The trade unions of the #Armate Forces and the #Police Forces with military order, in consideration of the latest "envelopes" detected in the process of study, analysis and approval of the well-known Law on military unionization proposed by the Honorable Emanuela Corda of the M5S, they informed with a letter, the 13 last May, directly the #President of the Republic.
A Mattarella was asked for a direct intervention, or a meeting at the #Quirinale to be able to represent to the Supreme Commander of the Armed Forces that the intention to make a "Constitutional Court ruling", the 120 / is "watered down" and "ineffective". 2018 anemising the expectations of staff representation with the stars.
In front of "silence"Of the Government, all the Union Associations of the Armed Forces and the Police Forces have decided to reiterate their requests by writing to the Minister of Economy, Giovanni #Tria, of Defense, Elisabetta #Trenta and to the President of the Council Giuseppe #Conte.
In fact, however, one news there would be: apparently also the M5S would have thrown in the towel. The rapporteur for the law on unionization, Emanuela Corda, would now ask to meet the various union representatives to "discuss" and "understand" and make the necessary corrections ...!
The Minister of Defense Trenta, on the other hand, has launched an important signal of "inclusion".
During the electoral campaign for the European elections, the minister cited the objectives achieved and those to be achieved without ever mentioning the "absolute" novelty, that is the possibility for the Italian military to be able to express "freely" their thoughts, through the Military Trade Union Associations.
https://www.facebook.com/ElisabettaTrentaM5S/videos/437332553693622/
In preview, PRP Channel, therefore, publishes the letter sent to Ministers Tria and Trenta and Prime Minister Giuseppe #Conte, complete with a “qualified” opinion from a scientific commission composed of “labor lawyers and a constitutionalist”.
JOINT LETTER
SINAFI - National Financiers Syndicate - SIM Aeronautica - SIM Marina - SIM Coast Guard - SIM Guardia di Finanza - LRM - Free Military Representation - SAM - Autonomous Military Union - SIULM - Union of Military Workers - SIM Carabinieri
As is known, the writers OO.SS. military, following the sentence of the Constitutional Court 120 / 2018, have been previously authorized, by the Ministers of reference, to constitute themselves and to operate in defense of their own members in service and in auxiliary.
After about one year from the issuing of the sentence, the activities of the regularly constituted associations are totally paralyzed, in the barracks there is a misinformed staff on this process of democratic innovation of the representative function and there are widespread feelings of fear even talking about the unions.
The circular involutives issued unilaterally and, therefore, not following a joint table with the OO.SS. recognized by the Cabinet of the Ministry of Defense and subsequently by the Economy, show marked profiles of illegitimacy and unconstitutionality and do not satisfy the need to establish the correct and profitable trade union relations that this process would require.
The same, in fact, have claimed the right to want to outline areas and limits of action of the trade unions, strongly violating the prerogatives of the same, in evident contrast with the 87 OIL convention concerning the protection of trade union freedom, with the art . 39 of the Constitution and, not least, with the aforementioned sentence 120 / 2018.
The impossibility of using Administration rooms, in order to illustrate to the staff their own organization and the projects they intend to undertake or to host the territorial structures of the Trade Unions, as well as the obligation to start an interlocution only at central level , constitute a serious compression of union prerogatives.
Similarly, we are strongly disappointed with the basic text of the PDL 875, approved by the Defense Committee of the Chamber of Deputies, which highlights an unjustified, illegitimate and dangerous distortion of the essential nucleus of trade union organization, as outlined by art. 39 of the Constitution, as well as an unreasonable compression of trade union freedom itself, certainly not in line with the provisions of art. 9 of the 87 OIL Convention.
Strengthened by these considerations, moreover supported by an authoritative legal opinion, which we appropriately attach, issued by experts in labor and constitutional law, the writers OO.SS. they ask the Ministers the immediate convening of a joint discussion table on the topics highlighted.
Waiting for a courteous acknowledgment, we take this opportunity to extend my best regards.
LOSS OF THE SCIENTIFIC COMMITTEE
Opinion on ministerial circulars concerning the legal recognition of trade unions for members of the military and military forces.
“This“ Scientific Committee ”expresses some assessments on administrative regulation, also and above all in view of the procedure for regulating the matter, which concerns the recognition of the unions of the military corps and the methods of functioning of the same.
Preliminarily there are strong doubts on this point, as it is believed that this mechanism, although authorized on a "transitional basis" by the Constitutional Court itself with sentence no. 120 of 2018, is not compatible either with international law (Article 2 of the ILO Convention No. 87 of 1949 which recognizes the right to form organizations between workers or employers, without providing for any distinction or authorization), or with the Constitutional Charter ( art. 39); In fact, an administrative regulation, aimed at dictating rules for the constitution and functioning of trade unions, comes into conflict with these legislative sources.
The administrative measures so far issued do not, in fact, conform to the changed international legal framework and to the articles 11 and 14 of the European Convention on Human Rights, as well as in art. 5 of the European Social Charter. In particular, they are in violation of international sources which, while contemplating the possibility of introducing restrictions on the exercise of military trade union rights, recognize the right to establish professional associations and to carry out activities aimed at protecting the collective interest (according to interpretation of the Strasbourg Court in relation to the application areas of Article 11, ECHR).
Beyond the dubious legitimacy of the aforementioned administrative and procedural constraint - which constitutes a unicum in the national legal system - this premise leads us to believe that a legislative solution is indispensable, which, moreover, constitutes the main road traced by the judges of the Council themselves (so p. 18 of sentence no. 120/2018). This indication, in our opinion, cannot be further ignored, since a regulation "for circulars", besides laying founded doubts of constitutionality, also constitutes an objectively "dangerous" precedent for trade union relations, in an innervated legal order on the principle of freedom of trade union association.
In any case the "comparison", in terms of current law, with the administrative regulation can be fruitfully started only by focusing on the indications that emerge from the same sentence of the Constitutional Court n. 120 / 2018.
In fact, with the aforementioned "transitory" mechanism, the judge of the laws created a system that sees the "coexistence" of trade unions authorized by the Ministry of Defense and the current form of collective military representation (the Co.Ce.R.), holder, in the present regulatory framework, of the powers of consultation, identified by Legislative Decree n. 195 of the 1995, waiting for the latter - as the Court wishes - to be superseded by the future union law.
Now, how should it be conveyed, medium tempore, such coexistence? In this respect, without prejudice to the competences of the Co.Ce.R. in the current state of law, it is still necessary to question the functions that are due to the unions in possession of the ministerial authorization, because a failure to reply on this front could make the same authorization of an "empty box" and the administrative procedure to request it, which is complex, an unnecessary waste of energy.
Vice versa - and the Council of State is also questioned on this point with the opinion given on November 14, 2018 - the trade unions must be able to carry out those "minimum" activities typical of each trade union, even if the administrative judges invite them to regulate, even in the meantime. of legislative intervention, "a method of dialogue ... which can give substance to the activities of associations, otherwise provided and regulated only for their constitution and for the limits and impediments to their action". Instead, according to the Council of State, the modalities of dialectical action that safeguard the aims and the raison d'être of the trade union associations must be positively regulated, at least in the minimum form of consultations on matters of interest.
First of all, it appears completely unsuitable to describe the trade union as an "association" (see, in this regard, also the ministerial circulars), as if to equate the latter, an instrument of emancipation and collective protection of workers, to a recreational club or, worse, to a small community, poorly tolerated or poorly digested by a system that neglects the rulings of the Constitutional Court n. 120/2018.
Beyond any linguistic significance - even if language is the mirror, even unconscious, of the mental attitude in this regard - the argument, adopted by the Council of State, if it appears censurable on the level of identification - by way of administrative - of the methods of carrying out trade union activities, however, contains a "hard core" of truth, in the part in which, reasonably, it poses the problem of the activity to be guaranteed in any case to the trade union associations. In fact, the authorized trade union must be able to carry out its trade union activity in the workplace, as protection and assistance for individual military members.
Moreover, the same ministerial circulars indirectly recognize that a "competence" must also be attributed to the union, as can be seen from the indication of excluding, from the statutory purposes, some matters referable to the military order.
The answer, however, can only be found in the significant silence of the Constitutional Court, which, if on the one hand it has identified, for the transitional period and pending the legislator, a series of "limits" - clearly mandatory - which are relevant in terms of of the union constitution, to which the reference to the matters - declined by art. 1478, seventh paragraph, of the military regulations - excluded from the competence of the Co.Ce.R. and also of the union, on the other hand it did not dictate indications on the modalities and scope of the activity of the union, in the obvious assumption that this "space" can only be governed by the latter, in light of the constitutional precept .
In other words, it being understood that for the moment the union is not a negotiating partner (where the negotiating power must be attributed by the law with the overcoming of the negotiation mechanism entrusted to the Co.Ce.R.), nor the recipient of specific union rights ( which, likewise, the law will have to intervene), however, we must deal with art. 39, first paragraph, of the Constitution.
The latter recognizes the power to organize itself independently (on the central and territorial level), with the consequent right to perform an activity of protection of its own members, which can also be expressed in placing the various problems to the attention of the employer relating to the working conditions of the former, within the protection that the union has freely chosen to elect.
Therefore it is completely misleading, and in clear violation of the constitutional precept, the indication, repeatedly referred to in the ministerial circulars, that the recognized trade union associations may be "heard", for matters of interest, at the level of the General Command (see circular n. 001785 of January 31, 2019 of the Cabinet of the Minister of Economy and Finance) and that "the only form of dialogue currently recognized is at the level of the Armed Forces Staff / General Command of the Carabinieri / General Secretariat of Defense (see circular from the Cabinet of the Minister of Defense of 30 April 2019 which moves the seat of the - unspecified - "discussion" on issues with "value of a general nature or of general interest, if referring to a local area") .
This narrowing of the scope of the union's "dialogue" with the military administration also lends itself to three specific critical points.
First of all, the administrative decisions exceed the powers conferred on the public administration, as the sentence of the Constitutional Court dictates to the latter, pursuant to art. 1475, first paragraph, of legislative decree m. 66 of the 2000, rules exclusively for authorization to constitution of trade unions, but not for the performance of their activities.
It follows that, in terms of sources, the administrative indications, oriented in this sense, cannot certainly qualify as "supplementary provisions", not finding a source of legitimacy either in the law or in the Court's judgment and, therefore, they must be considered illegitimate.
Secondly, it pretends not to see that the dialogue conducted at a general level can become effective only if preparatory to the recognition of a bargaining table, at a national level, which does not yet exist.
Thirdly, it is forgotten that if the process of identifying the collective interest, of which the union is a "bearer", arises from the synthesis and combination of individual interests (of individuals); often from the aggregation dynamics of the lower appear instances and problems, which then can be usefully transferred, if necessary, in the general context.
It being understood that it is an "interlocution", which can take place with the military administration in the individual operational units and does not result in a negotiation process, prohibit the possibility of the authorized union from carrying out this "minimal" assistance activity to individuals and, as such, to bring to the attention of the military management the profiles of working conditions, in the places where the greatest criticalities could occur, means affecting the physiological activity, typical of every trade union organization. Ultimately, it means completely emptying the scope of the ruling of the Constitutional Court (and of the supranational sources referred to by it) which, overcoming "the institutionalist vision of the military order", intended to recognize adequate guarantees to the values and trade union interests of personnel military.
If the aforementioned (and illegitimate) guidelines were to be confirmed, this Committee believes that the authorized trade unions should open a serious reflection on the particular effects that the ministerial authorization generates and on the very serious damage that the former also cause to the image of the union, creating in the individual the illusion of finding in the latter a channel of protection which, conversely, is heavily mortified by them.
At this point, the trade union associations can legitimately ask themselves whether it is not appropriate to return the authorization to the granting Authority, trusting in an intervention by the legislator, which, hopefully, is more aware and oriented towards the effective use of trade union rights also in the security sector. "
Rome 22 Maggio 2019
Prof. Pietro Lambertucci - Labor lawyer - Prof. Patrizia Tullini - Labor lawyer - Prof.ssa Avv. Lidia Sgotto Ciabattini - Labor lawyer -Prof. Marco Esposito - Labor lawyer - Prof.ssa Avv. Giuseppina Pensabene Lionti - Labor lawyer - Prof.ssa Lina Del Vecchio - Labor lawyer - Dr. Luca Di Majo - Constitutionalist