The Menichetti Studio boasts almost 40 years of experience in the sectors of labour law, social security, trade union law, and commercial distribution contracts. Above all from a regulatory point of view, what has changed during those decades?
Labour law has been and still is going through a phase of considerable evolution. Labour law of the 60s and 70s was constructed on the basis of a few very important laws which marked the change from a phase of case law (characterized by little written material with reference to employment relationships), to the phase of standardization of the most important legal phenomena. I remember the 1966 law on redundancy, but even before that I remember the 1960 law on manpower brokerage (which in the meantime has been repealed by the Biagi Law), the law for protecting trade union rights in enterprises, the so-called Workers Statute of Rights, and the 1971 and 1977 laws on maternity protection, which, already at that point, were transposing a European Community directive, which was one of the first laws on gender discrimination, legislation which was hardly recognized, although it is essentially very effective.
During those same years the groundwork was laid for Social Security rights, although they, however, had already existed as part of important traditional legislation dating back to the solid legislation of 1936, which still today constitutes the structure of the Social Security system.
As a matter of fact, there was, and still is, a 1969 law on the subject of Social Security, as well as the 1965 consolidated text on occupational accidents.
When that season was over, however, during which the legislator gave the impression of having sufficient clarity regarding one's own objectives, whether they were good or bad, then there was a new season. The new one, in my opinion, was absolutely inadequate, and still dictated by a sort of continuous “emergency”, whereby the legislator, instead of marking the times of regulatory development in an organic framework, would start ensuing problems with negative results, both in terms of legislation deprived of a systematic framework (useful for the interpreter for the purpose of solving everyday concrete law application questions), and in terms of the technique for drawing up a regulatory text. Indeed, it is not by chance that fundamental regulatory steps were made for labour law and especially for Social Security law, with the sole exception that, perhaps, in the reform of 1995, some changes were made, whereby dozens of paragraphs were inserted, which were, however, inserted in a non-organic matter in the context of end-of-the-year financial laws.
It's a true disaster for the interpreter, before being so for the citizen, and, for us labour lawyers there is exhausting work to be done when researching the adequate responses for the clients’ need for certainty, which is something obvious in our everyday work.
As a matter of fact, the various enterprises require the ability to operate with sufficient margins of certainty in relation to legitimacy of their actions towards their workers, and in terms of their relationships with the trade unions. But clarity is also required in the congeries of overlapping and sometimes contradictory regulations, which are in turn overlapped by case law which is often deprived of a stature which is sufficient to resolve the more difficult problems interpreted to them. Consequently, it is truly difficult to come up with an adequate and reliable answer. Actually, the fact is that until the end of the 80s, in other words before all the contemporary regulatory innovations became part of the regime, we were able to give answers feeling pretty sure of ourselves. After that it got much more difficult to distinguish with certainty between what was legitimate and what wasn't. This situation even got worse during the 90s, facing even more surplus production of regulations dictated by the need (in many cases, and according to myself, an apparently necessary need), to make our legal system be compatible with that of the European Union.
Here, an emblematic case is indeed the judicial dispute regarding severance payment in agency contracts. This is a very important contract in the realm of those regarding distribution, which our studio has always been an expert in dealing with at court, i.e. as experts in classical labour law. In other words, it is quite frequent that the judicial dispute of the agent is proposed to the labour judge. Indeed, during the 90s there was a very relevant succession of judicial disputes, mostly due to the transposal in Italy of regulations which were not coherent with our legal tradition, since our legal tradition had already been offering protection for the agents. Indeed, in Italy, from the 1930s onwards, one could already count on a consolidated phenomenon of unionization. As far as labour rights are concerned, however, the question of compensation offered by companies for biological damages caused by accidents (despite the existence of obligatory accident insurance and follow-up measures offered by the National Insurance Institute for Industrial Accidents “INAIL”) has been a source of great uncertainty (and to a considerable extent it still is, although there have been efforts made to reorganize the regulations on the subject. However, the aspect which makes the situation particularly sad is when you discover that after 20 years following the explosion of these phenomena, and after numerous regulatory efforts, as well as collective contracting in both cases that I used as examples of difficulty in interpreting, the nucleus of the problems is still unresolved and requires attention, to the point that people are talking about drawing up new regulations on the subject of compensation for biological damages caused by accidents.
According to you, what are the most outstanding phenomena of regulatory uncertainty and the difficulty for the interpreter to face the problems of how to apply labour laws?
To answer this question I will quickly give an example. In the year 2001, after a great deal of discussion in general and talk about the need to introduce greater flexibility in labour law, and, in particular, about the use of fixed-term contracts, a new law was introduced: legislative decree number 368/01. This enlarged the cases in which one could use the stipulation of a short-term contract, and, especially, it basically modified the prospects of a system which, until then, going by a law of 1962, recognized as the normal situation the stipulation of permanent contracts and the short-term one as the exception. Six years later, with the enactment of the Welfare Protocol, they went back, however, to the rule of 1962, more or less cancelling the changes desired by the rationale of 2001!
Based on your experience as a lawyer, how do you see today's situation of labour law disputes?
More specifically, regarding the important ongoing discussion on how suitable the judicial instrument is in facing these phenomena of dispute, and therefore in facing the subject of making new regulations that someone will hold of be necessary to update our legal and labour law system in general, well, I personally believe that it is actually necessary to avoid the drawing up of a great deal of new labour reforms. I think that in the discipline of civil law the current system is the best that the Italian legislator has produced in the entire post-war era. Here we are talking about rules which are well formulated, almost always well interpreted by the judge of legitimacy, and effective in managing to give justice in all cases that actually come to court.
Obviously, like all evolved instruments, although it was introduced into our legal system way back in 1973, it requires highly professional interpreters. Suffice it to say that in this procedure mere postponement of hearings are illegal and, theoretically, all hearings could be valid for the discussion of the case. This means that not only the lawyer, but also the judge, should be ready during all hearings to close the case by ending the dispute, and to do so by applying the principles of oral means and immediacy, which will be distinguishing factors of these court sessions.
How do you evaluate the problem of legal procedures being so slow, and, particularly, of their incapacity to make justice within an adequate amount of time, also in the peculiar sector of labour contracts?
I do not share the reasons that are often given to explain that these procedures do not work, to the extent that this legislature actually hurried up to quickly produce a reform, an action which was, in my opinion, something very dangerous and destabilizing for this delicate subject. The reasons are not valid because the only thing today's legal procedure really requires is to be fixed up a little bit. We definitely do not need an overall reform. If judicial rites were applied in the rigorous manner which distinguished the first phases of their initial enactment on behalf of legal professionals, and particularly on behalf of the judges, i.e. sovereign figures in dictating the amount of time necessary to solve a case, then many anomalies that have been appearing over the years would actually vanish, and they would be something of the past: I believe that it is basically a question of having a higher figure making the choice, it's a question of strategy, because if one desires justice to be made in a great number of cases, such that the volume of our debates become comparable to those of other European countries, the rigorous approach used in our legal system will have to be maximum, with a working regime of preclusion and deadline, which, the legislator indeed introduced back in 1973, trusting the reliable approach and capacity of legal professionals, judges and lawyers. If that actually did take place, I believe that the current bulk of ongoing disputes would be drastically reduced, and this would be the most effective deflationary means that one might imagine. There would be no need for any reforms, and the legislator could then easily carry on to take care of more urgent problems. In my opinion, mutatismutandis, that which basically can be said, also in reference to our legislation regarding safety measures on the job, is that there is no need for new regulation efforts, but perhaps we need to merely rationalize (which is being done) the regulations which currently do exist, which would be simply an action of properly implementing certain controls on adherence to the legal norms.
