3.3.1. Representation and representativeness: the autonomous recognition between the parties
The capability of the actors to represent their members is a core aspect of collective autonomy. The aim of each party in the collective bargaining process is to pursue and satisfy the collective interests of the collectivity of subjects they represent.
Hence, representation is the concept through which a collective subject is entitled to undertake the negotiations with the counterpart. In both systems the main and historically rooted trade unions have a privileged position in conducting negotiations. However, the different degree of trade union pluralism entails a different regulation of access to negotiations.
Both in Italy and in Sweden, the autonomous establishment of industrial relations favoured the autonomous setting of rules on representation. Nevertheless, the plurality of trade unions that characterises the Italian context made the establishment of certain rules necessary, so as to exclude non-representing subjects. In the Swedish context, the exclusionary and contractual basis on which the system was established has naturally provided for a practice of representation centred round the established trade unions. In the Italian context, the trade union representation would – in principle – be regulated by the constitutional provision on the registration of trade unions. However, the non-application of such a rule (see Section 3.2.2) has entailed the recourse to an access to negotiations regulated on the basis of the concept of representativeness. This concept derives from a socio-political rather than legal understanding of industrial relations and emphasises the fact that trade unions are social bodies constantly in need of legitimacy among their members and before the rest of the workers. It has been defined as the capacity of the organisation to unify the behaviours of the workers so that each of them would operate not according to individual choices but rather as a group.213 Representativeness is hence the social institution that ensures that an agreement signed by a union is respected and accepted by its members.
The access to negotiation at the intersectoral and sectoral level is historically based on the mutual recognition between the parties.214 The Italian trade union confederations privileged a strategy based on unanimity rather than on majoritarian principles, so as to negotiate and conclude sectoral collective agreements jointly
213 Giugni (2014) 65.
214 See the historical reconstruction of collective bargaining evolution by Cella & Treu in Cella & Treu (1984) 77.
with a common and therefore stronger position.215 This praxis was interrupted by the separate sectoral agreements concluded in 2009 without the signature of the industry federations affiliated with CGIL. In this scenario the introduction of rules regulating access to sectoral bargaining on the basis of a calculation of representativeness (meaning the actual degree of representation of a union) became necessary. The intersectoral agreements concluded between 2011 and 2014 deal with, among other things, the definition of criteria for the calculation of representativeness on the basis of the average between membership data and electoral data at the company-level elections.216 From a socio-political concept, representativeness has become a selective criterion that aims to identify those unions allowed to have access to negotiations. Although the Italian industrial relations system might benefit from the introduction of rules on the calculation of representativeness in terms of rationality and efficiency, the definition of such rules by an agreement between the main parties de facto excludes from the system the rank and file unions, which are not affiliated with the major confederations.217
In the Swedish context, the very limited trade union pluralism and the definition of trade union given by the Co-determination Act make the question of formal representativeness almost irrelevant.218 The access to negotiations follows the well-established practice of mutual recognition between the parties already achieved through the Basic Agreement. The parties of that agreement are the party representing the two sides of the labour market and the space for other subjects is very narrow and mainly confined to specific sectors or categories of workers.
Despite the general right to negotiate set by the Co-Determination Act, which would permit access to negotiations to all unions, the recognition from the employers’ side and the attitude of the unions operate as a de facto criterion of selection. It is rather rare that an employers’ association would decide to sit and negotiate with the radical and conflictual union SAC, which in turn would find it rather problematic to legitimise the decision to negotiate before its members.
215 Salvo Leonardi, “Gli accordi separati: un vulnus letale per le relazioni industriali” (2010) 3 Quaderni di rassegna sindacale, 355–69, 355.
216 The calculation is limited to companies with more than 15 employees in which a sectoral agreement is applied.
217 Vincenzo Bavaro, “Il principio maggioritario nelle relazioni industriali” (2014) 1 Lavoro e Diritto, 3–22, 18. For an analysis supporting the position of the rank and file unions, see ClashCityWorkers,
“‘Guerra preventiva’ al conflitto. Un’analisi dell’accordo sulla rappresentanza del 31 Maggio”, available at http://www.clashcityworkers.org/documen ti/analisi/1050-analisi-accordo-rappresentanza-31-maggio-guerra-preventiva-al-conflitto.html.
218 See Rönnmar (2009) 5, footnote 20.
3.3.2. Acknowledgement by the legal system: the legal regulation of representation and representativeness
In both systems the trade unions are considered private associations. This status is formally recognised in the Swedish Co-determination Act, whereas it is based on the status of non-recognised associations defined by the civil code in Italy.219 However, in Italy the non-applied constitutional provision (Art. 39 Cost.) sets down rules for trade union recognition and access to negotiations. It states that in order to acquire legal personality and to participate in negotiations, trade unions should be registered in public registers and should have a democratic internal organisation.
The acquisition of legal personality would allow the union to represent unitary the sectoral workforce, proportionally to their members, in order to sign erga omnes collective agreements.220 Although not applied, the presence of this provision prevents the statutory regulation of such issues.221 This obstacle has been circumvented by resorting to the aforementioned concept of representativeness, which is recognised and upheld by statutory provisions. For instance, Art. 8 of Decree 138/2011 empowers the company collective agreements signed by the
‘comparatively most representative union associations at national level’, or by their workplace representative bodies, to derogate from legislation and sectoral collective agreement on a series of matters, such as working time and the use of atypical employment in the company.222 Similarly, Act 81/2015 (and in particular its Art.
51) attributes to the sectoral and company collective agreements signed by the
‘comparatively most representative unions at national level’ and by their RSAs or by the RSUs, the possibility to define rules and standards (also derogating from statutory legislation) for the use of atypical employment contracts within the company. Hence, the statutory recognition of representativeness as the criterion empowering the unions with regulatory competences contains the pitfall of decentralisation, as both the mentioned norms place sectoral collective agreements and company collective agreements on an equal footing.223 Accordingly, the norm seems to also place on an equal footing the union subjects: the norm is ambiguous as to the subject who is entitled to sign a collective agreement – be it the national union or a company representative body – as well as in relation to whether the
219 Art 36 civil code, which states that the internal order and functioning of such associations is regulated by the associative agreements signed by the members.
220 Art 39 Const.
221 An exception is constituted by the regulation of representativeness in the public sector. Here, the accession to national bargaining is regulated by Art 43 of Leg. Decree 165/2001. The legislative regulation of representativeness in the public sector derives from the fact that public sector collective agreements have erga omnes efficacy deriving from law. See Rusciano (2003) 234.
222 Bavaro (2012) 184.
223 Recchia in Ghera & Garofalo (2015) 125.
collective agreement should be signed jointly by the sectoral and company union subject, or whether it can also be signed by just one of them.224
Workplace representation in based on a single-channel in both contexts. This means that the trade unions play a central role. However, in Sweden, workplace representation is almost entirely carried out by the established trade union by virtue of the privileged position it acquires as a consequence of the signature of a collective agreement, whereas in Italy, due to the system’s trade union pluralism, the situation is different. Workplace representation in the Italian system has received both a statutory and an autonomous regulation. The statutory regulation is based on Art.
19 of the Workers’ Statute, which attributes the right to set a ‘plant union representative’ (rappresentanze sindacali aziendali, or RSA) to each union that has signed a collective agreement – of any level – applied in the workplace. However, this formulation requires a brief historical excursus. It is the result of a referendum held in 1995 that modified the previous version of the provision by abrogating both the possibility to form a RSA for the main confederations on the basis of their
‘historical or presumed representativeness’ and the criterion of being part of a national or regional collective agreement applied in the workplace. The original norm was meant to preserve the historical representativeness of the main unions, 225 and at the same time allow for the participation of other unions, who, albeit not affiliated with the main federations, demonstrated their representativeness by participating in national (sectoral) collective bargaining.226 In the current formulation, the representativeness of a union – and therefore access to workplace representation rights – is demonstrated by the signature of whatever collective agreement applied in the company.227 De facto, the norm unbinds the sectoral and company union representativeness, creating the preconditions for defusing the conflict – if not for the emergence of ‘yellow unions’.
The autonomous regulation of workplace representation and representativeness was instead introduced in 1993 by the Joint Protocol concluded between the national trade union confederations and Confindustria. It introduced the rules for creating unitary bodies – ‘unitary union representatives’ (rappresentanze sindacali unitarie, or RSUs) – unifying all the unions active in the workplace affiliated with the national confederations. The parties of the 1993 Protocol committed themselves to adopting this form of workplace representation instead of RSAs (on the unions’
224 Stefania Scarponi, “Quale autonomia per il sistema sindacale italiano?” (2016) 4 Lavoro e Diritto, 963–73, 967.
225 The Constitutional Court deemed such a criterion as guaranteeing that the collective interest be also represented on the basis of conflict. See Corte Cost., 11 marzo 1988, n.344. See Federico Martelloni,
“I tornanti della dialettica tra rappresentanza e conflitto collettivo” in Barbera & Perulli (2014) 245–
55, 248.
226 See Corte Cost., 22 febbraio 1974, n.54; Corte Cost., 11 marzo 1988, n.334; Cort Cost., 18 gennaio 1990, n.30.
227 This effect had been envisioned by the Constitutional Court in the ruling concerning the admissibility of the referendum (Corte Cost., 11 gennaio 1994, n.1).
side) and to recognising RSUs as a counterpart in company industrial relations (on the employers’ side). Originally, one third of these bodies were formed by shop floor stewards appointed by the confederations, while the rest were formed through workplace elections. The 2011 Interconfederal Agreement and the 2014 Single Text eliminated the appointed third, so that now members of RSUs are entirely elected by the employees. However, only the shop stewards of those unions that are part of the intersectoral agreements can run in elections. In sum, workplace representation in Italy is a particularly complicated issue. In a workplace there can be as many RSAs as signatory parties of an applied collective agreement, but only one RSU, which is intended to be the unitary body representing the different unions jointly.
The bodies can even coexist, but the main confederations are committed to only a set RSU. Both bodies enjoy the set of rights for workplace representatives provided by the Workers’ Statute.228
In Sweden, trade unions and employers’ associations are considered legal entities.229 They are entitled to rights and assume obligations, sign contracts binding themselves (and their members), as well as sue and being sued.230 One characteristic of the Swedish system concerns the fact that labour market organisations are entitled to the locus standi in cases relating to the misapplication or violation of clauses of collective agreements, also as regards the individual contracts of its members.231 However, there is no statutory provision or practice concerning trade union recognition or registration, or any other regulation concerning their internal functioning;232 but the labour market parties can be subject to certain obligations as regards the relationship with the individual members. For instance, as a consequence of the centrality of the unions in the Swedish system, the Labour Court recognised
228 The 1993 Joint Protocol provided that the plant union representatives already constituted by the signatory parties were to be substituted by the new unitary union representative. In this sense, the new bodies acquired the set of rights disposed by the Workers’ Statute for the plant union representatives.
See Point 4 of the 23 December 1993 interconfederal agreement. These rights are included in the section concerning ‘trade union activity’ and concern the trade union assembly (Art 20), referendum (Art 21), right to use company’s space (Art 27), right to billposting (Art 25), right to collect contribution (Art 26); the individual ones concern the protection of shop stewards who are entitled to take paid leave (Art 23) and unpaid leave (Art 24) in order to be able to perform the tasks required to a trade union officer. The shop stewards are also protected against unilateral transfer of unit by the employers (Art 22). See Maria Vittoria Ballestrero, “Quarant’anni e li dimostra tutti” (2010) 24 Lavoro e Diritto, 19–30, 21.
229 Schmidt dates the acknowledgement of legal personality to labour market parties approximately to 1910, see Schmidt (1977) 48.
230Adlercreutz & Nyström (2010) 166.
231 On the issue, see Jonas Malmberg (ed), Effective Enforcement of EU Labour Law (Iustus 2003) 153–54.
232 Birgitta Nyström, “The Evolving Structure of Collective Bargaining in Sweden 1990–2003” (2003) Report to the EU Commission, 12.
an obligation not to expel individual members who would be otherwise excluded from employment.233
The Co-determination Act specifies that an employees’ organisation (arbetstagarorganisation) or an employers’ association (arbetsgivarorganisation) are associations of employees or employers that have the task of safeguarding the interests of the employees in relation to the employer, and vice versa.234 The concept of collective interest is thus crucial in identifying a labour market organisation and therefore acknowledging it as a party in collective negotiations.235 The Act marks a distinction between local and central employees’ organisation. Only the local employees’ organisation (lokal arbetstagarorganisation) is defined as an association (sammanslutining) of employees that is a party of collective negotiations at local – workplace – level; whereas a central employees’ organisation (centrala arbetstagarorganisation) is a national union (förbund).236