on the subject, let us ask some questions:

• has representativeness been determined by an actual count of union weights (membership cards) at the national or sectoral level? No;
• can we say today with definite and objectively surveyed numbers that, for example, there is no sector in which the UGL union is not as representative as CGIL-CISL-UIL? No.

Far from questioning the history, values and actual representativeness of the aforementioned trade unions, however, the problem remains unresolved. The minimum wage is undoubtedly an encroachment on collective bargaining, and so it is understandable that the SSOs are cool whenever the debate comes back into vogue. But is collective bargaining alone capable of being a curb on "poor labor" today? Does it have the ability to respond quickly and effectively to the wage issue at a time in history when inflation is traveling at 6 percent in the country?

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PRACTICAL EXAMPLES

Let's try some examples by taking the so-called most representative bargaining as a reference.

The CCNL Agriculture (Workers), signed last 23/5/2022 by the OO.SS CGIL-CISL-UIL provides for floricultural workers a gross hourly wage ranging from €7.24 of the common worker, to €8.41 of the Super specialized worker. It should be pointed out that in the agricultural sector we have supplementary bargaining at the territorial level that provides for additional pay elements but with delays in renewals and significant differences in amounts: even, on some occasions the territorial supplementary bargaining has been renewed after more than 30 years(!).

The Cleaning CCNL, signed on 09/07/2021, after a full 8 years since the expiration of the previous renewal, is divided into 8 pay levels: currently the first 5 levels have a gross monthly base pay of less than €1,500.00, with a 1st level with a base pay of €1,154.00 for 173 hours of work per month. If we consider the accruals of 13th and 14th encompassed, the threshold of €9.00 per hour of gross wages is reached at the 4th level provided for skilled workers, while the first 3 levels, including skilled workers, remain below the threshold. 

The entire handicraft sector has just as many critical wage issues: taking the recently renewed engineering sector as an example, we have that out of 8 pay levels, the gross monthly wage of €1,500 is exceeded at the 3rd level (fourth pay band starting from the lower tasks), corresponding to the worker's second degree of specialization. Using the same methodology as in the previous examples, the €9.00 per hour gross wage threshold is reached only at the 4th level provided for skilled laborers, while at the two lower levels (5th and 6th skilled and common personnel, respectively) it remains below the threshold. 

Last but not least in terms of importance is the third sector: it is by no means an exaggeration to say that the Social and Health Cooperation constitutes the first pillar of social assistance in our country and the second if we look at the health care area; collective bargaining in the third sector is varied, with the coexistence of CCNLs signed by autonomous unions and by the OO.SS defined as most representative. 

Taking as a reference the CCNL of Sociomedical Cooperatives signed by the main reference associations of the cooperative world and OO.SS CGIL-CISL-UIL we have that out of 11 pay levels, the gross monthly salary of 1,500 € is exceeded at the sixth pay level (level D1 where we have profiles and tasks of obvious specialization). If we consider the 13th accrual incorporated in the monthly base pay, the threshold of €9.00 per hour of gross salary is reached only at the fifth pay level, corresponding to level C2 where there are specialized personnel such as OSS employed in residential and nonresidential facilities; the first two pay levels provide a monthly base pay of less than €1,300.00 for full-time. 

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MINIMUM WAGE AND THE CRIME OF CAPORALISATION

Establishing a minimum wage threshold is also indispensable to define the effects of criminal legislation on labor exploitation, with cases on the rise in many sectors such as public establishments, logistics, construction, and not only in "traditional" fields as in the case of caporalato in agriculture. The legislature in 2016 with Law 199/2016 amended Article 603 bis of the Penal Code by providing that: 

"constitutes an indication of exploitation the existence of one or more of the following conditions:

1) the repeated payment of wages in a manner manifestly different from the national or territorial collective agreements entered into by the most representative trade unions at the national level, or in any case disproportionate to the quantity and quality of the work performed;

2) the repeated violation of regulations on working hours, rest periods, weekly rest, compulsory leave, vacations;

3) the existence of violations of regulations on safety and hygiene in the workplace;

4) the worker's subjection to degrading working conditions, surveillance methods or housing situations."

Deliberately underlined is the text of the rule that provides for the crime of labor exploitation even if only one of the four conditions of 603 bis C.P. indicated above is met.  In particular, in point 1), the repeated payment of wages in a manner that is manifestly different from the national or territorial collective bargaining agreements entered into by the most representative national trade unions constitutes an indication of exploitation.  In view of the literal tenor of the norm, it cannot escape the fact that one can risk in any sector committing a crime of labor exploitation, with criminal consequences for the employer but also on society, since the case is included in the catalog of crimes under Legislative Decree 231/2001. And, remaining in the theme of this in-depth study, it must make one reflect how, as a result of the norm, it is possible to have a situation of regularity by paying €1,000.00 monthly in agriculture or to a domestic helper, while risking imprisonment from 1 to 6 months by bestowing the same remuneration on a worker in the metalworking or logistics sector.

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CONCLUDING REMARKS

Collective bargaining in our country certainly represents the greatest form of freedom to regulate labor relations. "Good" bargaining, together with existing legislation should be the levee in the fight against "bad" bargaining or also referred to as "pirate" bargaining.  

However, this is not always the case: the legislation is fragmentary and absolutely ineffective; in fact, there are dozens of different definitions of collective bargaining, having almost a different definition for each rule: ranging from "unless otherwise provided for in collective agreements" (thus all of them), to "in accordance with provisions of a contract or agreement or company regulations," to "CCNLs concluded by the comparatively most representative employers' and trade union organizations at the national level in the category" to "most representative at the national level," and so on, with obvious consequences at the judicial level. 

The texts of collective bargaining agreements are increasingly complex, articulated, with a proliferation of indemnities, one-offs, surcharges, paid hours not worked (in some collective bargaining agreements this reaches more than 360 hours per year), regulatory/associative obligations, and memberships in bilateral bodies that are struggling to get off the ground, all the result of compromises in bargaining. Rules, however, that in most cases remain unenforced in small and medium-sized businesses to the detriment of workers' wage status and employers' contractual regularity. 

Perhaps the time has come for SSOs and Employers' Associations to reflect on a much-needed simplification of collective bargaining, paying special attention to labor productivity, the protection of those they represent, and striving not to want to pigeonhole self-employed and parasubordinate work into the rigid rules of subordinate work at all costs, since the logical consequence would be to increase irregular forms of work, which would thus be removed from legality.  

Therefore, "encroachments" can also be accepted if they are necessary to strengthen the protection of the dignity of labor, subordinate but also self-employed, respecting and taking into consideration the Italian entrepreneurial reality, made up of excellence and great manufacturing but also and above all by micro-companies, subcontractors, artisan manufacturing, and the "Gig Economy."

 

Edited by: Marco D'Orsogna Bucci, Chartered Accountant of Labor and Statutory Auditor

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For more information:

marcodorsogna@valoreassociati.it