Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 371, Mars 2014

1. 580. The complaint is contained in a communication by the Italian General Confederation of Labour (CGIL) dated 31 May 2012.
2. 581. The Government sent its observations in communications dated 15 October 2012, and 5 August and 18 September 2013.
3. 582. Italy has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 583. In a communication dated 31 May 2012, the CGIL alleges that the Government violated ILO Conventions Nos 87, 98 and 135, as it has not adequately addressed the violation of these conventions by the FIAT Group (which, since 1 January 2011, is FIAT SpA and FIAT Industrial, hereafter “the Group”) against its affiliate, the Federazione Impiegati Operai Metallurgici (FIOM–CGIL). In particular, the CGIL alleges violations of: (1) the right of all workers to join organizations of their own choosing without prejudice, as to date no worker affiliated to the FIOM–CGIL has been hired by the Pomigliano d’Arco plant; (2) to freely choose the union they wish to be represented by; and (3) the right of the FIOM–CGIL to establish plant trade union facilities and have trade union representatives in the workplace, a violation stemming from an interpretation of article 19 of the Statuto dei Lavoratori of 1970 (the Workers’ Statute) aimed at preventing the FIOM–CGIL from having trade union representatives in the company.
2. 584. The CGIL indicates that the FIOM–CGIL is the most representative union in the metalworking industry as it meets all the standards established by Italy’s legislation and jurisprudence: the size of its membership, the number of votes at the company level (rappresentanza sindacale unitaria (RSU)) elections, presence throughout the country, being a party to national industry collective agreements and to agreements with the largest Italian metalworkers’ companies, member of the most representative national trade union confederations, affiliated to international metalworkers’ union federations. The complainant adds that the FIOM–CGIL is considered one of the most representative unions also according to criteria established in the context of European Union social dialogue.
3. 585. The complainant provides information in relation to the FIOM–CGIL’s representativeness in the Group: (1) the FIOM–CGIL has been part of the various bodies and types of trade union representation which developed over time as part of industrial relations in Italy, from shop-level committees (commissioni interne), to trade union industry branches (sezioni aziendali sindacali), workers’ councils (Consigli di Fabbrica) and the RSU; (2) following the entry into force of the Workers’ Statute in 1970, the FIOM–CGIL has always had company union representatives and has always exercised trade union prerogatives afforded by the law as the most representative trade union; and (3) the FIOM–CGIL signed all the company collective agreements the Group signed in the past 40 years; the FIOM–CGIL’s presence as a trade union is underscored by its membership and trade union activities in all the plants of the group.
4. 586. The complainant describes at length the situation that started at the Pomigliano d’Arco (Naples) plant and then extended to the rest of the Group and which can be summarized as follows:
   • (i) Following the announcement by the company in late 2009, of an investment plan for the Italian plants of the Group, known as Fabbrica Italia, a meeting was held on 9 April 2010 between the Group, the national secretariats of the three most representative metalworkers’ unions (FIOM–CGIL, Federazione Italiana Metalmeccanici–Confederazione Italiana Sindacati Lavoratori (FIM–CISL) and Unione Italiana Lavoratori Metalmeccanicie Industria–Unione Italiana del Lavoro (UILM–UIL)) and the company union Federazione Italiana Sindacati Metalmeccanici e Industrie Collegate (FISMIC), as well as the RSU members of the Pomigliano d’Arco (Naples) plant. According to the complainant, while the other trade unions stated their availability to open negotiations with the Group on the basis of the Group’s requests, the FIOM–CGIL asked for negotiations to continue involving all the workers as the company’s demands were extremely penalizing for the workers, although it considered plant investment plans positively. On 27 April 2010, the Group gave unilateral notice of cancellation of all collective agreements still in force at that time as from 1 January 2011, because they considered them incompatible with the Fabbrica Italia plan. The FIOM–CGIL circulated a statement voicing its disagreement with the Group’s demands, especially those referring to working hours and the ensuing risks for workers’ health.
   • (ii) In May 2010, several negotiation meetings between the Group and all the unions took place, where the FIOM–CGIL stated its willingness to negotiate in the framework of the law and of the National Collective Agreement for the metalworkers’ industry on all the aspects of the new organization, for example, the increase in the number of shifts.
   • (iii) On 11 June 2010, the FIOM–CGIL stated that it was not prepared to sign the preliminary agreement presented by the Group as it disagreed with introducing worse conditions by way of derogation of better conditions stated in the National Collective Agreement for the metalworkers’ industry and in the law, with special reference to the disciplinary sanctions the Group could adopt against workers in the event of their joining in strikes on working conditions, thus burdening the individual workers with the responsibilities which befall trade union organizations.
   • (iv) On 15 June 2010, the Group called the trade unions to the negotiating table, with the exception of the FIOM–CGIL, and the preliminary agreement submitted by the Group was signed. The unions that had signed the agreement called a referendum.
   • (v) In the referendum held on 22 June 2010 among the workers of the Pomigliano d’Arco plant, 4,642 workers out of 4,881 took part, 63.3 per cent voted in favour of the preliminary agreement and 1,673 voted against (nearly 37 per cent).
   • (vi) The FIOM–CGIL stated its intention to continue negotiations with the Group to seek an agreement which, however, would not question the National Collective Agreement. The complainant adds that, according to the Italian law, a collective agreement cannot be forcibly implemented on all the workers unless they express their acceptance, whether directly or through the unions they are members of, which meant that the Group could not implement the derogations set by the new company collective agreement to the FIOM–CGIL members.
   • (vii) In October 2010, the Group announced its intention to establish new companies which would replace the existing ones and added that they would not register these new companies with the Italian Association of Metalwork Companies (FEDERMECCANICA), affiliated to the employers’ national organization CONFINDUSTRIA, so as not to be bound by any existing collective agreement signed by the FIOM–CGIL and prevent it, in application of article 19 of the Workers’ Statute, from having trade union representatives in the company.
   • (viii) On 23 December 2010, an agreement was signed for a second plant of the Group (Mirafiori in Turin) where a specific first-level (plant) collective agreement would be put in place by the FIAT Chrysler Joint Venture which would not join the CONFINDUSTRIA. A referendum was also carried out among all the workers and, compared to Pomigliano, a larger percentage (43 per cent) of workers voted against the agreement; if only the shop floor (blue collar) workers who were those mostly affected by the new regulations were taken into account, there would have been a majority against the agreement.
   • (ix) On 29 December 2010, the FIAT Plant (level 1) Agreement was signed and became the only collective agreement applicable to the Group. The agreement was not signed by the FIOM–CGIL.
   • (x) On 16 June 2011, the Group initiated procedures to cease all the old company’s activities and started hiring workers under the new company.
   • (xi) On 28 June 2011, the CGIL, CISL and UIL signed a national agreement with CONFINDUSTRIA.
   • (xii) On 30 June 2011, the Group communicated its decision to leave CONFINDUSTRIA as from 1 January 2012. The main aim of this decision was to avoid implementing in all the plants of the Group the important new inter-confederation agreement.
   • (xiii) On 21 November 2011, the Group announced the cancellation of all collective agreements signed with trade unions from 1 January 2012, arguing that they were not compatible with the company’s plan to relaunch production.
   • (xiv) On 13 December 2011, the Group signed a collective agreement with the FIM–CISL, UILM–UIL, FISMIC and UGL Metalmeccanici trade unions. Such agreement holds for all the companies of the Group and is called a company or level 1 contract. In the section on trade union rights, the agreement states that they come under provisions of Law 300/1970 and that the company trade union representatives shall be recognized according to article 19 of the Law and thus applies only to the trade unions that have signed the FIAT collective agreement.
   • (xv) In January 2012, the CGIL National General Council took a stand against the Group’s choice to wipe out the National Collective Agreement and the history of collective bargaining in the Group and thus unlawfully keeping the most representative union outside the workplace.
5. 587. According to the complainant, both Law 300/1970 and the initiatives taken by the Group infringe the right to collective bargaining. According to article 19 of Law 300/1970, the trade unions that sign the collective agreement which applies to a given productive unit have the right to establish company trade union representatives. In 1995, the original provision of article 19 regarding the right to establish company trade union representatives was amended by a referendum that abolished the requirement to be affiliated to the most representative national trade union confederations. The aim of the amendment to the Law was to enable more unions to have company representatives and not to exclude a very representative trade union (such as the FIOM–CGIL). The complainant alleges that the Group chose to interpret the provision literally, in contrast with the principles of freedom of association enshrined in the Italian Constitution, with the aim of expelling from the company the union representatives of the most representative trade union in the metalwork industry, merely because it had exercised the right to dissent which is the strongest expression of freedom of association upheld by ILO Conventions.
6. 588. The complainant considers that the Group has abused the freedom of collective bargaining, both by choosing which unions it would sign the agreement with, and by discriminating against the FIOM–CGIL by denying its right to have union representatives, subordinating it to the signature of a company agreement.
7. 589. The complainant also denounces the effects of the lack of company trade union representatives, in particular that in all its plants and branches FIOM–CGIL representatives no longer enjoyed adequate protection against the dismissal of its representatives compared to the representatives of other much less representative trade union organizations. Unlike other less representative trade unions, the FIOM–CGIL’s representatives no longer benefit from union leave, cannot convene a meeting or a referendum, or receive information in the event of crisis or reorganization, or be consulted in the event of the company being moved.
8. 590. According to the complainant, the Group is in addition: refusing to withhold FIOM–CGIL union dues from wages; infringing the FIOM–CGIL’s right to take part in the establishment of the European Works Council (EWC) of the two enterprises that constitute the Group.
9. 591. The complainant also denounces the Group’s indirect discrimination through intimidation against FIOM–CGIL members and union shop stewards. Soon after signing the first plant agreement in Pomigliano d’Arco, a number of spontaneous (wildcat) strikes broke out in several plants of the Group, caused by working conditions but fuelled by the climate in the company at the time. In the Melfi plant, with the purpose of intimidation, the Group dismissed three FIOM–CGIL shop stewards: the three had stood up to management in defence of striking workers. In spite of an Italian court ordering the reinstatement of the three shop stewards, the Group refuses to employ them.
10. 592. In the new company Pomigliano d’Arco plant, where all the employees from the old Group’s company are being re-employed, to date the re-employment of 2,100 of the 4,367 former employees does not include one single FIOM–CGIL member. The behaviour of the company led to a drastic reduction of FIOM–CGIL membership: dozens of workers cancelled their membership for fear of discrimination. According to the complainant, by allowing the Group to treat the various trade union organizations differently, exclusively on the basis of the decision to sign a collective agreement or not, the Italian Government is in violation of Article 2 of Convention No. 87, such as the right of a worker to join a trade union of his or her own choosing, subject only to the rules of the organization. The Italian Government is also in violation of Article 2 of Convention No. 135 because so far it has failed to take any measures against the Group’s behaviour, that is against the fact that the Group has prevented the FIOM–CGIL from establishing union representatives according to the law of the land (article 19, Law 300/1970), thus denying the most representative union of the metalwork industry and of the company to exercise its rights and privileges which are granted to far less representative unions (these rights and prerogatives include the right of officials and leaders which establish company union representatives to access the workplace during meetings). Since the Group denies the FIOM–CGIL the right to have company trade union representatives, it also denies FIOM–CGIL officials and leaders the right to enter the Group’s plants.
11. 593. In conclusion, the complainant considers that, in practice, the Italian Government has allowed the Group to violate the union rights of the FIOM–CGIL and of its members, especially the right to have company trade union representatives and to exercise all the rights that the Italian legislation grants to such representatives. Furthermore, in spite of repeated requests by the CGIL, the Government has not clarified how the Italian legislation on company union representatives and collective agreements should be applied, giving rise to many diverse and even contrasting rulings by the courts. This has led to an untenable uncertainty on the rights of the FIOM–CGIL and its members.

B. The Government’s reply

1. 594. In its communication dated 15 October 2012, the Government points out that article 39 of the Italian Constitution recognizes the (positive or negative) freedom of each worker and employer to establish trade unions within the same occupational category or productive sector, as well as the freedom of individuals to choose the trade union that they wish to join, and indeed not to join any trade union; such freedom can be invoked both against the authorities, who shall not intervene in any way in the organization of a trade union, and against employers who, under article 15 of the Workers’ Statute, shall not subordinate the employment, dismissal or transfer of a worker to the condition that they belong or do not belong to a particular trade union, or to the fact that they join or cease to be a member of that trade union.
2. 595. The Government adds that this constitutional protection is given effect through Titles II and III of the Workers’ Statute, which protect the freedom and dignity of workers, and guarantee to the unions, referred to in article 19 of the Statute, the free exercise of freedom of association at the workplace. More specifically, article 19, as amended by Decree of the President of the Republic No. 312 of 28 July 1995, provides that:
   • Enterprise-level trade union representation may be instituted on the workers’ initiative in every production unit:
     • (a) ... ;
     • (b) within the ambit of the trade unions who are signatories to collective agreements applicable within the production unit in question.
   • In enterprises that consist of several production units, trade union representatives may establish coordination bodies.
3. 596. In this connection, the Government emphasizes that the new version of article 19 was adopted following the referendum of 11 June 1995, through which the population expressed its wish to abrogate certain parts of the original text (abrogation of paragraph (a)) and to amend paragraph (b). In practical terms, these modifications took the form of abandoning the principle of “most representative at national level” and removing the provision whereby only confederations were recognized as having the necessary representativity to institute enterprise-level trade union representation; hence, such recognition was extended to trade unions that do not meet this criterion but which are signatories to collective agreements applicable to the production unit.
4. 597. The Government indicates that, in the case under consideration, the current wording of article 19 means that the right to establish enterprise-level trade union representation (and the exercise of the rights derived therefrom) is recognized only for trade unions that have endorsed or acceded to the level 1 enterprise agreement of 13 December 2011 that has applied to the whole of the Group since 1 January 2012, replacing the national collective agreement for the metalworking and mechanical engineering sector applicable to enterprises that are affiliated to CONFINDUSTRIA. The Group has not been affiliated to that body since 1 January 2012. The ban on the FIOM–CGIL instituting enterprise-level trade union representation in the Group’s production units accordingly derives from application of paragraph (b), since this trade union has neither endorsed nor acceded to the level 1 enterprise agreement of 13 December 2011. The Government nonetheless believes it is worth noting that, also under the provisions of article 19, the FIOM–CGIL would not be entitled to take part in elections to, and establishment of, enterprise-level trade union representative bodies even if the Group were still affiliated to CONFINDUSTRIA, because the union has not endorsed, nor acceded to, the national sectoral collective agreement signed by CONFINDUSTRIA and the other trade unions.
5. 598. With regard to the allegation concerning the repeated requests to the Government for clarification with the aim of ensuring proper application of the rules governing trade union representation in enterprises, it should be recalled firstly that the principle of freedom of association set out in the first clause of article 39 of the Constitution prevents the State from interfering in or controlling a labour organization and prohibits any intervention by the authorities in trade union action. The Government also points out that, in June 2012, the labour judge in Modena brought before the Constitutional Court the question of the constitutionality of article 19.1(b) of Act No. 300/1970.
6. 599. The Government states that the Italian legal system has a special provision for protection of the freedom of association (article 28 of Act No. 300/1970, “Suppression of anti-union conduct”). This article states that, when an employer engages in anti-union acts aimed at restricting freedom of association and the performance of trade union activity, the local branches of the national trade unions concerned may seek redress from the labour judge in whose jurisdiction the anti-union acts have been committed. If, following a summary and immediate examination (carried out within two days of the action having been lodged), the judge considers that the freedom of association and trade union rights of the workers have indeed been infringed, they may, through a reasoned and immediately enforceable decision, order the employer to put an end to the disputed acts and their consequences. In this connection it is noted that, as indicated in the complaint, the FIOM–CGIL has initiated numerous proceedings against the Group for anti-union conduct under article 28, but that to date they have all been rejected.
7. 600. The Government points out that, in the context of the social and occupational repercussions of the current conflict, it is well aware of its role and responsibilities and has accordingly spared no effort and stepped up contacts with both the Group and the trade unions.
8. 601. With regard to the FIOM–CGIL’s allegations concerning discriminatory acts that the Group is claimed to have committed against trade union delegates and workers who are members of this trade union, and in particular the refusal to re-employ the latter in the new Pomigliano d’Arco enterprise, it points out that the Group and the trade union organizations FIM–CISL, UILM–UIL, FISMIC and UGL Metalmeccanici nazionali (with the exception of the FIOM–CGIL), as well as the local authorities and the unified trade union representation, signed a Memorandum of Understanding at the Ministry of Labour and Social Policy on 6 July 2011, in which it was agreed that the Group would request application of the Cassa Integrazione Guadagni Straordinaria (CIGS, a wage guarantee fund in case of technical unemployment), on grounds of the emergency situation in the enterprise and the cessation of work at the Pomigliano d’Arco site, for a period of 24 months from 15 July 2011 for the 4,367 people working at the site, who would be “placed on zero hour suspension” (total suspension of work). With regard to the management plan for excess staff, the parties planned to reassign all the personnel from the Pomigliano d’Arco production unit to the company Fabbrica Italia Pomigliano SA within a period of 24 months. This measure was expected to result in reclassification of at least 40 per cent of the staff said to be redundant within the first 12 months of the CIGS (from 15 July 2011 to 14 July 2012). The parties took note of the fact that this result was a sine qua non for moving to the second year of the CIGS. The company also envisaged that the remaining surplus staff would be reclassified during the second 12 months of the CIGS (from 15 July 2012 to 14 July 2013). In view of the commitments made by the Group under the abovementioned agreement, it is unfounded to claim (as the FIOM–CGIL does) that the workers affiliated to that trade union have been discriminated against, since the Group still had the possibility to hire all the 4,367 employees of the former Pomigliano d’Arco plant by 14 July 2013.
9. 602. In a communication dated 5 August 2013, the Government provided a copy of the Constitutional Court’s Decision No. 231/2013 of 3 July 2013 concerning the constitutionality of article 19.1(b) of the Workers’ Statute. This decision states that article 19.1(b) of the Workers’ Statute is unconstitutional in that it does not provide for the possibility of establishing enterprise-level trade union representation for those trade unions that have not signed a collective agreement applicable to the production unit but which have, on the other hand, taken part in negotiating such an agreement as representatives of the workers in that enterprise. The Government points out in its communication that, in view of the sensitivity of the issue and the specific nature of the Court’s decision, it reserves the option to assess the appropriateness of legislative action with regard to enterprise-level trade union representation.
10. 603. In a communication dated 18 September 2013, the Government forwarded the response by the Group to the allegations of the complainant organization. The Group points out firstly that Italian legislation (the Workers’ Statute) provides for two distinct levels of protection with regard to freedom of association: first, articles 14, 15, 16, 26 and 28, which recognize the right of every worker to establish and join trade union associations and to engage in trade union advocacy within the enterprise and which provide for effective protection against anti-union discrimination, measures whose content alone would allow compliance with the requirements of ILO Convention No. 135; and second, articles 19–27 of the Statute which, according to the strict interpretation of article 19, assign a series of additional rights solely to those trade union organizations that are party to a collective agreement applicable in the enterprise. The Group considers that this distinction is in line with the principle, recognized by the Committee on Freedom of Association, whereby the most representative organizations may enjoy certain limited advantages.
11. 604. The Group next recalls that the current wording of article 19 of the Workers’ Statute, put to a referendum in 1995, was approved by a large majority of citizens. The Group adds that the new criterion for granting second-level trade union rights is consistent with the content of those rights (to organize assemblies, to take union-related leave of absence, to set up a union notice board, etc.), which promote management of the collective agreement. Indeed, the competent bodies are reported to have declared the provision to be constitutional on several occasions in the past.
12. 605. As for the Constitutional Court’s decision of 3 July 2013, while it declared article 19.1(b) of the Statute to be non-constitutional by deciding that, on the basis of the Constitution, enterprise-level trade union representation had to be open to all those unions that had taken part in negotiating the agreement, it also confirmed that the legislative provision at issue could not have given rise to a different interpretation than the one followed by the Group till then, namely that the rights of trade union representation within an enterprise could be recognized only for those organizations that had signed a collective agreement applicable to a production unit; this was no longer the case for the FIOM–CGIL, since it had signed neither the enterprise-level agreements nor the most recent national collective agreement applicable to the sector in question.
13. 606. In addition, the Group points out that, by withdrawing from CONFINDUSTRIA, the national employers’ confederation, it had not sought to eject the FIOM–CGIL from the enterprise but had simply exercised its freedom of negotiation. As for the denial of trade union representation to the FIOM–CGIL in the enterprise, that had been based purely and simply on strict application of article 19 of the Workers’ Statute, as interpreted by jurisprudence. The Group clarified lastly that, following the abovementioned decision by the Constitutional Court, it had unilaterally decided to grant to the FIOM–CGIL the possibility of enterprise-level trade union representation.
14. 607. The Group adds that its policy on collective bargaining fully complies with the legislation in force and is entirely legitimate, as shown not only by the agreements concluded with all the representative trade union organizations within the Group, except for the FIOM–CGIL, but also by the support given by a clear majority of workers when they were consulted in a referendum, as was done in the Pomigliano d’Arco and Grugliasco enterprises. The Group clarifies, lastly, that the FIOM–CGIL is not currently the most representative trade union organization in the Group, and that only a small minority of workers have taken part in the strikes it has recently organized.
15. 608. As for the allegations that the FIOM–CGIL was excluded from the process of establishing the European Works Council, the Group points out that by a decision of 20 February 2013 the Turin tribunal considered that no anti-union behaviour could be held against the Group and that the FIOM–CGIL had no right, at the material time, to be part of the Special Negotiating Body preparing to set up the European Works Council.
16. 609. Concerning the interruption of deductions of union dues payable to the FIOM–CGIL, the Group indicates that since 1995 and the referendum that led to reform of article 26 of the Workers’ Statute, there is no legal obligation requiring employers to deduct union dues. The Group affirms that collective agreements may have reintroduced this requirement but that, in such a case, owing to the fact that those agreements have the nature of a private contract, the deduction requirement applies only to workers who are members of a trade union organization that is a signatory to the agreement. The Group adds that it complies with the various court decisions ordering it to make such deductions for the FIOM–CGIL at some of its plants.
17. 610. With regard to the allegations of discrimination against members of the FIOM–CGIL during the process of re-employing workers from the Pomigliano d’Arco unit, the Group indicates that, while the Court of Appeal in Rome upheld the FIOM–CGIL’s request in its judgment of 12 October 2012, that judgment has been the subject of an appeal in cassation. Furthermore, the accusations of anti-union discrimination are now outdated, since all the workers from the enterprise have been integrated in a new structure (FGA) and are covered by a scheme of technical unemployment (CIGS) and rotation work that is regarded as non discriminatory by the Rome tribunal.
18. 611. Finally, the Group denies the accusations of generalized discriminatory practices against the representatives and members of the FIOM–CGIL. It also denies the existence of disciplinary sanctions for taking part in strikes concerning working conditions. With regard to the dismissal of FIOM–CGIL trade union leaders at the Melfi plant for obstructing production during a strike, the Group notes that, while the Court of Cassation in its judgment of 2 August 2013 ordered the reinstatement of the three delegates on the grounds of unjustified dismissal, the Court also confirmed the existence of the acts that the three employees are alleged to have carried out.

C. The Committee’s conclusions

1. 612. The Committee recalls that, in the context of the denunciation by the Fiat Group of the collective agreements to which it was bound and the conclusion of new agreements that have not been signed by the FIOM–CGIL, the present complaint concerns firstly the exclusion of that organization from the enjoyment of a series of trade union rights, and in particular the right to have representatives at the level of the enterprise (a right reserved to organizations that are signatories of agreements in force in the Group), and secondly allegations of acts of anti-union discrimination, of which the FIOM–CGIL and its members within the abovementioned Group claim to be victims.
2. 613. The Committee notes that the complainant organization alleges that: the Group has violated Conventions Nos 87, 98 and 135 by denying the FIOM–CGIL, a particularly representative trade union in the sector and the Group, the benefit of a series of trade union rights, including in particular the right to have plant-level union representatives; based on a strict interpretation of Italian legislation, these rights have been reserved solely for organizations that are signatories of agreements in force in the Group; the Group has practised a policy of anti-union discrimination against the FIOM–CGIL and its members, including suspending the deduction of union dues for FIOM–CGIL members alone, excluding a representative of the FIOM–CGIL from the European Works Council, discrimination in recruitment and unjustified dismissals of trade union leaders; and the Government has taken no steps to end the violations denounced, and in particular has taken no initiatives to clarify the interpretation of Italian legislation and avoid the benefit of trade union rights, including that of appointing enterprise-level trade union representatives, from being reserved solely for organizations that are signatories of collective agreements applicable to the enterprise.
3. 614. The Committee notes the initial comments by the Government, in which it indicates that: by virtue of article 19 of the Workers’ Statute, as amended by the 1995 referendum, only trade unions that are signatories of collective agreements applicable to the production unit are entitled to establish enterprise-level trade union representation and to exercise the rights deriving therefrom, which at the time of the complaint was not the case for the FIOM–CGIL within the Group; by virtue of the principle of non-interference by the public authorities in matters of freedom of association, it was not up to the Government to clarify the rules implementing article 19 of the Statute; concerning the supposed anti-union policy of the Group, article 28 of the Workers’ Statute provides for a particularly effective judicial procedure for “Suppression of anti-union conduct”; all the proceedings brought by the FIOM–CGIL against the Group on the basis of this article have thus far failed; and concerning the allegations of discriminatory non-rehiring of workers affiliated to the FIOM–CGIL within the Pomigliano enterprise, the Group had a period until 14 July 2013 to rehire all the employees of the former company who had thus far been technically unemployed. Before that date, it was therefore premature to allege any discrimination in recruitment.
4. 615. The Committee also takes note of the supplementary observations of the Government, in which it informs the Committee of the Constitutional Court’s Decision No. 231/2013 of 3 July 2013 declaring article 19.1(b) of the Workers’ Statute to be unconstitutional.
5. 616. Lastly, the Committee takes note of the observations of the Group, as conveyed by the Government, indicating that: according to the strict interpretation of article 19, under which a series of rights are granted exclusively to trade union organizations that are signatories of collective agreements applicable in the enterprise, articles 19–27 of the Workers’ Statute are in line with the principle, recognized by the Committee, whereby the most representative organizations may enjoy certain limited advantages; the suppression of the FIOM–CGIL’s trade union representation in the enterprise does not reflect anti-union policy but stems solely from strict application of article 19 of the Statute, as interpreted by jurisprudence; since the 1995 reform of article 26 of the Workers’ Statute, there is no general legal requirement for employers to deduct union dues from salaries; as recognized by the Turin tribunal, the FIOM–CGIL had no right, at the material time, to be represented in the process of establishment of the European Works Council; in line with the Constitutional Court’s decision of 3 July 2013, the Group recognizes the FIOM–CGIL’s enterprise-level trade union representation; and the Group considers the various allegations of anti-union acts and discrimination in the complaint to be unfounded.
6. 617. The Committee observes that the complainant organization, the Group and the Government agree that the fact of non-recognition of the FIOM–CGIL’s right to have trade union representatives within the Group’s enterprises stems from a strict application of article 19.1(b) of the Workers’ Statute, which provides that trade unions that are signatories of collective agreements applicable to the production unit may establish enterprise-level trade union representation. In this connection, the Committee takes note of the Constitutional Court’s decision of 3 July 2013, which declares the abovementioned provision to be unconstitutional inasmuch as it does not allow for the possibility of establishment of enterprise-level union representation for those trade unions that have not signed a collective agreement applicable to the production unit but which have instead taken part in negotiating such an agreement as representatives of the enterprise’s workers.
7. 618. The Committee takes particular note of the arguments of the Constitutional Court that: article 19.1(b) of the Workers’ Statute does not carry out its function of selection of trade unions on the basis of their representativeness but could, on the contrary, become a mechanism for excluding organizations that enjoy significant representativeness within the enterprise; making the benefit of trade union rights depend exclusively on a position of agreeing with an employer undermines, from the point of view of collective bargaining, the pluralism and trade unions’ freedom of action that are enshrined in article 39 of the Constitution of the Republic of Italy; and the provision in question introduces an unjustified sanction on disagreement, which undeniably impinges on the trade union’s freedom to choose the most appropriate forms for defending its members’ interests.
8. 619. In this regard, while it has always accepted that the fact of recognizing the possibility of trade union pluralism does not preclude granting certain rights and advantages to the most representative organizations, provided the determination of the most representative organization is based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse, and the distinction should generally be limited to the recognition of certain preferential rights, for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 354], the Committee wishes to point out that the legislative provision at issue in this case does not come within the scope of the abovementioned principle, owing to the fact that the criterion for recognition of rights which it establishes is based not on the greater or lesser representativeness of the trade unions but on the position they adopt and the results they achieve at the negotiating table. In this light, the Committee considers that the Constitutional Court’s decision, of 3 July 2013, fosters compliance with ILO Conventions and principles concerning freedom of association and collective bargaining, inasmuch as making the possibility of having enterprise-level trade union representation subordinate to reaching agreement with an employer on the content of a collective agreement could restrict trade union organizations’ freedom of action and freedom of collective bargaining, enshrined respectively in Article 3 of Convention No. 87 and Article 4 of Convention No. 98. On this subject, the Committee notes with satisfaction that, following the judgment by the Constitutional Court, the Group now recognizes enterprise-level trade union representation by the FIOM–CGIL.
9. 620. The Committee notes however that, as the Constitutional Court itself has stated, its decision of 3 July 2013 has neither the intention nor the effect of defining in detail the conditions for assigning the strengthened trade union rights provided for under the Workers’ Statute. In this connection, the Committee notes that the Government has stated, in view of the sensitivity of the issue and the specific nature of the Court’s decision, that it reserves the possibility to assess the appropriateness of legislative measures with regard to enterprise-level trade union representation. The Committee requests the Government to act quickly in the matter and to keep it informed of the initiatives taken, in consultation with the social partners, to draw any legislative consequences from the Consitutional Court’s decision concerning the definition of criteria for assigning the strengthened trade union rights recognized by article 19 of the Workers’ Statute, in line with the ILO’s Conventions and principles concerning freedom of association.
10. 621. With regard to suspension of the deduction of trade union dues only for members of the FIOM–CGIL, the Committee notes the observations by the Group, namely that the collective agreement providing for trade union dues to be deducted only for employees who request it, is legally applicable only to the trade union organizations that are signatories of the agreement and their members, but that the Group respects the various court decisions whereby it has been ordered to make such deductions on behalf of the FIOM–CGIL in some of its enterprises. On that subject, the Committee notes that several Italian tribunals have in fact ordered that deduction of union dues for the FIOM–CGIL be maintained, having taken the view that their suspension constituted anti-union behaviour that would, in particular, violate the workers’ right to choose freely the trade union to which they decide to pay their dues. In this regard, the Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest, op. cit., para. 475]. Observing that the deduction of trade union dues of affiliated workers in favour of the various representative trade unions was discontinued with regard to the FIOM–CGIL after its refusal to sign the collective agreement, the Committee, in view of the merits of the case and taking into account the court decisions already rendered ordering the resumption of such deductions in several enterprises of the Group, requests the Government to bring together the parties concerned, in order to ensure that all the employees of the Group affiliated to the FIOM–CGIL may continue to have their union dues deducted from their salaries and paid to the said trade union organization.
11. 622. Concerning the allegations of unjustified exclusion of the FIOM–CGIL from the process of establishing the European Works Council, the Committee takes note of the Group’s indications that the Turin tribunal had not found anti-union behaviour to have taken place in that regard. The Committee requests to be kept informed of any other judicial decision that may be taken on the subject.
12. 623. With regard to the allegations of discrimination against members of the FIOM–CGIL in the process of re-employment of workers from the Pomigliano d’Arco unit, the Committee takes note of the Rome appeal court’s judgment of 9 October 2012, in which it considered that members of the FIOM–CGIL had been discriminated against in hiring and ordered the Group to re-employ 126 workers who were members of the FIOM–CGIL within a period of six months. The Committee also takes note of the Group’s observations that the appeal court’s decision is the subject of a further appeal in cassation, and that all the workers in the establishment have now been incorporated in the new structure (FGA) and are all subject to arrangements for technical unemployment (CIGS) and employment by rotation that are regarded as non-discriminatory by the Rome tribunal. The Committee requests to be kept informed of the various judicial developments in this case.
13. 624. Concerning the allegations regarding the dismissal of three FIOM–CGIL delegates from the Melfi establishment, the Committee takes note of the judgment of the Court of Cassation dated 2 August 2013, which confirms the unjustified nature of the dismissals and definitively orders the reinstatement of the three trade union delegates. The Committee requests the Government to indicate whether the three trade union delegates have actually been reinstated.
14. 625. Lastly, the Committee notes that the present case contains a large number of disputes concerning allegations of anti-union discrimination of which the FIOM–CGIL and its members are claimed to be victims. It also notes the existence of a series of judicial decisions by various courts recognizing the existence, in some of these disputes, of anti-union practices in the Group under consideration. While noting that, in some cases, the final judicial decisions have not yet been rendered, the Committee considers it necessary to recall that anti-union discrimination constitutes one of the most serious violations of the freedom of association, since it may compromise the very existence of trade unions [see Digest, op. cit., para. 769]. In this light, the Committee requests the Government not only to keep it informed of the outstanding judicial decisions but also to take the necessary initiatives, such as facilitating dialogue between the Group and the complainant organization, to help prevent any new conflicts of a similar nature from arising within the Group under consideration. The Committee requests the Government to keep it informed of this matter.