LABOUR CONTRACT. – In ancient Roman society, where manual services were performed by slaves (operae illiberales), regarded as things, the employment relationship was conceived as a subspecies of the lease of things, while intellectual work, the only kind considered worthy of a free man (operae liberales), was the subject of a different relationship (mandate), presumed to be gratuitous. With the abolition of slavery, the Roman conception of subordinate work, transmitted through the Middle Ages by the conservative force characteristic of legal concepts, found, in modern capitalist society, a new justification in the doctrine of 19th-century economic liberalism, which regards work as any other commodity, subject to the play of supply and demand.
The development of the class struggle, which led to the collapse of the principles of classical economics and steered the state towards forms of regulated economy; the advent of new economic doctrines, including the Christian one, born in the wake of *Rerum Novarum*; and the consequent gradual socio-political elevation of the working class: these are, in summary, the reasons why, in new legislation, the employment relationship has been freed from the framework of the lease and has been established as an autonomous legal institution. Finally, the Constitution of the Italian Republic, in force since 1 January 1948, after having placed work at the foundation of the State (art. 1), broadly understood as “in all its forms and applications” (art. 35), thereby qualifying it as a title of participation in the direction of the state community, has given constitutional relevance to the fundamental principles that must inspire the regulation of the labour contract.
I. INDIVIDUAL LABOUR CONTRACT
The worker undertakes, in exchange for remuneration, to make his labour available to the employer, under the latter’s authority and direction (Civil Code, art. 2094). The subordinate or dependent status of the worker vis-à-vis the employer is the fundamental feature of the relationship and the criterion that distinguishes it from the contract for services (Civil Code, art. 2222). The former concerns the utility inherent in a subordinate work activity, while the latter concerns the result of autonomous work: in the first case, the risk of work—both regarding the result and any harm that may arise to the worker’s person—falls on the employer; in the second case, the risk is borne by the party who has undertaken to complete the work or service.Theoretically, the character of subordination is explained as a logical consequence of the originally indeterminate nature (within the limits of the worker’s contractually established qualification) of the content of the services to be performed; this content will subsequently be determined by the employer (Civil Code, art. 2103), and this implies, on the latter’s part, a power to direct the course of the relationship itself. However, in normal cases (not always: consider domestic work), the element of subordination is more significantly linked to the concept of the enterprise, that is, it expresses the worker’s integration into the enterprise of which the employer is the head (Civil Code, art. 2086), and this is equivalent to saying that, as a rule, the employer is an entrepreneur (Civil Code, art. 2082). In deference to the principle of the subjectivity of labour in the economy, the new Civil Code repeatedly emphasizes the function, in the labour contract, of the worker’s integration into the enterprise rather than the business, which is the object of the former: it does so both by referring to the worker as “collaborator of the entrepreneur” and by defining the business as an organization exclusively of goods and not also of labour (Civil Code, art. 2555). Today, the principle of workers’ collaboration in the management of the business has become a constitutional directive (art. 46 of the Constitution), and is taking more concrete form in “works councils.”
Workers are divided into two categories: employees and labourers, and accordingly the individual labour contract is specified as a contract of employment (private) and a contract for manual labour. Managerial or technical executives, whom the Civil Code appears to group into a third category, are in reality nothing more than qualified employees whose functions are managerial.
The distinguishing criterion between the two categories is provided by art. 1 of the law on private employment (Royal Decree no. 1825 of 13 November 1924, cited in the transitional provisions of the Civil Code, art. 95), and is not so much based on the predominantly intellectual or manual nature of the work activity as on the collaborative character of the employee’s activity, as opposed to the mere manual labour performed by the labourer. This criterion seems contradicted by arts. 2094 of the Civil Code and 46 of the Constitution, already mentioned, where all workers, including labourers, are presented as collaborators of the entrepreneur. In truth, here “collaboration” is understood in the broad and generic sense of cooperation in achieving the economic purpose of the enterprise and, above all, in the function of a socio-political programme to resolve conflicts between capital and labour within the enterprise itself, and not only externally, on the union level; whereas the collaboration referred to in art. 1 of the aforementioned Royal Decree has the specific and proper meaning of collaboration with the entrepreneur in the technical and administrative organization of the enterprise, and therefore the employee is a subject of the organization. The labourer, on the other hand, collaborates within the organized enterprise and is thus an object of the entrepreneurial and managerial activity of the employer and its employees.
As regards the legal regulation of the employment relationship, the most important point to mention is the remuneration or wage of the worker (which, more specifically, takes the name of salary in the case of an employee).
The salary, whose family and welfare function has been affirmed by the new Constitution (arts. 36 and 38), normally consists of a sum of money (nominal wage) and therefore gives rise to a pecuniary obligation, subject to the nominalistic principle (Civil Code, art. 1277), which is however corrected by various measures, such as the so-called sliding scale, designed to adjust wages to the cost of living, i.e., to fluctuations in the purchasing power of money. The law (Civil Code, art. 2099) allows remuneration to be paid, in whole or in part, by means of benefits in kind (real wage), but this must be considered an exceptional form, and in any case not exclusive but supplementary to remuneration in money.
The minimum wage is not subject to negotiation between the individual contracting parties but is previously fixed by collective labour agreements concluded by the professional associations of the category, with binding effect for all members of the associations, in accordance with the principles of representation. However, when such agreements are concluded by a collegial body in which all recognized unions of the category are represented in proportion to their respective membership, the new Constitution (art. 39) attributes to the collective agreements binding force for all members of the category, even those not affiliated to the unions; in this case, the collective labour contract is formally a contract but substantially a source of legal norms.
The collective labour contract is an agreement entered into by an organization of workers, with or without legal personality, and an employer or an organization of employers, with or without legal personality, and which has as its object the regulation of future and uncertain contractual relationships, specifically the employment relationships between the workers represented by the stipulating workers' organization and the individual employer stipulating or the employers represented by the stipulating employers' organization.
Like the trade union organization, the collective labour contract is, from a general perspective, a manifestation of the contemporary tendency of organized groups to substitute their will, which embodies collective interests, for the general will of the State and the particular will of individuals. Hence the well-known phenomenon of the crisis of the law and the contract, considered as the exclusive source, from the perspective of the subjects involved, of the regulation of social relationships; a phenomenon accompanied by the progressive affirmation of new intermediate legal forms, such as normative contracts, among which the collective labour contract is also classified.
From a particular perspective, the collective labour contract aims to ensure that the conditions agreed upon by the individual worker and the individual employer do not fall below a predetermined objective level: so that, in addition to the economic function proper to the normative contract in general—which is to ensure standardization in the contractual regulation of certain relationships—the collective labour contract adds the social function of representing a minimum level of guaranteed conditions for the economically weaker party. Hence the natural tendency of the collective labour contract, considered in its effects, to move beyond the framework of contractual agreements and enter that of objective provisions. The problem of justifying the binding force, and indeed the applicability *erga omnes*, of the collective labour contract, even in the absence of or in opposition to the wishes of the individual parties concerned, whether members or not of the stipulating organizations, has repeatedly drawn the attention of scholars (not only Italian), but the results obtained on the basis of traditional common law have never been convincing. To such an extent that the problem has been resolved, in all industrially and socially advanced countries, through the adoption—especially after the First World War—of specific legislative provisions, which have given the collective labour contract an appropriate legal framework for its economic and social purposes.
Examining the laws adopted by individual countries as a whole, it can be said that (with the exception of Great Britain, where the collective labour contract is a gentlemen's agreement whose enforcement is practically guaranteed by the authority of the trade union organizations) they generally conform to the principle of expressly establishing the *erga omnes* applicability of the collective labour contract (except in cases of more favourable conditions) and of providing a system through which the collective labour contract can, when the expressly established conditions are met, extend its effect to the entire relevant employers' and workers' category. Such extension may occur: either in all cases, by express provision of law (Russia, Labour Code, art. 16; Portugal, Labour Statute [1938], art. 33; Spain, Labour Charter [1938], parts 3rd and 13th; etc.); or case by case, by virtue of an act of the public administration (France, law of 23 Dec. 1946; Netherlands, law of 25 May 1937; Switzerland, federal law of 10 Oct. 1941; etc.), or by an arbitral or conciliation act (Australia, federal law of 22 June 1928; New Zealand, law of 8 June 1936; etc.).
In Italy, the collective labour contract was specifically regulated within the framework of the Fascist corporative system by the law of 3 Apr. 1926, no. 563, and by the various laws that followed II. The collective labour contract could be stipulated only by employers' and workers' associations legally recognized and invested by law with the representation of the entire respective category; or, upon their delegation or in the absence of their agreement, by the relevant corporation or by the Labour Court. The collective labour contract had to contain, under penalty of nullity, the regulation of certain elements of the employment relationship, and was subject to a review of legality and merit through the procedure of deposit and publication. Once published, it had the force of a true category law, and its observance was guaranteed by a threefold system of sanctions: disciplinary, civil, and penal.
The main provisions of the legal framework given to the collective labour contract from 1926 onwards were incorporated into the Civil Code (arts. 2067 et seq.), which entered into force in 1942: among the codified provisions, particular importance attaches to art. 2077, which positively confirms the so-called automatic application of the institution in question, in the sense that the precepts contained therein replace any contrary provisions of individual contracts within the scope of the collective labour contract, unless such provisions are more favourable to the worker.
Allied Military Government ordinances subsequently confirmed (i.e., from 1943 to 1945) the abolition of the Fascist corporative system, already partly implemented after 24 July 1943, with the result that the prerequisites for the above-mentioned legal framework lapsed, and in particular the professional associations invested with legal representation of the entire category. The Legislative Decree of 23 Nov. 1944, no. 369, which confirmed and specified the aforementioned ordinances, nevertheless stipulated that collective labour contracts stipulated by Fascist organizations should continue to have effect as norms until replaced by new collective agreements.
The legal structure of current trade union organizations is, for the time being, that of private-law and de facto associations, which have no legal means to bind non-members and, in a certain sense, even their own members; the observance of collective labour contracts currently agreed upon, which have almost entirely replaced those formed under the Fascist regime, is based solely on considerations of social or political expediency: which makes the adoption of new legislative provisions necessary.
The Italian Constitution, which entered into force on 10 Jan. 1948, in fact contains directives for such legislation: art. 39, after establishing that trade unions acquire legal personality through registration with local or central offices, provides that registered unions «may, represented in a unified manner in proportion to their membership, stipulate collective labour contracts with binding effect for all those belonging to the categories to which the contract refers». It was therefore explicitly intended to affirm the possibility that the collective labour contract may exert its effects as a category norm, becoming, as a proportionate manifestation of the will of the majority, law for the generality.
More precisely, the Constitution comes to admit two forms of collective labor agreements: contracts stipulated by individual registered associations, whose efficacy cannot extend beyond the scope of their members and whose observance is guaranteed by the sanctions generally provided in matters of contractual obligations; and contracts formed by the various registered associations that may exist for the category concerned, whose efficacy extends to all those belonging to the category, and whose observance could be guaranteed by a more rigorous system of sanctions. While the first form of collective labor agreement will stand alongside company regulations and individual contracts as a subjective source, the second (established by virtue of a regulatory function delegated by the State to private-law entities) will stand alongside laws and regulations as an objective source for the regulation of subordinate employment relationships.
From the perspective of the orientations of Christian-inspired social doctrine, the collective labor agreement has always been considered an effective instrument for the pacification of capital and labor and for the protection of the legitimate interests of the working class. Such doctrine can therefore only be favorable to the possible transformation of the collective labor agreement into an objective norm; it intends, however (in opposition to corporatist systems based on authority), to safeguard in every case the principle of trade union freedom and thus to admit (as is admitted by the new Italian Constitution) to the stipulation of collective labor agreements the various professional associations that may exist for a given category.
Luisa Riva Sanseverino