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By briey skimming through the text of the regulation, a legislative option is immediately
obvious (also accepted with very critical evaluations of a substantial part of Italian emplo-
yment law doctrine: see, e.g., Carinci 2012; Perulli, Speziale 2011; Veneziani 2012; Bar-
bieri, 2012; Ferraro, 2012; Alleva, 2012; Garilli, 2012; Scarpelli, 2012; Lassandari, 2012,
Gottardi, 2012; Carabelli, 2012) for possible exibility of the regulations governing the
individual work relationship carried out by granting the social partners - under certain con-
ditions - (extensive) powers of derogation, even worse, with the instrument of proximity
bargaining, compared with many proles regulated not only by collective bargaining at
national level, but also by the same legislature.
With this in mind, the perplexities of those who emphasise the ambiguity of a system
that, while leaving art. 39 of the Constitution unimplemented, at the point of subjective
efcacy of the collective agreement, it nishes by now ensuring a derogatory effectiveness
to proximity contracts by means of an ordinary law, can be understood. Certainly, for sti-
pulations to be enabled in derogation of which it has been said, the trade unions must still
be “comparatively more nationally or territorially representative”. Therefore, the expression
originally used in art. 8, where it talks about collective agreements signed “by” (and not
“by (plural)”) comparatively more representative associations, without a shadow of a doubt
legitimising the ‘activation’ of the system of exceptions shown above «also at the prero-
gative of a single association» (Romeo, 2014, 881), must now be corrected in the light of
art. 7 of Law No. 99/2013 (conversion of Legislative Decree No. 76/2013) that, by invoking
the power of company-level agreements to structure exceptions to national bargaining,
species the need for the former to be concluded “by workers’ and employers’ trade unions
comparatively more representative on a national level”.
The legislator’s option for a change of collective bargaining at company level suffers
from an emergency logic attributable in the rst place to the desire to stop the haemorrhag-
ing of the employed caused by the crisis, betting on the bargaining instrument in deroga-
tion as a possible means of containing redundancies to cut staff. Moreover, as underlined
by a scholar (Sciarra, 2006), one cannot help but notice how the push toward the decen-
tralisation of bargaining has affected many European industrial relations systems for some
time now: even Italy, with choices recent made, it becomes part of this mainstream. In spite
of this, we share the concerns of those who recently observed how, if, on the one hand, the
uniforming push to standardise globalisation processes ends up shaping negotiating struc-
tures in the direction of an ever-greater decentralisation that respond to market needs, on
the other hand, in the presence of a prolonged crisis, it reveals the risk that a gradual ero-
sion of collective bargaining systems involves (Guarriello, 2012: 355-356).
The question remains of what have the consequences been to date of art. 8 of Law 148,
in the light of a repeatedly afrmed maximum opposition to the trade union organisations to
take advantage of the regulation’s expectations. The lack of an ofcial and complete data-
base of second-level bargaining is not an insignicant obstacle for those who wish to tackle
this subject. However, some elements for a rst evaluation may also be taken from the quali-
quantitative analysis by the CISL (Italian Confederation of Trade Unions) using data from
the Observatory of Second-Level Bargaining (OCSEL). In an initial report (Cisl, 2014) for the
years 2009-2012 (so largely attributable to a period prior to the entry into force of art. 8) it
should be noted that, out of 2402 agreements surveyed (89% of which were company-level
agreements, 10% territorial agreements and 1% sectoral), only 5% are attributable to the
category of agreements with exemptions, regarding exemption matters in a higher percent-
age the organisation of work (71%) and, to follow, working hours (65%), salary (62%) and job
classication (13%). An analysis of the data carried out by the CISL also shows a signicant
slowdown in the period of all innovative contractual practices regarding – for example – wel-
fare, participation, training, organisational innovation and equal opportunities, and looking at
the last topic a scholar has recently pointed out the permanent difculties in Italy of consoli-
dating a stable bargaining model, capable of integrating the legislative policies on the subject
of equal opportunities (Ferrara, 2014: 519).
As has been noticed recently - and as emerges from informal discussions with those
who operate within the framework of industrial relations (trade unionists, labour consultants,
employment law lawyers, representatives of employers’ associations) - the feeling that you
get is that «exceptions are being made, but they are not mentioned» (Imberti, 2014) and that
the bargaining decentralised at the time of the crisis has in a signicant number of cases
taken parallel paths than those provided for in art. 8 to arrive at basically the same results,
i.e. departing not only from the Italian national collective labour contracts, but also from
some relevant legislation (Imberti, 2014: 256), while news has emerged of a few company
contracts concluded explicitly departing from art. 8 (Bavaro, 2012: 159), all, however, relating
to companies of signicant size. It can be lexically more fascinating to talk about “pathways
to stabilisation” or “expansive solidarity” contracts rather than “agreements with exceptions”.
Certainly, the lack of a reference to art. 8 tries to ‘undermine’ the symbolic value, attributable
to the signicant extent of possible exceptions as mentioned above. However, the fact that
this «karst» (Imberti, 2014: 268) decentralised bargaining continues to be largely reduced to
an “exception to the rule”, which is useful to deal with the specic case (company), but not
likely to rise to the rank of a general rule, does not detract from - indeed it accentuates - the
feeling that Italy is now in an obvious process of ‘rebalancing’ the equilibria of collective bar-
gaining, with the company negotiation level denitively given a role of new leadership, which
is more pragmatic and stripped of ideology, but from the results it is still uncertain and with
the risks associated with the emergence of a sort of «trade union localism» (Scarpelli, 2011).
4. Towards new interactions among social partners? - Decentralised bargaining also in-
volves a (possible) level of territorial bargaining, with different models of interaction among
social parties, local Governments and/or other agents operating on a specic territory
(Regalia, 2015; Scarponi, 2015; Zoppoli, 2015), that could play a signicant role in the fu-
[2173-6812 (2016) 34, 25-34]