The rickety system of checks and balances that has influenced the Italian industrial relations, since the entry into force of the Workers’ Statute on 1970, is definitely gone with the approval of the new implementing decrees of the Jobs Act.

The reform covers a number of aspects such as the maternity leave, which has been facilitated making the related facilities more available, as well as the job losses, which has been remedied through the introduction of three social security dampers, called “Naspi”, “Asdi” and “DisColl”.

No later than January 1, 2016, all the entrepreneurs shall replace the cooperation and temporary contracts with the open-ended ones.

This opportunity, designed to meet the progressive electorate’s expectations, has been accompanied by the abolition of certain forms of work contracts such as job sharing and joint venture.

For public administrations instead it is different: the fixed-term contracts shall be regulated from January 1^st, 2017.

The main innovations introduced by this reform include the employment relationship in its entirety, from initiation through resolution.

As repeatedly stated, the “open-ended contract with growing protection” (contratto a tempo indeterminato a tutele crescenti) has been introduced as the main contractual form.

The indefinite nature of this contract, whose adoption is encouraged by the new benefit system, is mitigated by the possibility of withdrawing without the risk of the employee’s reintegration as well and, however, with limited risks.

The two main decrees, promoted by the Government, draw up a news system that could be open to criticism in matters of their constitutionality.

The principle of equality, laid down under the Article 3 of the Italian Constitution, is easy to figure out; it states as follows: 

“All citizens have equal social dignity and are equal before the law, without regard to their sex, race, language, religion, political opinions, personal and social conditions.

It is the duty of the Republic to remove all economic and social obstacles that, by limiting the freedom and the equality of citizens, prevent full individual development and the effective participation of all workers in the political, economic and social organization of the Country”.

With a provision like this, it seems clear that the State has the duty to improve the equality of citizens, ensuring equal starting terms and no discrimination.

Apart from any political expediency’s consideration on the employment system, as called for by the Italian Government, it is clear that the new body of basic rules is going to lead to controversy, as is happening right now.

The “growing protections” institutionalise the so-called “double track” method, i.e. that the fact that two categories of workers have different guarantees for the sole reason that they were recruited before or after the same date. The previous protection, as amended by many reforms on the last short period, will continue to apply to those who worked under an open-ended contract prior to the coming into force of the aforementioned decrees. The new hires will be subject to the current reduced protection.

With this element of differentiation, concerning the measure of the insurance indemnity, rises a new interpretative perspective about the equal positions in the same body of basic rules, which could be problematic about its constitutionality.

The Italian legislator, through continuous changes on labour sector started from 2010, believed that the application of different protection could be justified by the temporal break among “before” and “after” the going into force of the law.

But more worrying is the new system of “growing protections”: this institutionalises the unequal treatment between workers in the same status and position and despite the same law system as well as the application of the same national collective employment contract.

This is because the length of service is considered by the Legislator as the sole criterion for determining the entity of the compensation. We have to ask if this criterion is the right on, in the light of the trial experience and the lack of discretion of the Italian judiciary.

We have also to ask if it is possible to reconcile this with the Italian trend to remove all the normative obstacles by using alternative tools.

These tools, for example the labour supply, are still present although the abolition of the project collaboration contracts as well of the permanent collaboration ones.

Consideration about all the above should be given, in order to prevent further infringements of basic rights.

The new system seems to be objectively unbalanced towards the employer and potentially detrimental to constitutional provisions: the is able to carry out the demotion of the employees and the reintegration at work is excluded even if the judge considers the dismissal as disproportionate to the infringement committed by the employee.

Whenever the employee makes small mistakes, the company could dismiss him without the duty of reintegration at work.

If also in these cases, the maximum protection is the compensatory one, it means that employment relationship may be discretionally terminated and therefore that the new regulation could be found to be unconstitutional.