SCHETTINI AND OTHERS v. ITALY
Inadmissible
Vitaliano Esposito
The applicants are Italian nationals; their names, year of birth and places of residence are set out in the annex. The first applicant is a secondary school teacher and also a member of the directive board of an independent trade union open to employees of public schools, called “School basic committees” (Comitati Base della Scuola - hereinafter referred to as “Cobas”).The other applicants are secondary school teachers who are also members of the said trade union. The applicants are all represented by Mr. Ascanio Amenduni, a lawyer practising in Bari. The respondent Government are represented by Mr Vitaliano Esposito, Co-Agent. The facts of the present case, as submitted by the parties, may be summarised as follows. On 1 December 1994 a decree was issued by the Ministry for Civil Service which set out, pursuant to Article 47 paragraph 2 of Law Decree no. 29 of 3 February 1993, the trade unions which were considered under Article 8 of Presidential Decree no. 395 of 23 August 1988, to be the “most representative” (sindacati maggiormente rappresentativi) of the school compartment and were accordingly admitted to take part in the collective bargaining. Cobas was not amongst these trade unions. On 11 May 1995 the three most representative trade unions and ARAN - the Agency for the representation of public administrations in negotiations (see below) entered into a collective labour agreement (contratto collettivo) on terms of employment and work conditions of public school teachers. Cobas, which, as well as other excluded trade unions, disagreed with the content of the collective agreement, embarked on a number of protest actions such as demonstration, strikes and occupations of schools. They also organised an informal referendum, whereby the majority expressed its discontent with the adopted agreement. Subsequent to these events, on 23 June 1995 a new collective agreement was concluded, which included certain amendments urged by the dissenting trade unions. On 4 August 1995 the Court of Audit endorsed the collective agreement, which thus acquired legal force erga omnes, i.e. in respect of all employees of the compartment, including those whose trade unions were not admitted to the collective bargaining. Framework Law on Civil Servants no. 93 of 29 March 1983 (legge quadro sul pubblico impiego n. 93/83), hereinafter referred to as “the Law”, divided civil servants into eight categories called “compartments”. Each compartment was regulated by its own “compartment collective agreement” (contratto collettivo compartimentale). Section 6 of the Law regulated the system of collective bargaining. The procedure can be summarised as follows. At least eight months prior to the expiry of the collective agreement, negotiations were opened between, on the Government’s side, a governmental delegation set up for each compartment and, on the employees’ side, the most representative trade unions on the national level. Certain other trade unions (the most representative on the compartment level) could be allowed to participate, whereas single employees were excluded from the negotiations. Once an agreement was reached, within thirty days the Council of Ministers would have, after verifying whether the agreement is in accordance with the relevant legislation and with the estimated budget for the following years, to endorse the agreement, which would then be signed by the parties. Within sixty days from the date of the signature, the collective agreement would have to be enacted in the form of a Decree issued by the President of the Republic, after approval by the Council of Ministers. The Presidential Decree was to be endorsed by the Court of Audit (however, in practice, the Court of Audit carried out this task prior to the verification by the Council of Ministers). At this stage the agreement would be valid erga omnes. The collective agreement, in the form of a Presidential Decree, would be published in the Official Gazette and enter into force on the day after its publication. It would be valid for a period of three years from its entry into force. Article 8 of Presidential Decree no. 395 of 23 August 1988 set out the criteria for determining the degree of representation of the trade unions in each compartment. These criteria were: a) the percentage of proxies for paying contributions which the trade union is given by the workers (consistenza associativa); b) the percentage of votes obtained in the elections of different administrative organs; c) the presence and importance of the trade union’s bodies in the compartment. Law Decree no. 29 of 3 February 1993 assimilated civil servants (including employees in public schools) to private employees, thus making ordinary labour law applicable to their employment contracts. Framework collective compartment agreements are to be entered into; an Agency for the representation of public administrations in negotiations (Agenzia per la rappresentanza negoziale delle pubbliche amministrazioni - ARAN) was created and placed under the supervision of the Presidency of the Council of Ministers. Under Article 47, the degree of representation of trade unions was to be determined in an agreement between the President of the Council of Ministers and the trade unions. The relevant Presidential Decree could be appealed to the administrative courts by those trade unions which were considered not to be representative enough, through an expedited procedure. Article 47 was abrogated by Presidential decree No. 316 of 28 July 1995. Decree 396/97 introduced new criteria for determining the real degree of representation of workers in trade unions with a view to selecting the trade unions to be admitted to the collective bargaining. Pursuant to the new Article 47bis of Decree 29/93, workers must be represented by trade unions whose degree of representation in the relevant compartment is at least 5%, which percentage is calculated on the basis of the average between the percentage of proxies for paying contributions the trade union was given by the workers (dato associativo) and the percentage of votes it obtained in the personnel elections (dato elettorale). The new procedure for negotiating collective agreements is as follows. Before commencing the collective bargaining, instructions (atti d’indirizzo) are issued by the Department Sections (comitati di settore) of the Public Administrations. Negotiations are then carried out by the trade unions and the ARAN. Once a draft agreement has been reached, the ARAN submits it to the Department Section of the relevant compartment, which, within five days, has to express its opinion thereon. Upon the Section’s favourable opinion, the following day ARAN submits the calculation of the prospective costs to the Court of Audits which, within fifteen days, must certify its compatibility with the budget. In case the Court of Audits does not issue its decision within the said time-limit, its approval is considered as given. Upon the Court of Audit’s explicit or implicit approval, the President of ARAN signs the agreement, which acquires legal force erga omnes, i.e. in respect of all employees of the compartment, including those whose trade unions were not admitted to the collective bargaining. Upon the Court of Audit’s negative decision, ARAN must try, if possible, to reduce the prospective costs, otherwise the negotiations are reopened. The collective agreement can be challenged before the administrative courts by the trade unions which participated in the negotiations to the extent that it does not correspond to what had been agreed upon. It can also be challenged by the dissenting trade unions insofar as their dissenting opinions have not been taken into consideration. Each employee can appeal to the regional administrative courts against any decision directly affecting him/her, which is taken in the enforcement of the collective agreement.