ILO decent work agenda and social enterprises by World Co-operative Monitor

Laurea Magistrale in European and International Studies â&#x20AC;&#x201C; Studi Europei e Internazionali

The ILO Decent Work Agenda and Social Enterprises

Relatore: Matteo Borzaga

Laureando: Alex Rigotti

anno accademico 2011-2012

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Table of Contents 1. The Decent Work Agenda ............................................................5 History of the Decent Work Agenda ........................................................ 6 Decent work .......................................................................................... 26 Decent work Agenda ............................................................................. 28

2. The DWA at the Italian national level ........................................ 37 Work Actually ....................................................................................... 37 Strategic objective 1) Promoting Employment ....................................................... 38 Strategic objective 2) Social Protection ................................................................... 39 Strategic objective 3) Social Dialogue ...................................................................... 41 Strategic objective 4) Rights at Work ...................................................................... 42 The decent Italian labour law ................................................................ 44 Strategic objective 1) Promoting Employment ....................................................... 47 Strategic objective 2) Social Protection ................................................................... 49 Strategic objective 3) Social Dialogue ..................................................................... 53 Strategic objective 4) Rights at Work ...................................................................... 56

3. The DWA in practice: Social enterprises .................................... 67 Social enterprise: a definition ............................................................... 68 Conjugating Decent Work ..................................................................... 72 Social enterprises in Italy ...................................................................... 76 Social enterprises in Italian law ............................................................ 78 Case Study: InConcerto ......................................................................... 81

Bibliography ................................................................................... 87 Books, articles and papers .................................................................... 87 International Labour Organization documents ..................................... 93

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1. The Decent Work Agenda International labour law is a wide and interesting field1 and probably the one of most immediate applicability between international law’s matters. Labour was indeed the first international law and human rights topic2, and it is considered one of the fundamental subjects of it3. The International Labour Organization calls the basic content of international labour law Decent work4. This relatively new expression for the ILO’s traditional commitment in social justice contains some new relevant elements5. In his Report submitted to the 87th International Labour Conference, the Director-general Juan Somavia proposed that the ILO should set as its primary goal the promotion of “opportunities for women and men to obtain decent and productive work in condition of freedom, equity, security and human dignity6”. This statement, substantially recalling the ideas founding the Declaration itself, would have brought in the space of ten years to a wide range transformation in the entire organization, first of all in its main purpose: decent work started, from then on, explicitly representing “the converging focus” of the organization’s “four strategic objectives”, as “an overall goal which contains the priorities of all the ILO’s constituents – employers, workers and governments – and so forms a basis for building consensus7”. That has been described as the first express proclaim of a “human rights” orientation

SWEPSTON, L. Closing the Gap between International Law and US Labour Law, p. 54.

SWEPSTON, L., ibid. Swepston cites the campaign in the 1830s to eliminate slavery.

SWEPSTON, L., ibid.

6 ILO Decent Work, Report of the Director General to the 87th ILC session, Director-general Somavia was elected on March 23th, 1998 and that was his first report to the ILC. 7 R ODGERS ,

G. The ILO and the quest for social justice, 1919-2009, p. 224.

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for the ILO8. The route taken in 1999 brought, ten years later, to adoption of the ILO Declaration on Social Justice for a fair Globalization and the launch of a formal Decent Work Campaign9.

History of the Decent Work Agenda The following paragraphs are built around the assumption that a knowledge of the history, purpose and goals of the ILO enables one to connect the statement of fundamental principles and rights at work to the action-oriented program of Decent Work and to see them as parts of a unified whole within an overarching vision of achieving social justice10. Many scholars use to organize history of ILO on an international politics basis considering, the evolution of the organization as a mere consequence of global balances, especially within the UN and mainstream economic theories11. Here the objective is otherwise to find the roots of the concept of decent work by identifying those passages that foreshadowed the actual approach, in order to demonstrate coherence of the process leading to definition of an integrated strategy within the organization. To obtain a fluid narration, the scheme will be enriched following the route traced by Trebilcock12 in her contribution to the ILO Century Project in 2009. Following the author, since the beginning of its days the ILO has ever identified its main focus with social justice and in 1999

8 BELLACE,

J. R. Achieving Social Justice: The Nexus Between the ILO’s Fundamental Rights and Decent Work, in Employee Rights and Employment Policy Journal, Chicago-Kent College of Law and Workplace fairness, Chicago. 9

Global Campaign “Decent Work for All”, ILO.org cited by BELLACE, J. R. supra note 7.

BELLACE, J. R. supra note 7

see for example Rodgers and his four periods named early years, post-war decades, international social agenda and decent work agenda, R ODGERS , G. supra note 6. 11

TREBILCOCK, A. From social justice to decent work: An overview of the ILO’s guiding ideals 1919-2008, p.2. 12

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the emphasis shifted to decent work13. In practice, the author continues, these notions that are very different at first glance have been used to encompass a similar range of concerns14. For these reasons, the focus of this review will be on Decent Work, trying to define some decent-work-milestones, those documents marking the most important steps of the evolution of the conceptual framework of decent work agenda. The context in which these documents viewed the light will be described to reconstruct transitions within them. These decent-work-milestones are represented by the four main statements of principles and policies, the ILO Constitution (1919), the Declaration of Philadelphia (1944), the Declaration on Fundamental Principles and Rights at work (1998) and the Declaration on Social Justice for a Fair Globalization (2008), some significant intermediate steps are represented by the Report to the 87th ILC by the Director General (1999), the Global Employment Agenda (2003), and the Global Jobs Pact (2009). ILO Constitution – 1919. On 28th June 1919 the high contracting parties of the Paris Peace Conference adopted the ILO Constitution as the part XIII of the Treaty of Versailles. The preamble to section I Labour, later officially renamed into Constitution of the International Labour Organisation 15 , stated that “whereas the League of Nations has for its object the establishment of universal peace, and such peace can be established only if it is based upon social justice16; and whereas conditions of labour exist involving such injustice, hardship and

TREBILCOCK, A, ibid.

Article 387 ToV, the first after the preamble and then become Article 1 of the Constituion, officially established the ILO, “a permanent organisation […] for the promotion of the objects set forth in the preamble”. 15

Modified with the 1946 Instrument of amendment adopted by the International Labour Conference at its 29th session. The actual version of Preamble states: “Whereas universal and lasting peace can be established only if it is based upon social justice…” 16

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privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required; as, for example, by the regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own 17 , recognition of the principle of freedom of association, the organization of vocational and technical education and other measures18”. As can be seen from the passage above, all the four decent work factors were already noticeable as the organization’s main objectives in the 1919 Constitution. The establishing chart has been said to already include the basic expression of human rights, though the term was not in use then, which expression includes equal pay for work of equal value, freedom from discrimination on the basis of race, creed and sex and freedom of association19. This first formulation of standards, that was aimed at resolving the worst of the most basic problems in the labour field, laid down minimum bases for legislation to homogeneously correct the worst social injustices20. The Preamble referred, among others, to conditions of work and the working day, occupational diseases and accidents, unemployment, freedom of association, equal pay,

With the 1946 amendment “recognition of the principle of equal remuneration for work of equal value” has been inserted here. 17

ILO Constitution, 1919.

SWEPSTON, L. supra note 1, p. 55.

BARTOLOMEI DE LA CRUZ, H. G., VON POTOBSKY, G., SWEPTON, L. The International Labor Organization, p. 12. 20

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vocational training, and pension for old age and injury21. The main focus, as underlined by the order of exposition followed in this first version of the text, was on standard setting, then industrial relations and social security were following. Indeed, as would be later self-recognized, in the 1919-48 period, the focus of the whole organization was centred on standard setting 22 . The underlying assumption was that all Members of the ILO would have had problems typical of the contemporary industrial economies; the emphasis was therefore more on social security and industrial relations than on the jobs creation. But some anticipations of the wider decent vision appear clear looking at the French version of the text and in particular in paragraph three, were “humane 23 conditions of labour” corresponds to “un régime de travail réellement humain” and the goal to improve conditions of labour corresponds to “améliorer le sort des travailleurs24”. Article 427 of the Treaty, also called “the Labour Charter”, constituting by itself Section II of Part III, did go deeper in description of nine special and urgent methods and principles. These were first, “the guiding principle […] that Labour should not be regarded merely as a commodity or article of commerce”; second, “the right of association for all lawful purposes by the employed as well as by the employers”; third, “the payment to the employed of a wage adequate to

BARTOLOMEI DE LA CRUZ, H. G., VON POTOBSKY, G., SWEPTON, L., ibid., p. 12-13.

22 Decent Work, Report of the Director General to the 87th International Labour Conference, 1999. 23 The term humane here appears both in the original text of 1919 and in the last edition of Constitution and selected texts edited by the ILO itself. The term's actual meaning as reported by the Oxford Advanced Learner's Dictionary by the OUP “showing kindness towards people and animals by making sure that they do not suffer more than is necessary” seems to recall a negative vision of work relationship, as the same dictionary gives for example : ”the humane treatment of refugees”. The more realistic explanation for using this term is to refere to the second, “formal” definition reported by the wider Concise Oxford English Dictionary, published by the OUP in 2008, in relation to a branch of learning as “intended to have a civilizing effect”. 24 TREBILCOCK,

A. Towards Social Dialogue: Tripartite Cooperation in National Economic and Social Policy-making

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maintain a reasonable standard of life as this is understood in their time and country”; fourth, “the adoption of an eight hours day or a forty-eight hours week as the standard to be aimed at where it has not already been attained; fifth, “the adoption of a weekly rest of at least twenty-four hours, which should include Sunday wherever practicable”; sixth, “the abolition of child labour and the imposition of such limitations on the labour of young persons as shall permit the continuation of their education and assure their proper physical development”; seventh, “the principle that men and women should receive equal remuneration for work of equal value”; eighth, “the standard set by law in each country with respect to the conditions of labour should have due regard to the equitable economic treatment of all workers lawfully resident therein”; ninth, “each State should make provision for a system of inspection in which women should take part, in order to ensure the enforcement of the laws and regulations for the protection of the employed25”. As can be noted, these provisions form a quite confuse mixture in which goals are muddled with indications of possible ways to obtain them and principles are messed up with rules, the focus is otherwise firmly centred on rights at work. This list would be the ground for the definition of ILO’s core objectives in the Declaration of Philadelphia. Declaration of Philadelphia – 1944. The Declaration concerning the aims and purposes of the International Labour Organisation, that became an annex to the Constitution, broadened the ILO’s mandate from labour to social issues 26 . Reference to this text was inserted in article 1 of the ILO Constitution through the Instrument of Amendment Adopted by the International Labour Conference at its 29th Session on 19th September 1946. In this Declaration the General Conference reaffirmed the four pillars composition The Labour Provisions of the Peace Treaties, International Labour Office, Geneva 1920, also here, as in the third paragraph, the legally equivalent French version of the text refers more broadly to travailleurs, forerunning in this way (consciously or not) the road to decent work for all. 25

TREBILCOCK, A. supra note 5, p. 11

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of the main objective of the organization: â&#x20AC;&#x153;The Conference reaffirms the fundamental principles on which the Organisation is based and, in particular, that:(a) labour is not a commodity; (b) freedom of expression and of association are essential to sustained progress; (c) poverty anywhere constitutes a danger to prosperity everywhere; (d) the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort27â&#x20AC;?. The four principles enumerated here clearly recall the four decent work elements. In particular point (a) forestalled the rights at work element, as point (b) would be embodied by social dialogue element. Similarly points (c) and (d) would later be structured in employment and social protection elements. But the Declaration of Philadelphia went on anticipating the way later reinterpreted as the route to decent work especially in paragraph III. Here solemn obligation was stated to the achievement of ten fundamental objectives within which bright anticipations of the four pillars can be easily recognized. In particular Employment had to be full, vocational and skills-based in order to allow workers to be satisfied by contributing to common well being, also through training that had to be facilitated or migration. Rights at work were connected to policies in regard to wages and earnings, hours and other conditions of work that had to be calculated to ensure a just share of the fruits of progress to all, a minimum living wage to all employed and an adequate protection for the life and health of workers in all occupations. Social dialogue had to be pursued through the effective recognition of the right of collective bargaining, the cooperation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and

ILO, Declaration concerning the aims and purposes of the International Labour Organisation also known as Declaration of Philadelphia, 1944. 27

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economic measures. Social protection can be recognized in the extension of social security measures to provide a basic income to all in need of such protection and comprehensive medical care, child welfare and maternity protection, adequate nutrition, housing and facilities for recreation and culture. As said, the importance of this declaration would be later confirmed in 1946 by annexing it to the text of the Constitution during the General Conference in Montreal, decision formalized later that year with the Instrument of Amendment adopted by the International Labour Conference at its 29th session. This statement together with the Universal Declaration of Human Rights, adopted by UN General Assembly Resolution 217A (III), on 10th December 1948, inaugurated a phase of greater operational emphasis: the 1948-68 period witnessed an important shift towards operational activities. Recognizing the ILO success in translating into action the fundamental moral idea on which it is based "Si vis pacem, cole justitiam"28. (If you desire peace, cultivate justice), the Nobel Committee of the Norwegian Parliament awarded the Peace Prize for 1969 to the organization. Analysing the Acceptance speech by the ILO Director-General of the time, David A. Morse, ILO and the Social Infrastructure for peace, many elements anticipating the decent work paradigm can be identified. The employment element emerged in the following way “the ILO has decided to make the creation of higher levels of employment and employment opportunity the cornerstone of its action […] For employment is a prime source of income, and a family's very existence will depend on whether or not the breadwinner is able to earn a decent livelihood from work29”. Here concepts as family income and breadwinner clearly demonstrate a particular attention by the organization 28

ILO Nobel Lecture (1969) - ILO and the Social Infrastructure of Peace.

ILO(1969), ibid.

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for a certain basic unit in composition of society, this evolved later and individuals become objects of the attention. Another evolution that is related to this individualization but that would come only in some decades regards the informal and in particular home economy. Social protection and rights at work element can be foreseen in this passage: “we shall also be concerned with the adoption of other measures which will raise the living standards of the very poor - for example, the extension of social security schemes to new categories of workers, the provision of housing, and improved living and working conditions. And we shall continue to encourage the establishment and improvement of such vital institutions as trade unions and cooperatives30” As can easily be understood in these words, in those turbulent times, particular attention should be given to social dialogue, so the Director general highlighted that: “The ILO has given the world the concept of the industrial dialogue; in the years to come it must seek to broaden the scope, and increase the substance, of that dialogue31”. Another aspect emerging here is the strict connection binding effectiveness in social dialogue relations to the achievement of social justice, as wrote: “The goal of "social justice" which the ILO's founding fathers wrote into the Treaty of Versailles has proved to be a dynamic concept32”. The 1995 UN World Summit for Social Development was chaired by the nearfuture ILO Director-general Somavia. Some of the resulting final commitments are particularly important for this review. On the Employment side, Commitment 3 is centred on “the goal of full employment as a basic priority of our economic and social policies, enabling all men and women to attain secure and sustainable livelihoods through freely chosen productive employment and

ILO(1969), ibid.

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work33”. With regard to Social dialogue, Commitment 4 is about ” promoting social integration by fostering societies that are stable, safe and just and that are based on the promotion and protection of all human rights, as well as on nondiscrimination, tolerance, respect for diversity, equality of opportunity, solidarity, security, and participation of all people, including disadvantaged and vulnerable groups and persons34”. Rights at work are recognizable in Commitment 5 aimed “to promoting full respect for human dignity and to achieving equality and equity between women and men, and to recognizing and enhancing the participation and leadership roles of women in political, civil, economic, social and cultural life and in development35”. Finally Social protection is widely encompassed by Commitment 6 oriented to “promoting and attaining the goals of universal and equitable access to quality education, the highest attainable standard of physical and mental health, and the access of all to primary health care, making particular efforts to rectify inequalities relating to social conditions and without distinction as to race, national origin, gender, age or disability; respecting and promoting our common and particular cultures; striving to strengthen the role of culture in development; preserving the essential bases of people-centred sustainable development; and contributing to the full development of human resources and to social development. The purpose of these activities is to eradicate poverty, promote full and productive employment and foster social integration36”. The Summit had in this way identified the core standards, the response by the

UN 1995 World Summit for Social Development, Final commitments

UN(1995), ibid.

UN1995), ibid.

UN(1995), ibid.

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ILO would have been the adoption of the Declaration on Fundamental Principles and Rights at Work in 1998. Declaration on Fundamental Principles and Rights at Work – 1998. The main objective of the Declaration was to realize what stated by the DirectorGeneral in his Report to the 85th ILC in 1997, The ILO, Standard Setting and Globalization: to “rediscover the relevance of the objectives contained in the ILO Constitution and to give greater effect to the means of action it provides37”. The Declaration is important mainly for two novelties introduced, at first the standards set out in it as universal minimum standard to preserve human dignity have a global reach. According to Article 2 “all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of the membership in the Organization, to respect, to promote and to realize […] the principles concerning the fundamental rights”. These are freedom from forced labour, child labour, discrimination and freedom of association (called Core Labour Standards). “In seeking to maintain the link between social progress and economic growth, the guarantee of fundamental principles and rights at work is of particular significance in that it enables the persons concerned, to claim freely and on the basis of equality of opportunity, their fair share of the wealth which they have helped to generate, and to achieve fully their human potential”. The second key feature of this Declaration is surely the instrumental redesign of the entire organization putting technical assistance to governments side by side to national reports collection. According to article 3, indeed ILO has “to assist its Members, in response to their established and expressed needs, in order to attain these objectives” through in loco technical assistance in relationships with the International organizations. Juxtaposed to this assistance a peremptory norm emerges from the follow-up: “labour standards should not be used for

ILO (1998) Declaration on Fundamental Principles and Rights at Work, p.3.

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protectionist trade purposes, and that nothing in this Declaration and its followup shall be invoked or otherwise used for such purposes; in addition, the comparative advantage of any country should in no way be called into question by this Declaration and its follow-up”. The value of the 1998 declaration has been object of a dispute on pages of American and European journals of international law38. A particularly important contribution to this debate is the one of Maupain. The author, in response to Alston’s critiques against a hierarchical subdivision of rights, highlights that the four fundamental workers rights constitute a functional category as enabling rights (or else process rights), since they empower workers with the tools that are necessary for the conquest of other rights39. This explanation can also respond to critiques to the absence of safety and health within core rights40. When Juan Somavia officially introduced the concept of decent work, submitting his first Director-General report to the International Labour Conference in June 1999, he used the following words: “The primary goal of the ILO today is to promote opportunities for women and men to obtain decent and productive work, in conditions of freedom, equality, security and human rights, this is the main purpose of the Organization today. Decent work is the converging focus of all its four strategic objectives: the promotion of rights at work, employment, social protection and social dialogue. It must guide its policies and define its international role in the near future41”. Also this concept

See ALSTON, P. (2004b) and ALSTON, P., HEENAN, J. (2004a) assigning it a soft-promotional if not even self-celebrative function moving from specific rights to general principles. The critical review by MAUPAIN, F. (2005) challenges the idea that great specificity means greater impact but also points out an empirical positive impact on ratification level, while LANGILLE, B. A. (2005) points out limits of a strichtly lawer’s view. ALSTON (2005) by his side, replies underlying the need to consider the declaration as a starting point for a more effective agenda. 38

MAUPAIN, F. (2005) Revitalization, not retreat: The real potential of the 1998 ILO declaration for thr universal protection of worker’s rights, pp. 448-449. 39

MAUPAIN, F. Ibid.

SOMAVIA, J. Decent Work, International Labour Conference, 87th session, 1999, Report of the

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statement has been criticized, in particular Alston views in it another supportive evidence of a marginalization of the normative workers’ rights approach in the direction of a softer approach42. As opposite the Declaration and following developments have been described as a decisive departure from the Supiot’s cafeteria approach to workers’ rights which left Member States free to pick and choose the Conventions they wished to ratify, binding (the Declaration) all member states automatically to respect fundamental conventions43. Another sharply defensive response to Alston’s criticism has been given by Langille, stating that it does not represent a shift from a soft normative to a softer promotional role for the Organization but else a way to overcome dichotomies between labour rights and economic progress44. In this vision the ILO gains a new and stronger rationale as leading actor in bridging contrasts between economic and human rights theories, between social justice and economic progress 45. Social justice gains a central position as in the Constitution, as for its double nature of goal of, and precondition to, the creation of durable and sustainable economies and societies46. This is actually the founding idea of the two-faced role of the ILO of standard monitoring and technical assistance to member states47 as in Resolution on strengthening the ILO’s capacity to assist its Members’ efforts to reach its objectives in the context of globalization that will be adopted on 10th June 2008 by the ILC48.

Director General, ILC.87/DG/1. ALSTON, P. Core Labour Standards and the Transformation of the International Labour Rights Regime, pp. 488-489. 42

MAUPAIN, F. Ibid. See also CRAIG, J.D.R., REGENBOGEN LUCIW, S. Decent Work and International Labour Law: A Diversion or a New Direction? 43

LANGILLE, B. A. Core Labour Rights – The true story (Reply to Alston), p. 419

LANGILLE, B. A. ibid.

LANGILLE, B. A. ibid. p.420

ILO (2008) Resolutions adopted by the International Labour Conference at its 97th Session.

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The concept of Decent Work is then clarified in the same report describing decent work as “productive work in which rights are protected, which generates an adequate income with adequate social protection”. This was connected to “sufficient work in the sense that all should have access to income earning opportunities”. It marked “the high road to economic and social development, a road in which employment, income and social protection can be achieved without compromising workers’ rights and social standards49”. Few months later Somavia further highlighted the global reach of the framework, writing that “decent work is not an intellectual idea, […] it is the most deeply felt aspiration of people in all societies50”. Later this year, in a discourse addressed to the Konrad Adenauer Foundation in Berlin on 29 September 2000 and entitled “Globalization and Social Justice, a Decent Work Agenda”, Somavia gave a name to the organization’s plan: “achieving decent work for everyone would take us a very long way towards meeting the goals of people and families. That is an Agenda which combines the historic mandate of the ILO in terms of labour standards and social protection with a mandate for employment creation and enterprise growth”. In the Resolutions and decisions adopted by the General Assembly during its twenty-fourth special session

the international community implicitly

recognized the need to promote decent work referring to employment that meets labour standards as defined by the International Labour Organization. Moreover the document pointed out that public labour-intensive investments like those improving social services and the provision of other public goods within developed countries as well as infrastructures investments in developing and transition countries, have proven to be effective means of promoting 49

SOMAVIA, J. ibid.

S OMAVIA , J. Perspectives on decent work

Social Development, UN, General Assembly, 24th Special Session, Resolutions and decisions adopted by the General Assembly: [A/S-24/10] 51

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employment and stimulating people-centred sustainable development. In this direction goes also interpretation by Rodgers who states that the summit endorsed the Decent Work Agenda and in particular called on the ILO to develop a coherent and coordinated international strategy on employment52. As explained by the ILO itself, “The Global Employment Agenda, whose principal aim is to make employment central in economic and social policy making in order to create more and better jobs, was adopted by the ILO’s Governing Body in March 2003 with strong tripartite consensus and support53”. The whole debate for adopting the document laid on seven pillars, namely: 1) Decent work as a productive factor; 2) A pro-employment macroeconomic framework; 3) Entrepreneurship and private investment; 4) Improving the productivity and opportunities of the working poor; 5) Ending discrimination in the labour market; 6) Environmentally and socially sustainable growth; 7) Employability and adaptability. The Governing Body immediately highlighted the sound strategic importance of two of these principles. Particular attention was given primarily to the ethical imperative nature of fundamental workers’ rights and international labour standards giving to decent work a value beyond any economic calculation. Decent became in this way an intrinsic connotation of work as a productive factor as in the first principle. “ the Decent Work Agenda is one in which freely chosen productive employment is promoted simultaneously with fundamental rights at work, an adequate income from work and the security of social protection” The document then reiterates basic conception that founds the whole decent work framework: “labour markets function differently from other markets, labour is not a commodity and labour markets are socially embedded” in this

R ODGERS , G. ILO and the quest for social justice, 1919-2009 p. 232.

ILO, Implementing the Global Employment Agenda: Employment strategies in support of decent work, “Vision” document 53

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formulation the social dimension is strongly as synthetically highlighted. This social sensitivity is confirmed later through the text by another sentence stating “the very purpose of economic growth is the promotion of human dignity and quality of life”. During the United Nations World Summit in 2005 the strategic importance of employment was further underlined: “We strongly support fair globalization and resolve to make the goals of full and productive employment and decent work for all, including for women and young people, a central objective of our relevant national and international policies as well as our national development strategies, including poverty reduction strategies, as part of our efforts to achieve the Millennium Development Goals54”. As can easily be noticed the components are here all encompassed in a unique paragraph. Declaration on Social Justice for a Fair Globalization – 2008. The Declaration on Social Justice for a Fair Globalization reveals its fundamental importance starting from its own format, it marks in fact only the third time in ILO history that the ILC has expressed the organization’s commitment to core principles in the form of a declaration55. In this sense it shows to be based on the Declaration of Philadelphia of 1944 and the Declaration on fundamental Principles and Rights at Work of ten years before56. The ILO itself describes it as a “landmark declaration [that] is a powerful reaffirmation of ILO values57”, as “the most important renewal of the Organization since adoption of the historic Declaration of Philadelphia58” and as “a significant step forward in respecting,

UN 2005 World Summit Outcome – Final Document

BELLACE, J. R. supra note 7, p. 21, substantially recalling first lines of the Preface to the Declaration on Social Justice for a fair Globalization 55

BELLACE, J. R., ibid.

ILO (2008) Declaration on Social Justice for a Fair Globalization, p. 1.

ILO adopts landmark Declaration on Social Justice for a Fair Globalization, in ILO website – ILO Home/About the ILO/Press and Media centre/ News, http://www.ilo.org/global/about58

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promoting and realizing the Declaration on Fundamental Principles and Rights at Work59”. The declaration can be considered as the first official statement of an integrated approach to Decent Work. It represents indeed a proper formalization of the whole conceptualization and expression of universality of the Decent work Agenda as it “institutionalizes the Decent Work concept developed by the ILO since 1999, placing it at the core of the Organization’s policies to reach its constitutional objectives60”. The declared holistic and integrated approach is based on recognition that the four objectives are inseparable, interrelated and mutually supportive61. Under the principle of inseparability stated in section IB, member states implicitly accepted all objectives contained in the ILO constitution (and later declarations) in the same moment of becoming members62. This document is, indeed, essentially concerned with underlying the importance of the Decent Work Agenda spread out in its four components63 since “the failure to promote any one of then would harm progress towards the others 64 ”. Provisions contained in the Declaration and its accompanying resolution65 require ILO constituents, the Office and the organization “to make the fullest possible use of all the means of action provided under the

the-ilo/press-and-media-centre/news/WCMS_094186/lang--en/index.htm. 59

ILO (2008), ibid.

ILO (2008) supra note 47, ibid.

ILO (2008), point B at p. 11

MAUPAIN, F. (2009) New Foundation or new Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization, p. 845. 62

R ODGERS , G. supra note 42, p. 233.

ILO (2008) Declaration on Social Justice for a Fair Globalization cited by R ODGERS , G. ibid.

Refer to Resolution on strengthening the ILO’s capacity to assist its Members’ efforts to reach its objectives in the context of globalization, in Resolutions adopted by the International Labour Conference at its 97th Session 65

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Constitution of the ILO to fulfil its mandate66”. The political and promotional value, as “a compass for the promotion of a fair globalization based on Decent Work, as well as practical tool to accelerate progress in the implementation of the Decent Work Agenda at the country level67” that was harshly criticized in the Declaration adopted ten years before is here recognized by the Organization itself. This recognition clearly emerges also from presentation on the website stating that (Declaration) “also asks the ILO to invite other international and regional organizations to promote decent work68. Quoting the Declaration, “as trade and financial market policy both affect employment, it is the ILO’s role to evaluate these employment effects to achieve its aim of placing employment at the heart of economic policies69”. The four pillars are here even more clearly explained. In particular the first is “promoting employment by creating a sustainable institutional and economic environment in which: - individuals can develop and update the necessary capacities and skills they need to enable them to be productively occupied for their personal fulfilment and common well being; - all enterprises, public or private, are sustainable to enable growth and the generation of greater employment and income opportunities and prospects for all; and – societies can achieve their goals of economic development, good living standards and social progress70”. The second is about “developing and enhancing measures of social protection (social security and labour protection) which are sustainable and adapted to national circumstances, including: - the extension of social security to all, including measures to provide basic income to all in need of such

ILO (2008) Declaration on Social Justice for a Fair Globalization cited by BELLACE, J. R. supra note 7, p. 23 66

ILO (2008) supra note 47, ibid.

ILO Website, supra note 47.

ILO, supra note 49.

ILO, supra sote 51.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

protection, and adapting its scope and coverage to meet the new needs and uncertainties generated by the rapidity of technological, societal, demographic and economic changes; – healthy and safe working conditions; and – policies in regard to wages and earnings, hours and other conditions of work, designed to ensure a just share of the fruits of progress to all and a minimum living wage to all employed and in need of such protection71”. The third element is “promoting social dialogue and tripartism as the most appropriate methods for: – adapting the implementation of the strategic objectives to the needs and circumstances of each country; – translating economic development into social progress, and social progress into economic development; – facilitating consensus building on relevant national and international policies that impact on employment and decent work strategies and programmes; and – making labour law and institutions effective, including in respect of the recognition of the employment relationship, the promotion of good industrial relations and the building of effective labour inspection systems 72 ”. And as fourth element “respecting, promoting and realizing the fundamental principles and rights at work, which are of particular significance, as both rights and enabling conditions that are necessary for the full realization of all of the strategic objectives, noting: – that freedom of association and the effective recognition of the right to collective bargaining are particularly important to enable the attainment of the four strategic objectives; and – that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes73”. As can be understood in the reconstruction just given, the objective of the ILO

ILO, ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

has ever been universal social justice, a condition in which “a set of regulations, institutions and policies” ensure “a fair treatment to all members of society, and a relatively equal distribution of opportunities and income 74 ” as later highlighted by the World Commission on the Social Dimensions of Globalization convened by the Director General in 2002.

The concept emerging in the

documents analysed is a composite concept, a unique sum of four strategic components, four operational priorities aiming to obtain one only target: decent work for all. Furthermore, the decent work concept represents far more than an instrument to capture in a simple and succinct manner the essence of ILO’s mission and areas of work. Its contribution lies, above all, in providing a unified framework for the organization’s major areas of work, “an integrating concept with which to analyse and better understand the impact of more specific aspects of the ILO’s work75”. In a triadic dialectic efficaciously described by Dharam Ghai, decent work framework points, at first, to the different domains of operation of its own components that refer to different aspects of workers’ life. Second, it invokes a reflection on the complementarities and trade-offs among its four components. At last the decent work approach permits to analyse more easily structural and institutional diversity thus facilitating a universalistic approach to the world of work: the objectives are of universal aspiration, but the institutional and policy context inevitably differs in each country and region76. The first pillar of this conceptualization, as it emerges in the deepener analysis carried out in its first delineation, is “Promoting rights at work for all those who work” that is about the “improvement of the condition of labour” because labour is not a commodity and human resources are a special production factor in no

ILO (2002) cited by H EPPLE , B. (2005) Labour Laws and Global Trade, page 63

ILO, ibid.

G HAI, D. (2006) Decent Work: Universality and diversity p. 3,4.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

way comparable with other factors. The ILO recognized Stieglitz’s contribution: “steel does not have to be motivated to work as an input77”. The second pillar is represented by “promoting opportunities for work” and is about the expansion of “opportunities for people to find productive work and earn a decent livelihood”. “Protection against vulnerabilities in work” is the third pillar and it is

about

combatting

social

exclusion

through

the

compensation

“contingencies that take people out of work”. Finally, “social dialogue”, the fourth pillar, is about the intrinsic end of democratic societies: “conflict resolution” also through cooperation between workers and employers, “social equity and effective policy implementation78”. As Rodgers79 points out, the major contributor of the decent work founding ideas is Amartya Sen in his Development as Freedom. The conception of development presented by Sen involves the removal of unfreedoms like poverty, limited access to public services and infrastructures or civil rights being denied. In this view the relationship between freedom and development is threedimensional: it’s constitutive in the way freedom is the primary end of development, it’s instrumental because freedoms are the principal means of development and it’s constructive because they both contribute to centre the focus on social needs, values and priorities. Continuing with this argumentation, the said interaction provides a solid basis to the decent work paradigm. In Rodger’s tractation of Sen’s list of freedoms we can find indeed workers rights, income security and employment opportunity that are very important goals

S TIGLITZ, J. E. (2002) Employment, social justice and societal well-being. The author, whose contribution has been recognized by the ILO in 2008 with the Decent Work research prize, argues “One of the great tricks of neoclassical economics is to treat labour like any other factor of production. Output is written as a function of inputs – steel, machines and labour […] But management is generally highly concerned with motivating labour. Individuals decide how hard they work, and with what care”. 77

ILO, supra note 6

R ODGERS , G. Decent work as a goal for the global economy

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

taken individually but taken together they are more than the sum of the parts80.

Decent work The concept of decent work has been described since its emergence as “a way of expressing the primary goal of the ILO in everyday language81”, “an overall goal which contains the priorities of all the ILO’s constituents […] as a basis for building consensus82”, “an integrating concept with which to analyse and better understand the impact of more specific aspects of the ILO’s work83” and “a means of organizing and managing the work of the Office84”. It is based on the understanding that work is a source of personal dignity, family stability, peace in the community, democracies that deliver for people, and economic growth that expands opportunities for productive jobs and enterprise development85. Work, indeed, is wider than labour or employment and the power of this paradigm is its applicability to all working people in all societies, a cross-cutting set of objectives covering the full spectrum of diversity of institutional and developmental environment, as Ghai explains, working people in all societies desire to enjoy freedom of association, to participate in decision making affecting them, to work in dignity and safety conditions with an adequate remuneration and a minimum level of social and economic security in work and life86. Decent, embodies a realistic ambition that meets social norms in relation to all its four constituent elements. As Hepple states, “the concept of decent

R ODGERS , G., ibid.

R ODGERS , G. supra note 42, p. 224.

R ODGERS , G., ibid.

ILO supra note 6, cited by BELLACE, J. R. supra note 7, endonote n7.

G HAI, D. supra note 69, p. 3,4.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

work provides an opportunity to move away from the model of paid employment in the formal sector, towards international regulation of productive work, whatever its legal form, on the basis of minimum socio-economic rights87”. In 2000 Amartya Sen already described the reach of decent work as momentously large referring to the fact that “ it includes all workers, wherever and whatever sector they work; not just workers in the organized sector, nor only wage workers, but also unregulated wage workers, the self-employed, and the homeworkers88”, also to the vast amount of overworked and unemployed people depicted in the Director General Report89. As Rodgers90 pointed out in 2002, the baseline of decent work concept lays in work itself. “Work is where economic and social objectives come together in people’s lives”, it exceeds those definitions tending to depict it only as a mean of production and income. From this widener perception work ”is also about social integration and personal identity and dignity” 91 . Reminding the thought of Polanyi, here revised by Rodgers, “an integrated approach to social and economic goals is essential for the legitimacy and ultimately the survival of the market economy” because of “the tendency for market mechanisms to lead to a concentration of incomes and opportunities” that needs to be balanced by a range of redistributive policies. Using this approach becomes even brighter to role decent work as a mean to gather social and economic goals in an everyday language package that makes sense as a whole92. As will be remarked later in this chapter, creating jobs omitting to look at their quality is a misleading recipe for progress, focusing all the efforts on working conditions without considering the contingent labour

H EPPLE , B. (2005) Labour Laws and Global Trade p. 66

S EN , A. (2000) Work and rights p. 120

ILO supra note 6.

Gerry Rodgers, former director of the IILS – Institute for International Labour Studies

R ODGERS , G. Decent work as a goal for the global economy

R ODGERS , G., ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

market supply is equally fruitless but employment availability without workers representation and welfare is at the same time a self-defeating strategy. As also noticed by MacNaughton and Frey “the definition of decent work must address whole jobs, whole people and whole families, to do so it must recognize that the various dimensions of people’s lives are interrelated, interdependent and indivisible, and consequently must be addressed in a holistic human rights framework93”.

Decent work Agenda As said, decent work has ever been declined by the ILO pursuing an integrated agenda but exposition has obviously been influenced by the varying context both on the international politics side and on the side on of mainstreaming economic theory and the consequent approach to policies. In the 1999 delineation of the concept, components of Decent Work were listed as rights at work, employment, social protection, and social dialogue. Later, a change in the relative priority of the four items on the agenda was officialised by the Director General in 200394 when he declared that “the principal route out of poverty is work, and to this end

the

economy

entrepreneurship,

job

must

generate

creation

and

opportunities sustainable

for

investment,

livelihoods”

pushing

Employment to the first position. The exposition hereafter will take account of the further modification taken in the order by the Global Jobs Pact 95 , adopted by the International Labour Conference at its Ninety-eighth Session on 19 June 2009. Recalling the Declaration on Social Justice for a Fair Globalization, in this document

M AC N AUGHTON , G., F REY , D. F. (2011) Decent Work For all: a Holistic Human Rights Approach p. 468 93

ILO (2003) Working out of poverty

ILO (2009) Recovering from the crisis: A Global Jobs Pact

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

priorities of the ILO were reordered in an organic agenda based on a fourpointed list of specific policy directives addressed to national governments, namely: 1) accelerating employment creation, jobs recovery and sustaining enterprises, 2) building social protection systems and protecting people, 3) strengthening respect for International Labour Standards and 4) social dialogue: bargaining collectively, identifying priorities, stimulating action. Employment creation. Generally speaking, for a large fraction of the world’s population work, the recognition of their contribution through a payment is important. Stieglitz identifies a causal relation between unemployment and a variety of problems and pathologies, only few individuals can keep themselves happy and gainful employed without a job96. “Employment is at the core of the ILO’s mandate”, even in the 1999 formulation of the concept “without productive employment, the decent living standards, social and economic development and personal fulfilment remain illusory97”. The relative weight of this component within the ILO objectives already started to increase since the World Summit on Social Development in 1995. Employment creation objective can otherwise be expressed in Rodger’s way as “adequate opportunities for productive and meaningful work in decent conditions” or even the fulfilment of best conditions for freely chosen personal development using one’s capabilities98. In the wider vision promoted by the ILO since the beginning of the decent work debate, employment refers here not just to wage jobs but to work of all kinds, to formal such as informal economy. On the policy analysis side of employment promotion, an effective strategy needs to integrate a multitude of both economic and social policies, not only because work is a multi-dimensional issue but also because it’s influenced by a

S TIGLITZ, J.E. (2002) Employment, social justice and societal well-being. p. 9

ILO, supra note 6.

R ODGERS , G., Decent work as a goal for the global economy, p. 4

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

large range of macro-economic and micro-economic policies.99 As stated already in 1964 in convention 122, named Employment Policy Convention, “each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment”. Then the convention goes through a more rigorous definition of the action that states are called to take. These policies shall aim in particular at realizing three main conditions: a) work for all who are seeking it; b) work as productive as possible; c) freely chosen work within a context of best opportunities to qualify for, and to use his skills in, a job for which the worker is well suited100. Moreover, in addition to the role played by domestic policies in influencing the national context, this also feels more and more the effect of the global environment on growth and employment rate 101 . On the micro-economic side this universality could be identified in the fact that everywhere small and medium enterprises use more labour per unit of output than big ones and investments in infrastructural development, primary health care, education and social security can generate decent work opportunities102. As also Stieglitz points out analysing the actual economic crisis: the nature of the problem that we face today relies on the way we organize resources to create value, indeed “The people in the global economy have the same skills as before the crisis, and the machines and real resources are the same too […] We are failing to put to work these human and physical resources to produce output”103. The Global Employment Agenda, already launched by the Governing Body in 2003 and explicitly positioned within the broader framework of the Decent Work Agenda, takes a double contribution to the last. On the one hand, on the 99

G HAI, D., supra note 69, p. 13, 14.

100

ILO (1964), C122 Employment Policy Convention.

101

G HAI, D., supra note 69, p. 13, 14.

102

Ibid., p. 14.

103

S TIGLITZ, J.E. (2009), The global crisis, social protection and jobs p. 10.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

quantitative side, it promotes opportunities, that is crucial for decent work, on the other hand, it promotes qualitatively decent work as the â&#x20AC;&#x153;best way to promote productive employment104â&#x20AC;?. Social Protection. The purpose of the social protection element is to provide security against a variety of contingencies and vulnerabilities. This definition goes beyond the more limited notion of security at work: it firstly extends the coverage of protection from the only category of workers to embrace also vulnerable persons lying out of a paid work situation, secondly it aims to cover a broader spectrum of contingencies and vulnerabilities aiming to embrace the needs of the whole society also in cases of destitution, extreme economic fluctuations and natural and human catastrophes105. Social Protection is without any doubt the biggest innovation taken by the Decent Work Agenda to the operational framework and vision of the ILO. The innovative charge of this element is due firstly to its comprehensive nature, covering the full range of vulnerabilities of all members of society, but secondly also to the new approach that it represents. This approach overcomes differences between developed and developing countries by fixing only the operational objective and not a fixed method or strategy. Indeed, on one hand in rich countries the emphasis of these policies is on mitigating work-related risks through the provision of unemployment subsidies and facilities, pensions for retired, maternity leave and children allowance, health and accidents insurance106. On the other hand in developing countries the emphasis is on ensuring survival, satisfying basic needs, prevent contingencies, natural disasters and civil conflicts. A common, operational objective can be found fitting both these very different situations. In order to be effective, national

104

ILO (2003), Review of the core elements of the Global Employment Agenda.

105

G HAI, D., supra note 69, p. 13, 14.

106

G HAI, D., ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

social protection strategies must set up an institutional framework for the delivery and financing of social policies and measures. With regard to financing it can be assured through public resources or through voluntary or compulsory private contributions. The shares of these two components within the total amount of social security founding of a country depends upon its political and historical situation and its level of development. Moreover this composition deeply affects the resulting situation: predominance of private financing leaves untouched the distribution of incomes, evidently conflicting with the main scope of social protection. The extent of public financing finds its limits in the level of development of the country, depending from the consistence of resources that can be mobilized through taxation, but it’s also constrained by political oppositions to heavy taxation in addition to its intrinsic disincentive economic effects107. Following Stiglitz, an effective social protection mechanism is also a key factor for a State aiming at a well designed economic and policy organization. Since the challenge is to foster aggregate demand in order to sustain employment level, the worst possible policy frameworks are those that weaken automatic stabilizers by weakening social protection and in the meantime destabilize the economy making wages and labour market more “flexible” by means of lower protections and labour rights. This way conducts ineluctably to grater anxiety that increases savings rate and weakens consumption108. In April 2009 the United Nations Chief Executives Board adopted the Social Protection Floor Initiative (SPF-I), with the objective of realizing individuals’ human rights to social security and essential social services, countries that adopt the SPF develop nationally defined strategies for the progressive realization and sustainability of national social protection floors as well as higher levels of social

107

G HAI, D., ibid.

108

STIGLITZ, J. (2009) The global crisis, social protection and jobs.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

protection. There is no one-size-fits-all solution when implementing the Social Protection Floor and it does not define new rights; rather, it contributes to the realization of the human rights to social security and to social services, in line with the UN Universal Declaration of Human Rights and Convention 102 on Social Security (Minimum Standards). Rights at work. The Rights at Work element was initially considered as the first and most important of the four pillars constituting the decent work structure. Rights at work “constitutes the ethical and legal framework for all elements of decent work 109”. This element of decent work aims to firmly ensure the unavoidable connection between work and dignity, equality, freedom, adequate remuneration, social security, voice, representation and participation for all the categories of workers110. The basic importance that has been given to these rights is also demonstrated by the fact that their acceptance is considered a prerequisite of ILO membership. The conceptualization of the Core Labour Standards perfectly described the fundamental set of rights to be realized in every workplace. Freedom of association, freedom from discrimination, freedom from forced labour and freedom from child labour, acquired a global scope status since their unanimous acceptance by the 1995 Social Summit that was followed by the Declaration on the Fundamental Principles and Rights at Work adopted by the ILC in 1998. Another fundamentally innovative aspect of the decent work paradigm is strictly related to this rights-based formulation reflecting its connection with that declaration. As Sen notes, this “evaluative framework” overcomes the obstacle of legislative recognition for these rights to be enjoyed “acknowledging certain basic rights, whether or not they are legislated, as being a part of a decent society111”.

109

G HAI, D., supra note 69, p. 15.

110

G HAI, D., ibid.

111

SEN, A. (2000) Work and rights p. 122, 123

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Social Dialogue. “The ways in which people’s voices can be heard are a crucial aspect of decent work”, the effort in the DWA is focused on encompassing not only communication flows passing through trade unions but also voices coming from self-employed people and employers112. Following Rodgers social dialogue is an instrumental element to realize the other three dimensions of decent work, in the way it “determines to a large extent whether common goals can be identified and agreements reached113”. The classical system of industrial relations that has been the centre of ILO’s actions from the beginning of its operations is only one of the existing possibilities to implement social dialogue, it became clear that these relations no longer incorporate the majority of world’s workers114. Following this reasoning, Ghai arrives to determine the unique important necessary condition for social dialogue in the existence of effective freedom of association assured by a favourable legal, procedural and cultural framework promoted by governments. As anticipated in the first definition given hereinbefore and as shown in the figure 1, the four principles of decent work are closely correlated. As Maupain noticed, the added value of the decent work framework is just in the effort to underline the necessary complementarity and interdependence between the various aspects of workers’ rights, condition that has ever been endorsed by the Organization since its Constitution115 . Rodgers, for his part underlines that mutual interdependence between elements could be also negative citing for example the case in which an increase in social protection can come at the expense of employment, if it is not designed with the interrelationship in

112

RODGERS, G. Decent work as a goal for the global economy, P . 5

113

RODGERS, G., ibid.

114

G HAI, D., supra note 69, P .18

115

MAUPAIN, F., supra note 38.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

mind116.

Figure 1. Interdependence between Employment, Social Protection, Social Dialogue and Rights at Work. Source: D. Ghai (2006)

In this schematic representation Ghai117 reconstructs the links between them in a mutual dependence circuit. The employment component is connected to social security by a strong relationship as the availability of a big number of highly remunerative jobs can in some way compensate most of needs of social security reducing the role of social protection measures to be taken by government.

116

R ODGERS , G., supra note 42, p. 234

Dharam Ghai is the former director of the UNRISD, UN Research Institute for Social Development 117

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Moreover, jobs availability also affects the contents of collective bargaining, going to be focused on rights at work, such as the effective power of workers in negotiation of rights at work. Rights at work are obviously related to all aspects of decent work, the brightest link is with social dialogue, as an instrument to empower and make more flexible production measures and relations. But itâ&#x20AC;&#x2122;s particularly useful here to underline the mutuality of influence of this component with employment forms and levels, and social security patterns and policies118. Social protection influences employment in the measure it increases labour supply, investments, productivity and workersâ&#x20AC;&#x2122; response to innovation. Workers furthermore have increased bargaining power in social dialogue and assured access to rights at work. Social dialogue assures effectiveness to negotiations in a tripartite form of communication and clearly influences the implementation of policies in the field of social security and jobs creation but also widener macroeconomic policies.

118

G HAI, D. supra note 69, p. 20.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

2. The DWA at the Italian national level Having analysed the four-components structure of the Decent Work Agenda in the first chapter, it would be useful now to review the application of the Decent Work paradigm at the Italian national level. In order to depict the actual level of implementation in Italy, exposition will consist of two steps for each component: firstly conventions will be classified on the basis of their main theme and of their current status with reference to adoption by Italy. The second step will consist in a review of Italian laws that could be considered as an application of Decent Work paradigm.

Work Actually Starting from the classification of Conventions made by Hepple119, based on a comparison between the UNDPâ&#x20AC;&#x2122;s Human Development Index and the number of ratifications by member states, and looking also to the work120 produced by the European Parliament in 2006, a further reorganization of ILO conventions can be done using the four elements of decent work as categories. Another helpful strategy in defining which conventions to consider here is the work taken on by initiative of the ILO Governing Body in determining up-to-date instruments status121. In order to categorize conventions in a coherent model some of them will not be taken into consideration, those are the ones belonging to specific categories of international labour law subjects such as seafarers and

119

H EPPLE , B. (2005) Labour Laws and Global Trade pp. 42-47

European Parliament (2006) Report on Promoting Decent Work for All, Annex I, Level of ratification of the ILO conventions in the Member States and candidates countries 120

At its 262nd Session (March-April 1995), the Governing Body set up a Working Party on Policy regarding the Revision of Standards and entrusted it, among other things, with undertaking a case-by-case examination of all international labour Conventions and Recommendations. 121

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

dockworkers and migrant workers. Out of 189 Conventions adopted by the International Labour Conference since its first session, 77 obtained the up-todate status in the revision process taken on in recent years by the Working Party for the Governing body122. Many conventions affect only certain occupation sectors123. Excluding these specific subjects, a set of 54 conventions remains to be classified. Within this set of instruments adopted by the International Labour Conference, on the basis of their main subjects, 7 Conventions belong to the Employment element, 20 to the Social protection element, 19 conventions belong to the Rights at Work element. Finally, Social dialogue element encompasses 8 conventions. The objective of the following paragraphs is to review the level of Decent Work in Italy through an analysis of the implementation degree of relating conventions. The scheme of the presentation hereafter follows the Strategic Policy Framework 2010-2015 developed by the Governing Body and named Making decent work happen 124 , recalling this document every component is defined in a strategic/operative way.

Strategic objective 1) Promoting employment The first objective of the Governing body’s strategic policy framework is to create greater opportunities for women and men to secure decent employment and income. Expected outcomes are employment promotion, skills development

The Working Party, held 14 meetings in total, concluded its work in March 2002. It formulated a significant number of proposals that were unanimously approved by the Commission on Legal Issues and International Labour Standards (LILS Commission) and the Governing Body. 122

Seafarers’ conventions, for example, are adopted at separate Maritime Sessions of the International Labour Conference. 123

Making Decent Work Happen, Strategic Policy Framework 2010-2015, GB.304/PFA/2, International Labour Office – Governing Body, March 2009. 124

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

and creation of sustainable enterprises125. The state of the art in promoting this fundamental component of Decent Work in Italy can be roughly shaped recognizing that Italy adopted six out of the seven related conventions. Italian government adopted in particular all the four conventions related to procedural and measurement aspects of employment126, fixing standards in public and private employment policies and administration but also in labour statistics. All the developmental conventions127 based on capacity development from human resources in general to disabled persons working integration have been adopted. Italy, on the other hand, is still missing to adopt Convention on Paid Educational Leave of 1974128.

Strategic objective 2) Social Protection The second strategic objective consists in enhancing the coverage and effectiveness of social protection for all. Expected outcomes of this objective are social security, amelioration of working conditions, ensuring occupational safety and health, basic regulation of labour migrations and combating HIV/AIDS diffusion129 . Social protection list has to start with the related Core Labour Standards: the

125

GB, Ibid.

Italian government adopted all the conventions related to procedural aspects: in 1971 Convention 122 on Employment Policy of 1964, in 1985 Convention 150 on Labour Administration of 1978, Convention 160 on Labour Statistics of 1985 was adopted in 1989 and Convention 181 on Private Employment Agencies of 1997 in 2000. 126

Developmental conventions adopted by Italy are Convention 142 on Human Resources Development of 1975 that has been adopted in 1979 and Convention 159 on Vocational Rehabilitation and Employment for Disabled Persons of 1983 in 2000. 127

128

C140, Convention on Paid Educational Leave of 1974.

129

ILO Governing Body (2009) Supra note 3.

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Convention on Minimum Age130 was adopted by Italy in 1981 and Convention on Worst Forms of Child Labour131 in 2000. A large set of conventions has been adopted by Italy in 1952, including: Conventions on Medical Examination of Young Persons in Industry and in NonIndustrial Occupations 132 , one Convention on Labour Clauses in Public Contracts and one on Protection of Wages of 1949. Compulsoriness of medical examination was also theme of Convention relating young persons in underground work situations adopted by Italy in 1971133. Two social security conventions as the one on Minimum standards for Social Security and one on Equality of Treatment of were adopted by Italy in 1956 and 1967 134 . In addition, Convention on Maternity Protection 135 of 2000 was adopted in 2001. Within the list of conventions not already adopted by Italian government, those about accidents and sickness compensations brightly appear Convention 121 on Employment Injury Benefits of 1964 that was partially revised in 1980, Convention 128 on Invalidity, Old-Age and Survivors' Benefits of 1967 and Convention 130 on Medical Care and Sickness Benefits of 1969 and also Convention 156 on Workers with Family Responsibilities of 1981. There are then two standard setting conventions that have not been adopted by

130

C138, Convention on Minimum Age of 1973.

131

C182, Convention on Worst Forms of Child Labour of 1999.

C77, named Convention on Medical Examination of Young Persons in Industry and C78 for Non-Industrial Occupations of 1946. 132

Convention 94 on Labour Clauses in Public Contracts and Convention 95 on Protection of Wages of 1949. Convention 124 of 1965 on Medical examination of young persons in underground work situations adopted by Italy in 1971. 133

134 C102, Convention on Minimum standards for Social Security of 1952 and C118, Convention on Equality of Treatment of 1952 and 1962 were adopted by Italy in 1956 and 1967. 135

C183, Convention on Maternity Protection of 2000 adopted in 2001

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Italy, namely: Convention 131 on Minimum Wage Fixing of 1970 in addition to Convention 157 on Maintenance of Social Security Rights of 1982, Convention 168 on Employment Promotion and Protection against Unemployment of 1988 and Convention 173 on Protection of Workers' Claims against Employer's Insolvency of 1992.

Strategic objective 3) Social dialogue In the International Labour organizationâ&#x20AC;&#x2122;s vision Social dialogue is in strong relationship with association and workersâ&#x20AC;&#x2122; representation by trade unions. For this reason Core labour standards convention represent without any doubt the basis of this component. Conventions 87 of 1948 and 98 of 1949 regarding Freedom of Association and Protection of the Right to Organise, the first, and Right to Organise and Collective Bargaining, the latter, have been adopted by Italy in 1958. Within procedural conventions that have been rightly adopted by Italy figure out Convention on Workers' Representatives136 adopted in 1981 and Convention on Rural Workers' Organisations and Convention on Tripartite Consultation (International Labour Standards) 137 both adopted in 1979. Convention on Labour Relations in Public Service138 of 1978 has been adopted in 1985. Italy still not adopted Convention on Collective Bargaining139 of 1981.

136

C135, Convention on Workers' Representatives of 1971 adopted in 1981

C141, Convention on Rural Workers' Organisations of 1975 and Convention 144 on Tripartite Consultation (International Labour Standards) of 1976 both adopted in 1979. 137

138

C151, Convention on Labour Relations in Public Service of 1978 adopted in 1985.

139

C154, Convention on Collective Bargaining of 1981.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Strategic objective 4) Rights at Work At a first look the fourth strategic objective number could appear as related to the sole category of employed workers and in particular from an Italian perspective to industrial workers140. In ILOâ&#x20AC;&#x2122;s vision as it has been said in the first chapter, the decent work paradigm is applicable to all kinds of workers, in every sector of activity, even to informal economy and homeworkers. Core Labour Standards Conventions on Forced Labour and on Abolition of Forced Labour141, that open the list of instruments adopted by Italy in this field in reason of their significance, were adopted respectively in 1934 and 1968. Immediately after come the two Core Labour Standards Conventions on Equal Remuneration and on Discrimination in Employment and Occupation142. Conventions related to working time as the one on Weekly Rest in Industry and the one regarding Commerce and Offices143 have been adopted in 1924 and 1963, Convention 175 on Part-Time Work144 of 1994 in 2000. Inspection procedures instruments as Convention 81 on Labour Inspection in general and the one regarding Agriculture145 have been adopted in 1952 and 1981. As regards right to a safe activity at work Italy adopted a general convention on

Many scholars place first legislative provisions on a minimum social protection in the late nineteenth century at the origin of Italian labour law. Those laws explicitly refer to the figure of the operaio degli opifici industriali; see for example MAZZOTTA(2011), p.5 and p.38. 140

C29 on Forced Labour of 1930 adopted in 1934 and C105 on Abolition of Forced Labour of 1957 adopted in 1968 141

C100 on Equal Remuneration of 1951 adopted in 1956 and C111 on Discrimination in Employment and Occupation of 1958 adopted in 1963 142

C14, Convention on Weekly Rest in Industry of 1921 adopted by Italy in 1924 and C106, Convention on Weekly Rest in Commerce and Offices of 1957 adopted in 1963 143

144

C175 Convention on Part-Time Work of 1994 adopted in 2000

C81 Convention on Labour Inspection of 1947 adopted in 1952 and C129, Convention on Labour Inspection in Agriculture of 1969 adopted in 1981 145

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Safety and Health in the sector of Construction 146 and some more specific conventions on radiation protection, on hygiene in commerce and offices, on Chemicals, on Working Environment about Air Pollution, Noise and Vibration147. An important instrument about the effects of an unhealthy working environment closes the list, the Convention on Occupational Cancer148 been adopted in 1981. The list of Conventions having a not-in-force status regarding Italy still appears quite long. The list has necessarily to start with three conventions that are quite general in the sector of application but very precise in the scope: workers safety and health. These are namely Convention on Occupational Safety and Health, the one on Occupational Health Services and the one on Promotional Framework for Occupational Safety and Health149. There are then more specific conventions on the side of their theme like Convention on Night Work150 and Convention on Prevention of Major Industrial Accidents151, and other on the side of the sector like Convention on Asbestos, Convention on Safety and Health in Mines and Convention on Safety and Health

146

C167, Convention on Safety and Health in Construction of 1988 adopted in 2003

C115 Convention on Radiation Protection of 1960 and C120 Convention on Hygiene in Commerce and Offices of 1964 adopted in 1971, C170 Convention on Chemicals of 1990 adopted in 2002, C148 Convention on Working Environment about Air Pollution, Noise and Vibration adopted in 1985. 147

148

Convention 139 on Occupational Cancer of 1974 adopted in 1981

C155, Convention on Occupational Safety and Health of 1981, C161, Convention on Occupational Health Services of 1985 and C187, Convention on Promotional Framework for Occupational Safety and Health of 2006 149

150

C171, Convention on Night Work of 1990

151

C174, Convention on Prevention of Major Industrial Accidents of 1993

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

in Agriculture152.

The decent Italian labour law In this second part of the chapter the focus will be on practical appliance of decent work concepts in Italian Labour Law. With this aim this review will follow the same four-pillars structure of the ILO agenda. Looking at the fundamental source of the Italian law, the Constitution of the Italian Republic153 , it is self-evident what importance the constituents have given to the link between labour and society. Within fundamental principles, consisting in the first twelve articles of the text, opening four are indeed in whole or in part focused on this link. Article 1 starts founding the entire order of the Italian Republic on labour154, where article 2 explicates the relationship between the expression of human personalities to the social dimensions and recalls “duties of political, economic and social solidarity155”. Article 3 states “It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country156”. The first paragraph of Article 4 recognises to every citizen the right to work, citizens are safeguarded against limitative state initiatives but state has also the duty to intervene on the economy to promote C162 Convention on Asbestos of 1986, C176 Convention on Safety and Health in Mines of 1995, C184 Convention on Safety and Health in Agriculture of 2001. 152

Constitution of the Italian Republic. Quotations in this document are all taken from the official translation published by Parliamentary Information, Archives and Publications Office of the Senate Service for Official Reports and Communication. 153

154

Ibid.

155

Ibid.

156

Ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

jobs creation 157 . This principle is valid in particular in the case of work integration as the last three paragraphs of article 38 state ”Disabled and handicapped persons are entitled to receive education and vocational training. Responsibilities under this article are entrusted to entities and institutions established by or supported by the State. Private-sector assistance may be freely provided”. Moreover in the second part of article 4 citizens are charged of a particular duty to perform “according to personal potential and individual choice”, “an activity or a function that contributes to the material or spiritual progress of society”, this is considered the constitutional definitions of work. Title 3 of part I of the Constitution refers to Economic Rights and Duties, in particular by article 35 “The Republic protects work in all its forms and practices” and promotes vocational training as capacity building in the way it ”provides for the training and professional advancement of workers”. In addition, this article provides a direct linkage to International Labour Law since the Republic also “promotes and encourages international agreements and organizations which have the aim of establishing and regulating labour rights158”. By article 36 “Workers have the right to a remuneration commensurate to the quantity and quality of their work and in any case such as to ensure them and their families a free and dignified existence” also here results clear the link to decent work by term being used in official Italian version where dignified is dignitosa, the same adjective rendering decent in later documents. Moreover by the same article “Maximum daily working hours are established by law. Workers have the right to a weekly rest day and paid annual holidays. They cannot waive this right” where a prohibition reinforces the right to rests. In article 37 “Working women” are protected from discrimination “since they

157

MANCINI, p. 219

158

MANCINI, Ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

“are entitled to equal rights and, for comparable jobs, equal pay as men”. The same paragraph Working conditions must allow women to fulfil their essential role in the family and ensure appropriate protection for the mother and child”. The next paragraph delegates Law to prevent Child labour establishing “the minimum age for paid labour”. Following paragraph states otherwise “The Republic protects the work of minors by means of special provisions and guarantees them the right to equal pay for equal work”. Under article 38 “every citizen unable to work and without the necessary means of subsistence is entitled to welfare support” the link to social protection is then recalled going on: “Workers have the right to be assured adequate means for their needs and necessities in the case of accidents, illness, disability, old age and involuntary unemployment. Disabled and handicapped persons are entitled to receive education and vocational training. Responsibilities under this article are entrusted to entities and institutions established by or supported by the State. Private-sector assistance may be freely provided” Provisions contained in Article 39 fall under Social dialogue, in particular freedom of association and collective bargaining as Italian “trade unions may be freely established” and “no obligations may be imposed on trade unions other than registration at local or central offices, according to the provisions of the law”. Then the article deepen the quality aspect provisioning “that the statutes of the trade unions” has to “establish their internal organization on a democratic basis” and effectiveness stating that “registered trade unions are legal persons” and “they may, through a unified representation that is proportional to their membership, enter into collective labour agreements that have a mandatory effect for all persons belonging to the categories referred to in the agreement”. Article 40 remits right to strike specific law provisions. Article 41 sanctions freedom as an intrinsic feature of private economic entrepreneurship. Although second comma bans any entrepreneurial behaviour being “carried out against the common good or in such a manner that could

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

damage safety, liberty and human dignity” with another clear remand to decency as an unavoidable feature of work. But it is in the third comma that this condition becomes fully explicit, to the extent that “the law shall provide for appropriate programmes and controls so that public and private-sector economic activity may be oriented and co-ordinated for social purposes”. In this way the main objective of every regulation on economic activity may be assuring social progress as principal end. Article 4 of the Italian Constitution asserts “The Republic recognises the right of all citizens to work and promotes those conditions which render this right effective”. As said before this paragraph is intended not only to avoid State limitative initiatives but also to fix mandatory interventions on the labour market in difficulty situations (whatever at enterprise, local or national level). At the same time by article 4 ”Every citizen has the duty, according to personal potential and individual choice, to perform an activity or a function that contributes to the material or spiritual progress of society.” Art 38 refers to crisis contingencies stating, “Workers have the right to be assured adequate means for their needs and necessities in the case of […] involuntary unemployment”.

Strategic objective 1) Promoting employment Unemployment combating instruments have been implemented in Italy since the beginning of nineteenth century under the bureaucratic umbrella of the term collocamento, developing a system aimed to register the state of the labour market, produce unemployment lists and organize work seekers by a number159. Only at the end of the century, in 1997160, Italian government produced a

159

ROCCELLA, M. (2008) Manuale di Diritto del Lavoro, p.81.

160

Actually the reform took origin from a sentence of the European Court of Justice (the 55/96

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

substantial reform in the field through a model oriented to implement real active labour policies161. The reform, taken on with legislative decree number 469 of 1997, was aimed to overcome this bureaucratic, centralized and monopolistic management of labour market. Principles guiding the reform were labour services organization at local level and the end of the central state monopoly on labour market agencies. Legislative decree number 276 of 2003 represents another step in this direction defining the procedure and characteristics for private labour agencies to enter the national register. Following Convention 88 of 1948 on employment service ratified on 30th July 1952 with the adoption of law 1089 and Convention 96 of 1949 on fee-charging employment agencies ratified with law 1305 of 2nd August 1952, the most important role in active labour policies implementation is given to local labour offices under the direction of local governments. These are called, under article 2 of Legislative decree number 469 of 1997162, to take all possible initiatives to make labour market working better, through a perfect cross between labour offer and labour demand, mainly facilitating information163. As can be seen the whole system is based on the central role of information in labour market, as part of unemployment can derive from lack of information on demand on the side of workers and on offer on the side of companies and public administration164. With this objective the Borsa continua nazionale del lavoro has been created, with Legislative decree number 276 of 2003, “to collect all useful information […] coming […] from both public o private agents […], both

Job Centre) judjing ineffective and against European Community principles, the monopolistic system of Italian Collocamento. 161

ROCCELLA, M. (2008), ibid., p.99.

162

See in particular letters l and m of article 2.

163

ROCCELLA, M. (2008), ibid, pp. 83, 99.

164

ROCCELLA, M. (2008), ibid, p. 99.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

directly from workers and employers165”. The same act enabled, as said, private agencies to cover five fundamental functions: temporary and permanent work provision, intermediation, workers research and selection, support in professional reallocation166. Fundamental characteristics of services by these agencies are to be completely free for workers and without any discrimination in the selection procedure167. With law 845 of 21st December 1978 also training and life long learning have been recognized as an instrument of an active labour policy. Later training has been recalled, by legislative decree 181 of 2000, as one of the aims of local agencies with particular reference to weakest parts of population with the objective of combating long-term unemployment168.

Strategic objective 2) Social Protection As for the Social protection and following two elements is quite difficult to define precise boundaries the scheme followed in this exposition is taken from the National Labour Law Profile169 developed for the ILO by three experts, three Italian Judges specialized in labour law170. First point to be treated in the social protection field is maternity protection,

Translation of the 1st paragraph of article 15 of legislative decree number 276/2003, Roccella reminds direct linkage to the 1st paragraph of article 120 of the Italian constitution by which local governments can’t limit citizens in the right to work to be joined in any part of the nation. 165

166

MAZZOTTA, O.(2011), Diritto del Lavoro, p.381.

167

MAZZOTTA, O.(2011), ibid, p.384.

168

ROCCELLA, M. (2008), ibid. pp.100-101, see also MAZZOTTA, O.(2011), supra ibid, p.378.

http://www.ilo.org/ifpdial/information-resources/national-labour-law-profiles/WCMS_ 158903/lang--en/index.htm 169

Aldo De Matteis is Judge of the Supreme Court of Cassation – Labour Chamber, Paola Accardo is Judge of Court of Appeals – Labour Chamber of Milano and Giovanni Mammone is Judge appointed to the supreme Court of Cassation – Labour Chamber. 170

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Female workers in Italy have special protection in case of pregnancy and maternity under article 2110 of Civil code that can be considered a sort umbrella social protection norm generally regarding cases of accidents, sickness and maternity and recalling to specific norms for different cases. Act 1204 of 30 December 1971 specifically refers to mothers-workers protection. In particular compulsory maternity leave of five months for workers until minimum three months after childbirth and the fact that dismissal (on the part of employer, except for just cause) is forbidden from the beginning of pregnancy to one year after childbirth and if the mother decides to resign receives the same indemnities of dismissals are principal aspects of the norms in protection of this aspect of social life. Some of the rights under act 1204/1971 have been later extended to fathers and paid leave (reduced to three months) has been introduced also for parents of adopted children. In following years, parental leaves are permitted up to a total maximum of ten months in the first year of child’s life under 53 and 388 of 2000. Both parents have right to leave in the case of child’s illness until his age is of eight years. Legislative Decree 151 of 26 March 2001 resumes most of the above norms into a single text named Testo unico delle disposizioni legislative in materia di tutela e sostegno della maternità e della paternità. Other reasons could justify leaves by employees from their workplace. Leave in the case of worker’s sickness with full pay is assured. Workers have the right to suspend the contract, conserving the job for an average maximum continued period of one year. This aspect is differently regulated by various national labour contracts. Educational Leave is previewed with the right to paid days off work for students to take exams during regular study courses. Under act 53 of 8th March 2000, dedicated inter alia to education and social solidarity leaves, great consideration is given to general and professional education. Employees that have been working for a minimum of 5 years have the right to 11 months unpaid leave to attend schools, universities or other

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

educational training. Many other benefits come from national collective agreements, such as the provision of a number of paid hours to attend courses related or not to their professional activity. Act number 300 of 1970 also named workersâ&#x20AC;&#x2122; statute accords leave for persons elected to public offices or in unions, these leaves are unpaid but with conservation of professional position. Special leaves or unpaid absences are granted to workers by collective contracts on the occasion of important family events. For example for their wedding workers usually have the right to 15 days of paid leave. Fundamental importance in the social protection provisions, as national as international, is given to minimum age for working article 37 of the Italian Constitution provided that it must be settled by Statutory Law. Implementing the European Community Directive number 33 of 1994 with act number 345 of 1999 and in act 262 of 2000, the Italia government established the minimum age at the end of compulsory schooling but not less than 15 years. This provision fully respects the Minimum Age Convention number 138 of 1973. The same law of 199 regulated special protections for working minors such as medical checks, working hours limitations and prohibition of night work. Referring to article 2 of Civil code, although capacity to act is given to citizens older than 18 years, working minors can also exercise the rights and actions deriving from a labour relationship. ILO fundamental convention number 182 on Worst Forms of Child Labour has been almost immediately implemented with act 148 of 25th May 2000 fully accepting and directly referring to the text. Equality of all citizens before the law without difference of sex, race, language, religion, political views, personal and social position is assured by article 3 of Italian Constitution. Additionally, article 15 of the workersâ&#x20AC;&#x2122; statute cited here before (act 300, 20 May 1970) prohibits any discriminatory agreement or action of the employer which constitutes discrimination for these reasons, act 903 of 9th December 1977 explicitly recognizes equality between men and women in all 51

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

the aspects of working life. Act 604, 15 July 1966, and later wider act 108 of 11 May 1990, prohibit dismissal for discriminatory reasons, such as race, sex, language, political and union views, religion; second act requires always the reinstatement of the dismissed worker. The Constitutional Court has ruled that equality is a fundamental right of foreigners as well, under article number 48 of the European Economic Community Treaty for European citizens, under act 40 of 6th March 1998 for other nationalities workers regularly resident. In order to combat all these kinds of discrimination at work, a fast track legal procedure has been established on the basis of different rules from case to case. On the economic side of social protection the Italian Constitution includes in article 36 the right of all workers to what could be considered a decent wage for the worker himself and his family. Also if there is not a statutory minimum wage fixed most of the collective contracts actually cover this aspect. Upon request, this aspect could be fixed also by judicial procedure, in all the cases binding only on the parts intervened in the procedure. These rights are considered valid also in relation to risks related to enterprises lifecycles. With the objective to protect workers against negative contingencies, act 788 of 1952 established a national scope fund called Cassa Integrazione Guadagni, now regulated by act number 223 of 1991. When created, it covered only industrial enterprises but it was progressively enlarged to covers also small building enterprises, agricultural enterprises, the commercial sector, journalists in press and TV, some categories of self-employed workers (e.g. workers in workersâ&#x20AC;&#x2122; cooperatives), and in general other specific categories of workers in specific events such as natural disasters or regional or sectorial economic crisis. Workers whose contracts of employment have been suspended on these grounds can be paid 80% of their previous earnings up to fixed roofs and with possible renewal for up to 12 months. If the enterprise fails, the employment relationship is not interrupted due to bankruptcy, under article 2777 of the Civil Code workersâ&#x20AC;&#x2122; claims come in order

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

of priority just after taxes and court fees over the employer’s estate, also if secured creditors have to be paid before in respect of the employer’s assets assuring specific mortgages. Also the employees of entrepreneur’s contractors can act directly against the employer within the limit of the sums he is in debt towards the contractor under article 1676 of Civil code. Directive 80/987 of the European Union on the protection of workers’ claims in case of insolvency of their employer has been implemented by government legislative decree number 80 of 1992. Under this law there is a Fondo di garanzia dei crediti di lavoro(Wage Guarantee Fund) administered under the INPS (National Social Security Institute), which takes up the payment of some specified workers’ claims in cases of insolvency of the employer. Salaries corresponding to the three final months of the employment relationship are protected by this fund. Pursuant to article number 2 of Act 297 of 29 May 1982, the Guarantee Fund also protects severance pay.

Strategic objective 3) Social dialogue As seen in the first chapter social dialogue element is based on the possibility for workers to be represented in various aspect of working life. In the first paragraph of this chapter has been recalled that article 19 of the Italian Constitution recognizes the right of citizens to associate freely and the right of employers and employees to join associations or unions. Article 39 regulates trade unions that only have to be registered and have a democratic structure of representation in order to make collective agreements valid erga omnes171. In

Authors notice that this provision has not been enforced because a bill regulating the registration of unions has never been adopted. Therefore, in Italy unions do not need any recognition and can organize themselves without any pre-established legal model. They can conclude collective agreements, which are legally enforceable under civil law rules, i.e. on the assumption that the parties to a collective agreement have stipulated on behalf of their respective membership. 171

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

practice the employers usually respect collective agreements concluded by the most important unions and employers’ associations and pay wages in accordance with them for all their employees. Article 14 of act number 300 of 1970, the already cited Workers’ Statute recognizes freedom of association and freedom of trade union activity. The law, otherwise, does not fix any model of union organization either for the unions or for the employers’ associations. For workers associations the most frequently developed pattern is the industry-wide union structured as a vertical organization and these unions can join together in trade union federations. Employers, on the other hand, organize applying a similar model of organization, with provincial, regional and national associations, that join to form federations, one for each sector: industrial, commercial and artisan. Unions are financed by members, under article 26 the unions can take union dues directly from the employee’s wages. Anti-union behaviors by employers are normed by article 28 stating that if the employer tries to hinder or limit the exercise of freedom of association and trade union activities, or the right to strike, he can ordered by a local judge to desist from his illegal conduct. These illegal behaviors include in case law dismissal of workers on strike, replacing workers on strike, retaliation against workers that undertake legal strike action, failure to inform the unions on issues regulated by collective agreements, direct bargaining with the workers, not reserving a room for union meetings inside the factory and some other cases. With respect to collective bargaining, as seen, trade unions can negotiate collective agreements on the basis of the most representative association principle, under article 17 of Law 936 of 1986, these agreements and accords must be registered with within 30 days after they have been concluded. The Collective Agreements Archives can be consulted online. Collective bargaining can regulate all aspects of the employer-employee relationship, except those that are regulated by law. However collective agreements are binding only on

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

the signing parties, as well as the employers and workers legally represented by such parties. Nonetheless, the judges can take into account the minimum wage and other parameters that have been fixed in the agreement as a parameter in view of fixing a fair salary pursuant to article 36 of the Constitution. In a system like this the unions joining the biggest federations have a very important function in collective bargaining both in public employment both at the plant level. Workers’ Statute regulates plant level union activity specifying in article 19 that workers can choose representatives, who form plant level union bodies. These representatives have particular rights fixed by the Workers’ Statute, like the right to call meetings and referendums of workers. For public employees there is a different system of workers’ representation under act 29 of 3 February 1993, but the rights are the same. Collective agreements regulate election and duration of office of workers’ representatives. Strikes are recognized as a right of workers by the Constitution, under article 40 they must be exercised within the limits fixed by the law. However, only one law exists, that regulates the right to strike, and that is act 146 of 12 June 1990 regarding public essential services. Where a strike occurs in such services, a minimum service shall be guaranteed, agreed with the administration. Act 83 of 11 April 2000 extended these prescriptions to the public essential services fulfilled by other categories such as self-employed workers, professionals and artisans, such as lawyers, doctors, taxi-drivers, and petrol stations. Military personnel and policemen can absolutely not strike, for others, like seafarers the right to strike has some limits. Out of a trade union context, such as for single workers disputes, workers must have the right to be represented also legally. Labour Courts are integrated into the organization of the general civil court system, but follow special procedure. Under act 533 of 1973 special rules reduce the amount of written material at a labour trial, increase participation by the litigants, and speed up the trial. Like in the civil system, there is one professional judge in the first instance, whatever

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

the monetary amount of the case, whose decisions can be appealed before a Tribunal of three judges, with a possible further appeal before the five member Supreme Court Labour Chamber.

Strategic objective 4) Rights at Work Tractation of Rights at work pillar is at first strictly related to the right to be certain to receive from work resources permitting to conduct a decent life. For this reason the contract of employment in Italian system is considered indefinite except in cases specified by legislation. Under legislative decree number 368 of 2001 implementing European Community directive number 70 of 1999, fixedterm contracts of employment are permitted by law only in front of specific reasons.

These

reasons

(technical,

productive,

organizational

for

substitution) must be specified in written form. In some cases the use of this kind of contract is explicitly forbidden, like in the case of substitution of workers under strike, of units in situation of under-production. The same act regulates also extensions of the term of contracts. Nevertheless, the employer may terminate the contract earlier for "just cause" under Sect. 2119 of Civil Code. The Civil Code provides that each contracting party of a contract of indefinite duration can terminate it, provided the notice period under article 2118 is respected, or without any notice in case of just cause under article 2119. Anyway, act 604 of 1966 limited the employerâ&#x20AC;&#x2122;s freedom to dismiss, for companies employing more than 35 people. This was then extended to all organizations regardless of size by Act 108 in 1990; now termination by the employer is only possible for a "justified reasonâ&#x20AC;? and provided that the notice period is respected; or without notice for a just cause (art. 2119, Civil Code). Termination without grounds is limited to trial periods, domestic workers, employees who have reached retirement age and directors. The contract of employment may also be terminated by the resignation of the

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

employee, provided a notice period is respected. However, in serious circumstances specified in article 2087 and 2119 of the civil code the notice period is not applicable. Collective dismissals are ruled by act 223 of 1991 with special procedures of information and bargaining with unions before terminating contracts, and special indemnities for the employees. Termination of the contract of employment, of any type and on whatever ground, even for dismissal for just cause or resignation, the employee is entitled to receive from the employer a severance payment which is considered to be a part of salary. As regards the time of work, article 36 of the Italian Constitution says that maximum working time must be fixed by law. The old Act number 692 of March 1923 provided that the hours worked by employees should not to exceed 8 hours a day or 48 hours a week, become 40 by Act number 196 of 1997, but self-executing limitations of European Economic Community Directive no.14 of 1993 and of European Community Directive no.34 of 2000 must be taken into account in the domestic law as implemented with legislative decree number 66 of 2003. In this way collective agreements determine the normal weekly working time, never over 40 hours. Work performed in excess of 40 hours a week is overtime, differently limited in various collective agreements.

Special pay increases are fixed by collective

agreements for overtime especially if worked on Sundays, on other holidays and night work. Working time is normally established by the employer, within the limitations cited above, and can be changed. That said, all workers have the right to rest one day a week under article 36 of the Constitution, normally on Sunday under article 2109 of the civil code. This 24 hour weekly rest period can be shifted only for special activities, dealt with by article 5 of act 370 of 1934. During festive days, recognized by special laws in 1949 and 1954 workers receive regular pay. If for technical reasons they have to work, they receive double pay and a further increase. Finally all workers have 57

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

the constitutional right to annual paid leave under article 36. Minimum leave is determined by collective agreements, generally not less than four weeks per year. Italy has ratified the ILO Holidays with Pay Convention number 132 of 1970 that provides for a minimum leave of not less than three working weeks for one year of service. The time at which the holiday is taken is in principle chosen by the employee.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

Name Hours of Work (Industry) Convention

Status (ILO) Instrument with interim status

Italy sit. Conditional ratification

Adoption date 6/10/1924

DW Component RaW

C002

Unemployment Convention

Instrument with interim status

In force

10/4/1923

Empl

1919

C003

Maternity Protection Convention

Instrument with interim status

In force

22/10/1952

1919

C004

Night Work (Women) Convention

Shelved convention

Denunciation 06 Aug 2001

10/4/1923

1919

C005

Minimum Age (Industry) Convention

Outdated instrument

1919

C006

Night Work of Young Persons (Industry) Convention

Instrument to be revised

In force

10/4/1923

1920

C007

Minimum Age (Sea) Convention

Outdated instrument

Automatic Denunciation 28 Jul 1981 by C138

14/7/1932

1920

C008

Instrument to be revised

In force

8/9/1924

1920

C009

Unemployment Indemnity (Shipwreck) Convention Placing of Seamen Convention

Outdated instrument

In force

8/9/1924

1921

C010

Minimum Age (Agriculture) Convention

Outdated instrument

8/9/1924

1921

C011

Instrument with interim status

8/9/1924

1921

C012

Instrument with interim status

In force

1/9/1930

1921

C013

Right of Association (Agriculture) Convention Workmen's Compensation (Agriculture) Convention White Lead (Painting) Convention

Automatic Denunciation 28 Jul 1981 by C138 In force

Instrument to be revised

In force

22/10/1952

RaW

1921

C014

Weekly Rest (Industry) Convention

Up-to-date instrument

In force

8/9/1924

RaW

1921

C015

Minimum Age (Trimmers and Stokers) Convention

Shelved convention

Automatic Denunciation 28 Jul 1981 by C138

8/9/1924

RaW - SP

1921

C016

Medical Examination of Young Persons (Sea) Convention

Instrument to be revised

In force

8/9/1924

1925

C017

Outdated instrument

1925

C018

Workmen's Compensation (Accidents) Convention Workmen's Compensation (Occupational Diseases) Convention

Outdated instrument

In force

22/1/1934

1925

C019

Equality of Treatment (Accident Compensation) Convention

Instrument with interim status

In force

15/3/1928

1925

C020

Night Work (Bakeries) Convention

Shelved convention

1926

C021

Inspection of Emigrants Convention

Shelved convention

1926

C022

Instrument to be revised

In force

10/10/1929

1926

C023

Seamen's Articles of Agreement Convention Repatriation of Seamen Convention

Outdated instrument

In force

10/10/1929

1927

C024

Outdated instrument

1927

C025

Outdated instrument

1928

C026

1929

C027

Sickness Insurance (Industry) Convention Sickness Insurance (Agriculture) Convention Minimum Wage-Fixing Machinery Convention Marking of Weight (Packages Transported by Vessels) Convention

1929

C028

Protection against Accidents (Dockers) Convention

Shelved convention

Year 1919

Number C001

1919

RaW SP SP

RaW

Instrument with interim status

In force

9/9/1930

Instrument to be revised

In force

18/7/1933

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1930

C029

Forced Labour Convention

Up-to-date instrument

In force

1930

C030

Instrument with interim status

RaW

1931

C031

Hours of Work (Commerce and Offices) Convention Hours of Work (Coal Mines) Convention

Withdrawn instrument

RaW

1932

C032

Protection against Accidents (Dockers) Convention

Outdated instrument

1932

C033

Outdated instrument

1933

C034

Shelved convention

Empl

1933

C035

1933

C036

1933

C037

1933

C038

1933

C039

1933

C040

1934

C041

Minimum Age (Non-Industrial Employment) Convention Fee-Charging Employment Agencies Convention Old-Age Insurance (Industry, etc.) Convention Old-Age Insurance (Agriculture) Convention Invalidity Insurance (Industry, etc.) Convention Invalidity Insurance (Agriculture) Convention Survivors' Insurance (Industry, etc.) Convention Survivors' Insurance (Agriculture) Convention Night Work (Women) Convention

1934

C042

Workmen's Compensation (Occupational Diseases) Convention

Outdated instrument

1934

C043

Sheet-Glass Works Convention

Shelved convention

1934

C044

Unemployment Provision Convention

Shelved convention

Shelved

22/10/1952

1935

C045

Underground Work (Women) Convention

Instrument with interim status

Denunciation 29 May 2008

22/10/1952

RaW

1935

C046

Hours of Work (Coal Mines) Convention

Withdrawn instrument

RaW

1935

C047

Forty-Hour Week Convention

Instrument with interim status

RaW

1935

C048

Shelved convention

1935

C049

1936

C050

1936

C051

1936

C052

Maintenance of Migrants' Pension Rights Convention Reduction of Hours of Work (GlassBottle Works) Convention Recruiting of Indigenous Workers Convention Reduction of Hours of Work (Public Works) Convention Holidays with Pay Convention

1936

C053

Instrument with interim status

1936

C054

Officers' Competency Certificates Convention Holidays with Pay (Sea) Convention

1936

C055

Shipowners' Liability (Sick and Injured Seamen) Convention

Instrument to be revised

1936

C056

Sickness Insurance (Sea) Convention

Outdated instrument

1936

C057

Hours of Work and Manning (Sea) Convention

Outdated instrument

Automatic Denunciation 07 Jun 2000 by C152

18/6/1934

RaW

30/10/1933

Shelved convention

Shelved

22/10/1947

Shelved convention

Shelved

22/10/1947

Shelved convention

Shelved

22/10/1947

Shelved convention

Shelved

22/10/1947

Shelved convention

Shelved

22/10/1952

Shelved convention

Shelved

22/10/1952

Shelved convention

RaW In force

22/10/1952

SP RaW

Shelved

22/10/1952

Shelved convention

SP RaW

Shelved convention Withdrawn instrument Outdated instrument

RaW Automatic Denunciation 28 Jul 1981 by C132 In force

22/10/1952

In force

22/10/1952

Outdated instrument

RaW

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1936

C058

Minimum Age (Sea) Convention

Instrument with interim status

Automatic Denunciation 28 Jul 1981 by C138

22/10/1952

1937

C059

Minimum Age (Industry) Convention

Outdated instrument

Automatic Denunciation 28 Jul 1981 by C138

22/10/1952

1937

C060

Minimum Age (Non-Industrial Employment) Convention

Shelved convention

Automatic Denunciation 28 Jul 1981 by C138

22/10/1952

RaW - SP

1937

C061

Withdrawn instrument

RaW

1937

C062

Reduction of Hours of Work (Textiles) Convention Safety Provisions (Building) Convention

Outdated instrument

RaW

1938

C063

Convention concerning Statistics of Wages and Hours of Work

Outdated instrument

1939

C064

Contracts of Employment (Indigenous Workers) Convention

Shelved convention

1939

C065

Shelved convention

1939

C066

Penal Sanctions (Indigenous Workers) Convention Migration for Employment Convention

1939

C067

Hours of Work and Rest Periods (Road Transport) Convention

Shelved convention

1946

C068

Instrument to be revised

In force

22/10/1952

1946

C069

Instrument to be revised

In force

22/10/1952

1946

C070

Food and Catering (Ships' Crews) Convention Certification of Ships' Cooks Convention Social Security (Seafarers) Convention

1946

C071

Seafarers' Pensions Convention

Instrument to be revised

In force

10/4/1962

1946

C072

Paid Vacations (Seafarers) Convention

Outdated instrument

1946

C073

Instrument to be revised

In force

22/10/1952

1946

C074

Instrument to be revised

In force

23/6/1981

1946

C075

Medical Examination (Seafarers) Convention Certification of Able Seamen Convention Accommodation of Crews Convention

1946

C076

Wages, Hours of Work and Manning (Sea) Convention

Outdated instrument

1946

C077

Medical Examination of Young Persons (Industry) Convention

Up-to-date instrument

In force

22/10/1952

1946

C078

Up-to-date instrument

In force

22/10/1952

1946

C079

Medical Examination of Young Persons (Non-Industrial Occupations) Convention Night Work of Young Persons (NonIndustrial Occupations) Convention

Instrument to be revised

In force

22/10/1952

1946

C080

Final Articles Revision Convention

1947

C081

Labour Inspection Convention

Final Article Convention, not examined Up-to-date instrument

Withdrawn instrument RaW

Outdated instrument

11/12/1947 In force

22/10/1952

Raw

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1947

C082

Social Policy (Non-Metropolitan Territories) Convention

Request for information

1947

C083

Labour Standards (Non-Metropolitan Territories)

Request for information

1947

C084

Right of Association (Non-Metropolitan Territories) Convention

Instrument with interim status

1947

C085

Labour Inspectorates (Non-Metropolitan Territories) Convention

Instrument with interim status

1947

C086

Contracts of Employment (Indigenous Workers) Convention

Shelved convention

1948

C087

Freedom of Association and Protection of the Right to Organise Convention

Up-to-date instrument

In force

13/5/1958

1948

C088

Employment Service Convention

Instrument with interim status

Denunciation 09 Aug 1971

22/10/1952

Empl

1948

C089

Night Work (Women) Convention (Revised)

Instrument with interim status

Denunciation 27 Feb 1992

22/10/1952

RaW

1948

C090

Night Work of Young Persons (Industry) Convention (Revised)

Instrument to be revised

In force

22/10/1952

1949

C091

Paid Vacations (Seafarers) Convention (Revised)

Shelved convention

Automatic Denunciation 28 Jul 1981 by C146

5/5/1971

1949

C092

Accommodation of Crews Convention (Revised)

Instrument with interim status

In force

23/6/1981

1949

C093

Wages, Hours of Work and Manning (Sea) Convention (Revised)

Outdated instrument

1949

C094

Labour Clauses (Public Contracts) Convention

Up-to-date instrument

In force

22/10/1952

1949

C095

Protection of Wages Convention

Up-to-date instrument

In force

22/10/1952

1949

C096

Fee-Charging Employment Agencies Convention (Revised)

Instrument with interim status

Automatic Denunciation 01 Feb 2000 by C181

9/1/1953

Empl

1949

C097

Migration for Employment Convention (Revised)

Up-to-date instrument

In force

22/10/1952

1949

C098

Right to Organise and Collective Bargaining Convention

Up-to-date instrument

In force

13/5/1958

1951

C099

Minimum Wage Fixing Machinery (Agriculture) Convention

Instrument with interim status

In force

5/5/1971

1951

C100

Equal Remuneration Convention

Up-to-date instrument

In force

8/6/1956

RaW

1952

C101

Holidays with Pay (Agriculture) Convention

Outdated instrument

Automatic Denunciation 28 Jul 1981 by C132

8/6/1956

RaW

1952

C102

Social Security (Minimum Standards) Convention

Up-to-date instrument

In force

8/6/1956

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1952

C103

Maternity Protection Convention (Revised)

Outdated instrument

Automatic Denunciation 07 Feb 2001

5/5/1971

1955

C104

Abolition of Penal Sanctions (Indigenous Workers)

Shelved convention

1957

C105

Abolition of Forced Labour Convention

Up-to-date instrument

In force

15/3/1968

RaW

1957

C106

Weekly Rest (Commerce and Offices) Convention

Up-to-date instrument

In force

12/8/1963

RaW

1957

C107

Indigenous and Tribal Populations Convention

Outdated instrument

1958

C108

Seafarers' Identity Documents Convention

Outdated instrument

In force

12/8/1963

1958

C109

Wages, Hours of Work and Manning (Sea) Convention (Revised)

Outdated instrument

1958

C110

Plantations Convention

Up-to-date instrument

1958

C111

Discrimination (Employment and Occupation) Convention

Up-to-date instrument

In force

12/8/1963

1959

C112

Minimum Age (Fishermen) Convention

Outdated instrument

Automatic Denunciation 28 Jul 1981 by C138

5/5/1971

1959

C113

Medical Examination (Fishermen) Convention

Instrument to be revised

1959

C114

Fishermen's Articles of Agreement Convention

Instrument to be revised

In force

10/4/1962

1960

C115

Radiation Protection Convention

Up-to-date instrument

In force

5/5/1971

RaW

1961

C116

Final Articles Revision Convention

Final Article Convention, not examined

1962

C117

Social Policy (Basic Aims and Standards)

Instrument with interim status

In force

27/12/1966

1962

C118

Equality of Treatment (Social Security) Convention

Up-to-date instrument

In force

5/5/1967

1963

C119

Guarding of Machinery Convention

Instrument to be revised

In force

5/5/1971

RaW

1964

C120

Hygiene (Commerce and Offices) Convention

Up-to-date instrument

In force

5/5/1971

RaW

1980

C121

Up-to-date instrument

1964

C122

Employment Injury Benefits Convention,[Schedule I amended in 1980] Employment Policy Convention

Up-to-date instrument

In force

5/5/1971

Empl

1965

C123

Minimum Age (Underground Work) Convention

Outdated instrument

Automatic Denunciation 28 Jul 1981 by C138

5/5/1971

1965

C124

Medical Examination of Young Persons (Underground Work) Convention

Up-to-date instrument

In force

5/5/1971

1966

C125

Fishermen's Competency Certificates Convention

Instrument to be revised

1966

C126

Accommodation of Crews (Fishermen) Convention

Request for information

23/6/1981

RaW

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1967

C127

Maximum Weight Convention

Instrument to be revised

In force

5/5/1971

RaW

1967

C128

Invalidity, Old-Age and Survivors' Benefits Convention

Up-to-date instrument

1969

C129

Labour Inspection (Agriculture) Convention

Up-to-date instrument

1969

C130

Medical Care and Sickness Benefits Convention

Up-to-date instrument

1970

C131

Minimum Wage Fixing Convention

Up-to-date instrument

1970

C132

Holidays with Pay Convention (Revised)

Instrument with interim status

In force

28/7/1981

1970

C133

Accommodation of Crews (Supplementary Provisions) Convention

Instrument with interim status

In force

23/6/1981

1970

C134

Prevention of Accidents (Seafarers) Convention

Instrument to be revised

In force

23/6/1981

1971

C135

Workers' Representatives Convention

Up-to-date instrument

In force

23/6/1981

1971

C136

Benzene Convention

Instrument to be revised

In force

23/6/1981

RaW

1973

C137

Dock Work Convention

Instrument with interim status

In force

23/6/1981

1973

C138

Minimum Age Convention

Up-to-date instrument

In force, >15 Yo

28/7/1981

1974

C139

Occupational Cancer Convention

Up-to-date instrument

In force

23/6/1981

RaW

1974

C140

Paid Educational Leave Convention

Up-to-date instrument

1975

C141

Rural Workers' Organisations Convention

Up-to-date instrument

In force

18/10/1979

1975

C142

Human Resources Development Convention

Up-to-date instrument

In force

18/10/1979

Empl

1975

C143

Migrant Workers (Supplementary Provisions) Convention

Up-to-date instrument

In force

23/6/1981

1976

C144

Tripartite Consultation (International Labour Standards) Convention

Up-to-date instrument

In force

18/10/1979

1976

C145

Continuity of Employment (Seafarers) Convention

Up-to-date instrument

In force

23/6/1981

1976

C146

Up-to-date instrument

In force

28/7/1981

1976

C147

Seafarers' Annual Leave with Pay Convention Merchant Shipping (Minimum Standards) Convention

Up-to-date instrument

In force

23/6/1981

1977

C148

Working Environment (Air Pollution, Noise and Vibration) Convention

Up-to-date instrument

In force

28/2/1985

1977

C149

Nursing Personnel Convention

Up-to-date instrument

In force

28/2/1985

1978

C150

Labour Administration Convention

Up-to-date instrument

In force

28/2/1985

Empl

1978

C151

Labour Relations (Public Service) Convention

Up-to-date instrument

In force

28/2/1985

SP In force

23/6/1981

RaW

Empl

RaW

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1979

C152

Occupational Safety and Health (Dock Work) Convention

Up-to-date instrument

In force

7/6/2000

1979

C153

Hours of Work and Rest Periods (Road Transport) Convention

Instrument to be revised

RaW

1978

C154

Collective Bargaining Convention

Up-to-date instrument

1978

C155

Occupational Safety and Health Convention

Up-to-date instrument

RaW

1978

C156

Workers with Family Responsibilities Convention

Up-to-date instrument

1978

C157

Maintenance of Social Security Rights Convention

Up-to-date instrument

1982

C158

Termination of Employment Convention

No conclusions

1978

C159

Up-to-date instrument

In force

7/6/2000

Empl

1978

C160

Vocational Rehabilitation and Employment (Disabled Persons) Convention Labour Statistics Convention

Up-to-date instrument

In force

8/11/1989

Empl

1978

C161

Occupational Health Services Convention

Up-to-date instrument

RaW

1978

C162

Asbestos Convention

Up-to-date instrument

RaW

1987

C163

Seafarers' Welfare Convention

Up-to-date instrument

1987

C164

Health Protection and Medical Care (Seafarers) Convention

Up-to-date instrument

1987

C165

Social Security (Seafarers) Convention (Revised)

Up-to-date instrument

1987

C166

Repatriation of Seafarers Convention (Revised)

Up-to-date instrument

1978

C167

Safety and Health in Construction Convention

Up-to-date instrument

1978

C168

Employment Promotion and Protection against Unemployment Convention

Up-to-date instrument

1989

C169

Indigenous and Tribal Peoples Convention

Up-to-date instrument

1978

C170

Chemicals Convention

Up-to-date instrument

1978

C171

Night Work Convention

Up-to-date instrument

1991

C172

Working Conditions (Hotels and Restaurants) Convention

Up-to-date instrument

1978

C173

Protection of Workers' Claims (Employer's Insolvency) Convention

Up-to-date instrument

1978

C174

Prevention of Major Industrial Accidents Convention

Up-to-date instrument

RaW

1978

C175

Part-Time Work Convention

Up-to-date instrument

1978

C176

Safety and Health in Mines Convention

Up-to-date instrument

In force

7/11/2002

In force

12/2/2003

RaW SP

In force

3/7/2002

RaW RaW

In force

13/4/2000

RaW RaW

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

1996

C177

Home Work Convention

Up-to-date instrument

1996

C178

Labour Inspection (Seafarers) Convention

Up-to-date instrument

1996

C179

Recruitment and Placement of Seafarers Convention

Up-to-date instrument

1996

C180

Seafarers' Hours of Work and the Manning of Ships Convention

Up-to-date instrument

1978

C181

Private Employment Agencies Convention

Up-to-date instrument

In force

1/2/2000

Empl

1978

C182

Worst Forms of Child Labour Convention

Up-to-date instrument

In force

7/6/2000

1978

C183

Maternity Protection Convention

Up-to-date instrument

In force

7/2/2001

1978

C184

Safety and Health in Agriculture Convention

Up-to-date instrument

2003

C185

Seafarers' Identity Documents Convention (Revised)

Up-to-date instrument

1978

C187

Promotional Framework for Occupational Safety and Health Convention

Up-to-date instrument

2007

C188

Work in Fishing Convention

Up-to-date instrument

2011

C189

Domestic Workers Convention

Up-to-date instrument

2006

MLC

Maritime Labour Convention

Up-to-date instrument

RaW

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

3. The DWA in practice: Social enterprises Following an in-depth analysis of the Decent Work paradigm in all its four interdependent components, attention is paid to the social enterprise concept and practice and their connections with the DWA. This chapter draws on the extensive conceptual research conducted by the EMES European Research Network over the last 15 years172. The main argument of this study is that given its social dimension, the social enterprise is expected to fully endorse the four characteristics of the Decent Work enterprise. The International Labour Organisation has built a long tradition and developed a thorough expertise on social and solidarity economy enterprises and organisations. Looking at the ILO history evidences of such a commitment are many: in the first year of its foundation the ILO set up a cooperative branch173, two years later the Governing Body directly cited the social economy in one of its proceedings, in the 80s the social finance concept was developed in the organisation’s works, in the 90s the ILO promoted community-based social protection schemes, finally in recent years the ILO showed a growing interest in social enterprises174. This process of evolution reflects the shifting undergoing

EMES – EUROPEAN RESEARCH NETWORK is a network of university research centres and individual researchers founded in 1996 by an international group of scholars under the sponsorship of the European Union. The organisation’s goal is to gradually build up a European corpus of theoretical and empirical knowledge, pluralistic in disciplines and methodology, around “Third Sector” issues. It is formally established as a non-profit association (ASBL under Belgian law) in 2002 and named after its first research programme, on "The emergence of social enterprises in Europe”. 172

ILO – ITC (INTERNATIONAL TRAINING CENTRE)(2011), The reader 2011: Social and solidarity economy, Our common road towards decent work, p.vi. The International Training Centre of the ILO is an advanced vocational training institute established in 1964 in Turin by the International Labour Organization and the Italian Government with the mission to be the leading global provider of learning and training for the world of work. 173

174

ILO – ITC (2011) ibid. p. 89.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

by contemporary society from a welfare state to a new welfare mix where responsibility is shared among public authorities, for-profit providers and thirdsector organisations on the basis of strict criteria of both efficiency and fairness175. In this approach social enterprises have the potential to conjugate the decent work conceptual high orienting power into practice in local contexts.

Social enterprise: a definition As today universally recognized by debates spacing from Corporate Social Responsibility and social return on investments, till the carbon-footprint, the current model of capitalism has generated prosperity and improved the quality of life, but not without undesirable environment and social consequences176. For-profit business are now tackling also these kinds of issues whereas nonprofits are developing sustainable business models, and governments are forging market-based approaches to service delivery177. Within this blurring context a different model of enterprise is emerging, driven by values other than profit, and motivated by social aims178. According to the social enterprise definition adopted by the EMES Network, the social enterprise is a private autonomous institution that is engaged in the supply of services and goods with a merit or general-interest nature in a stable and continuous way179. The concept of social enterprise was used for the first

DEFOURNY, J. (2001) From third sector to social enterprise in BORZAGA, C., DEFOURNY, J. (2001) The emergence of Social Enterprise, p.2. 175

SABETI, H. (2011/November) The for-Benefit Enterprise, A fourth sector of the economy is emerging, with the power to transform the course of capitalism, p.3. 176

177

SABETI, H. (2011), ibid. p. 3.

178

SABETI, H. (2011), ibid.

GALERA, G., BORZAGA, C. (2009) Social Enterprise, An international overview of its conceptual evolution and legal implementation. 179

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

time in the 1980s to describe innovative private initiatives promoted by Italian volunteer groups with the goal of delivering social or educational services or facilitating work integration of disadvantaged people180. Similar initiatives were developed by groups of volunteers also in other parts of Europe following the deep crisis that affected the traditional welfare state model in the end of the 1970s 181 . The growing limitations of the traditional welfare state, which gradually became apparent, stimulated an active reaction of the civil society through the bottom-up creation of new types of organisations explicitly aimed at pursuing general-interest goal 182 . This new trend involved both traditional organisations

(e.g.

associations),

which

were

refashioned

new

entrepreneurial dynamic, and newly established organisation183. This process of transformation contributed to shaping a new phenomenon, which has been termed social enterprise 184 . The declared community orientation of social enterprises has encouraged their expansion in the provision of general-interest services, including social services, community services, educational services addressed to the entire community, as well as services targeting fragile groups of citizens185. Drawing on the EMES definition, social enterprises are characterized by both an entrepreneurial and social dimension. These organisations are defined as enterprises by reason of four characteristics: a continuous activity of producing goods and services, a high degree of autonomy, a significant level of economic

180

BORZAGA, C., GALERA, G. (Unpublished), Legal frameworks for social enterprises in Europe.

BORZAGA, C., SANTUARI, A. (2000) The Innovative Trends in the Non-profit Sector in Europe: The Emergence of Social Entrepreneurship, p. 12 181

182

DEFOURNY, J. (2001) From third sector to social enterprise, p. 3.

183

Ibid, p. 4.

184

Ibid.

185

GALERA, G., BORZAGA, C. (2009), supra, note 8,ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

risk and the presence of paid work and a market orientation186. The same organisations have also a strong social dimension that leads them to be called social enterprises in reason of five characteristics: the initiative is undertaken by a group of citizens, the organisation is explicitly aimed at benefiting the community, the direct participation of beneficiaries is furthered, an internal governance not based on capital shares is adopted, the organisation complies with a limited distribution of profits187. In particular they are enterprises firstly because of continuity in producing and selling goods and services that distinguishes social enterprises from traditional non-profit organisations, usually aimed to promote advocacy activities and redistribute financial resources. An high degree of autonomy is the second distinguishing aspect of these organisations that are voluntary created by a group of people and independently governed and hold on to both the right of voice and exit also if partly financed by public subsidies. As all other enterprises, social enterprises take a significant economic risk connected to economic sustainability of the initiative itself but also to voluntary efforts by their members to secure adequate resources. Finally, also if combining monetary and non-monetary resources, voluntary and paid workers, these organisations require a minimum amount of paid work188. The social dimension of this peculiar kind of enterprise primarily stems from their explicit aim oriented to benefit the community in which it operates or a specific group within it, aiming at the same time either to increase social inclusion, or to promote a sense of social responsibility at local level, as a sort of social return on their activities. Social enterprises result from collective dynamics within the community. Decision-making processes are not run on a

186

DEFOURNY, J. (2001) ibid. p. 16-17.

187

Ibid.

188

Ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

capital shares ownership basis but on a multi-stakeholder one. Democratic participation or representation of stakeholders in a participatory management model is another important social feature of these organisations. Connected to this is also a full or partial limitation to the possibility to distribute profits, avoiding in this way a profit-maximising behaviour189. Evidently this definition has to be considered as a working definition, developed with the principal aim to conduct the reader like a compass in the direction of the ideal type of Social Enterprise190. The spectrum of enterprises that can be contained in this definitional panorama is certainly very wide and initiatives will respect such a definition at various degrees 191 . However it is important to recognize the features distinguishing these organizations from others in the third sector, insomuch as some looks at them as a rising fourth sector of the economy192. The fast developing phenomenon of social enterprise, that has the potential to deal in an innovative way with current challenges strongly impacting upon society, can be depicted as a structural dynamic since it encompasses different countries with different characteristics in terms of welfare state systems, cultural backgrounds and level of economic development193. The attractiveness of these organisations is empirically confirmed by the many new legal frameworks and support policies that have been introduced in many European countries194. Two phases can be identified in Europe as far as the legal evolution of social enterprises is concerned195. Initially, most social enterprises have been

189

Ibid, p. 18.

190

Ibid.

191

Ibid.

192

See in general SABETI, H. (2011), supra, note 5.

193

GALERA, G., BORZAGA, C. (2009), supra, note 8.

194

See GALERA, G., BORZAGA, C. (2009), ibid.

195

ILO â&#x20AC;&#x201C; ITC (2011), supra, note 3, ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

set up through the use of the legal forms of cooperative and association and in a number of several cases this continues to be the case. Social enterprises were initially established as associations in those countries where the legal form of association allows for a degree of freedom in selling goods and services on the open market, such as for instance France and Belgium. In countries where associations are more limited in this regard, such as the Nordic countries and Italy, social enterprises were more often created under the legal form of cooperative. Cooperatives are more interesting as they have a clear entrepreneurial nature. The second trend is characterized by the adoption of specific legal forms either via the adaptation of the cooperative formula or through the introduction of legal brands and categories that recognize the social commitment taken on by certain economic entities. The trend of recognizing social enterprises via the cooperative formula was marked by the acknowledgment of specific activities (supply of social services or work integration) carried out beyond the boundaries of the cooperative membership. This trend undermines the traditional model of cooperatives, which is based on a single stake-holding system and it is supposed to promote the interests of its members196 . It started formally in Italy in 1991 when the law N째 381 on social cooperatives provided the legislative framework for a phenomenon, which had developed spontaneously in the previous twenty years197 .

Conjugating Decent Work As said, the social enterprise model can be depicted as a practical conjugation of

196

LEVI, F. (1999)

197

BORZAGA, C., IANES, A. (2006), ibid.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

the decent work paradigm. The social enterprise provides indeed a solid foundation for promoting decent work and, more specifically, for adapting and implementing the agenda within the peculiar characteristics of local contexts198. Furthermore social enterprises are likely to work in any field of activity that is of interest of the community as a whole or to specific disadvantaged segments of the population199. This analysis will approach separately the four components making up the concept of decent work with the aim to define how they are, or can be, put into practice in or by social enterprises. The “employment promotion element” aims, as has been said in the first chapter, to establish an economy that generates opportunities for investment, entrepreneurship, skills development, job creation and sustainable livelihoods. Social enterprises can give a big contribution to this in particular in reference to the weakest parts of society resulting to be the most affected by the recent contraction of states’ employment policies and labour market failures 200 . Indeed, recent trends in global economy, while raising the level of unemployment and making work more precarious, have also contributed to social exclusion especially of disadvantaged workers 201 . When compared to public agencies, work integration social enterprises have a competitive advantage in this field. While facilitating the work integration and training of disadvantaged workers, work integration social enterprises stimulate also the their productivity of their workers inasmuch they have to operate in a financially sustainable way. This allows for the effective enforcement of the position of

198

ILO – ITC (2011), supra, note 3, ibid.

199

ILO – ITC (20111), ibid.

AIKEN, M., SPEAR, R (2005), Work Integration Social Enterprises in the United Kingdom, EMES working paper 05/01 200

see SPEAR, R., BIDET, E. (2005) Social Enterprise for Work Integration in 12 European Countries: A descriptive Analysis 201

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

workers202 . Moreover, generally speaking, social enterprises contribute to create new employment also in reason of their growing relevance in the provision of general interest services, notoriously a sector with high employment potential203. The “social protection element” is described by the ILO itself as composed of three main objectives: extending the coverage and effectiveness of social security schemes; promoting labour protection (including conditions of work, wages, timing and occupational safety and health); and protecting vulnerable groups204. Its central focus is the promotion of both inclusion and productivity by ensuring that women and men enjoy working conditions that are safe, allow adequate free time and rest, take into account family and social values, provide for adequate compensation in case of lost or reduced income and permit access to adequate healthcare. On the one hand, this element partially overlaps with the employment promotion element given the attention paid to inclusion. On the other hand it encompasses also the worker’s private sphere. This element is fully endorsed by social enterprises because they are expected to pursue the general interest of the community in the human promotion and social integration of citizens. The commitment of social enterprises in promoting social protection has been stimulated –and it is expected to increase in importance over the next years- by the growing limitations of the traditional welfare state205. The “social dialogue element” is incorporated by social enterprises that have a

see AIKEN, M., SPEAR, R (2005),ibid. NYSSENS, M. (2006) Social Enterprise: At the crossroads of markets, public policies and civil society 202

203

see GALERA, G. (2010) Social Enterprises and the Integration of Disadvantaged Workers

204 ILO, Decent Work Agenda website [http://www.ilo.org/global/about-the-ilo/decent-workagenda/social-protection/lang--en/index.htm] 205

see BORZAGA, C., DEFOURNY, J. (2001), The Emergence of Social Enterprise

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

role in establishing innovative models of industrial relations 206 . Social enterprises often use tools, such as networking, inclusive governance models and local partnerships to promote social dialogue, build consensus on employment and also influence public policies207. Thanks to the internal system of governance social enterprises adopt, which sometimes facilitates the engagement of different stakeholder groups in the membership and governing bodies (e.g. multi-stakeholder approach), social enterprises put the decent work paradigm in practice. The multi-stakeholder approach makes it easier to tailor the supply of goods and services to users’ needs and contributes to strengthening the local embededness of the enterprise208. Consequently there is a large use of participatory decision making and a consolidated internal democracy, that are for sure good indicators of the level of practical implementation of social dialogue. Furthermore, the organizational strategy to group into second-level organisations (e.g. consortia and federations as will be seen also in the following case study) allows to perform lobbying and policy functions with positive returns for society at large. The “rights at work element” aims to obtain recognition and respect for the rights of workers. All workers, and in particular disadvantaged or poor workers, need representation, participation, and laws that work for their interests. The capacity of social enterprises to promote this element can be seen from various perspectives209. The already mentioned democratic forms of work organisation that are often adopted by social enterprises tend to enhance workers’ participation in decision-making and allow them to directly contribute to

BORZAGA, C., TORTIA, E. (2007), Social Economy Organisations in the Theory of Firms, see also BORZAGA, C., DEPEDRI, S. (2005) Inter-personal Relations and Job Satisfaction 206

207

BORZAGA, C., GALERA, G. (2011) Social Enterprises and Decent Work

208

Ibid.

BORZAGA, C., MONGERA, M., GIOVANNINI, M. (2009) Work Integration in the Open Labour Market: Lessons from Italian social cooperatives. See also GALERA, G. (2010), supra, note 29. 209

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defining effective work policies on wages, timing and conditions of work210. Moreover, ensuring better working conditions further improves workers’ wellbeing with positive externalities on society at large.

Social enterprises in Italy A number of factors render the Italian social enterprise experience particularly interesting and worth studying. The concept of social enterprise was used in Italy for the first time in Europe. It started to be employed in the 1990s to name a journal, edited by a consortium of social cooperatives with the goal of identifying and analysing those economic initiatives pursuing social aims that had developed over the previous decade211. Another interesting aspect of the Italian case is the long valued history of the social enterprise phenomenon and the availability of a big amount of data and research materials produced by both official statistics and universities. The advanced legal regulation characterizing the Italian context contributes further to render Italian social enterprises worth analysing. A brief look at the seize of social enterprises confirms the importance of this emerging sectors. According to recent data, in Italy there are 13.020 active social enterprises 212 which account for about 347 thousand employees, representing a percentage of 3,3 per cent of the total of number of employed people in the country213 . With reference to the composition of the economic sectors of activity, most social enterprises, about 92 per cent, are engaged in the

210

ILO – ITC (2011), supra, note 3, ibid.

211

Impresa Sociale, journal is now published by Iris Network.

MAURIELLO, D., CARINI, C. (2012), Il Quadro d’Insieme e le Tendenze dell’Evoluzione Recente, p.29. The 2008 data is the most recent data available on the basis of the REA (Repertorio delle Informazioni Economiche e Amministrative) integated. 212

213

MAURIELLO, D., CARINI, C. (2012), ibid.

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provision of services. Within this sector, more than a half of such organisationsâ&#x20AC;&#x2122; main activities goes under the category of Heath and social services. The others are distributed in other sectors, like school and learning (16,4%), operative services to enterprises and persons (9,9%), commerce, hospitality, restaurants and tourism (5%), advanced ICT for companies (4,2%), and transports, storage and logistics (2,1%)214 . The flexibility of the model is confirmed by the variety of sectors social enterprises are engaged in. The total number of beneficiaries of social enterprisesâ&#x20AC;&#x2122; activities has been estimated in about 5 million215.

Economic sector

Companies (2008)

Workers (2010)

Industry

1020

7,8

14950

Health and social services

6520

50,1

265530

School and learning

2140

16,4

36460

Operative services to enterprises and persons

1280

9,9

31230

Commerce, hospitality, restaurants and tourism

650

5,o

10100

Advanced ICT for companies

550

4,2

6350

Transports, storage and logistics

270

2,1

5380

Source: Unioncamere â&#x20AC;&#x201C; Ministry of Labour, Excelsior 2011

214

Ibid.

215

Ibid.

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Social enterprises in Italian law The social enterprise phenomenon in Italy emerged as a bottom up response to the crisis of traditional welfare system at the end of the 70s. In these years, some groups of citizens attempted to fill the spaces left empty by the welfare state withdrawal, offering new services by means of innovative organisational forms. A big part of these new initiatives were set up as traditional cooperatives. Since the aim pursued by such initiatives was the promotion of the general-interest, they gradually contributed to shaping a new cooperative form, which was formally recognized in year 1991 after several years of unregulated development. In 1991 Law 381 introduced the denomination of Social Cooperative, and only after fifteen years the Italian government introduced the legal category of social enterprise, which can now be adopted by all the organisations producing goods or services for common interest. In particular, Law 381 of November 8th 1991 recognized216 social cooperatives as those pursuing â&#x20AC;&#x153;the general interest of the community in the human promotion and social integration of citizensâ&#x20AC;?. Two types of social cooperatives were defined in the first article: type-A) managing social-welfare and educational services and type-B) undertaking other activities in agriculture, industry, commerce or services with the aim of work integration of disadvantaged persons, for at least thirty per cent of the whole. Following the provisions of law 381/91, the membership structure of social cooperatives has been enriched, encompassing five categories: 1) worker members who receive remuneration for their work; 2) user members who benefit from goods or services; 3) voluntary members (not over fifty per cent) who work in the cooperative â&#x20AC;?freely, spontaneously and personally, without receiving any form

Here the verb to introduce would appear soundly inappropriate especially for reasons exposed earlier in this chapter. 216

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of recompenseâ&#x20AC;?; 4) subsiding members who contribute with funds but exercising limited rights of participation; 5) legal entities, public or private legal persons whose bylaw provides funding and development of cooperative activities. Another important provision of this law is the possibility for public entities to derogate regulation on public procurement for agreements regarding work integration of disadvantaged workers. Law number 118 of June 13th 2005, named Delega al governo concernente la disciplina dellâ&#x20AC;&#x2122;impresa sociale, that is effectively an evolution as would be later explicitly stated by paragraph 3 of article 17 of Legislative Decree 155 of March 24th 2006, provides for a definition of social enterprise. It is recognized as a private non-profit organisation pursuing in a stable and principal way an economic activity of production or exchange of social utility goods or services with general-interest objectives. After that the enabling act clearly situated these initiatives within social oriented entities, excluding any limitation to fruition related to membership, but recalled the cooperative legislation with prohibition of refunds to members and workers and duty to reinvest profits. Connected to these provisions is also the duty to publish an annual report and to devolve the remaining assets to another social enterprise in case of closure. Another important provision by this law is the multi-stakeholder approach required in point 10 of paragraph b. Legislative Decree 217 number 155 of March 24th, 2006, named Disciplina dellâ&#x20AC;&#x2122;impresa sociale defined at first the concept of social enterprise as every enterprise pursuing mainly and in a stable way an economic activity finalized to the production and exchange of goods and services of social utility with general-

Legislative Decree is used here for simplicity and in conformity with other translations, even if the British term Delegated legislation act could have been used here to better translate the Italian Decreto legislativo in reason of similarities between these legislative institutions, primarily because in both systems an enabling act of the parliament confers power to legislate on specified themes on a government minister. 217

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interest objectives. The category defined in this way is not a new form of enterprise to be added to those already existing within the civil code system, it is rather a legal status that existing o future organisations can assume on condition that they respect certain requirements218 . The main requirements to be entitled to become a social enterprise include the following: to be a private non-profitmaking

organisation

and

carry

out

social-oriented

entrepreneurial activity with no restrictions of access to consumers/users different from members. So, first of all, social enterprises can only be organisations, individual enterprises are excluded219 . Secondly, organisations must to be private; Fici directly relates this requirement to the promotion of citizens’ autonomous initiatives carrying out common interest activities falling under the name of vertical subsidiarity 220 . The activity carried out has necessarily to be entrepreneurial, this implies economic sustainability and to be an “economic and organized activity with the aim of production or exchange of goods and services” as under article 2082 0f Italian Civil Code. Regarding the non-profitmaking nature article 3 states that an organisation willing to maintain the status must reinvest the profits in the main activity or to increase the assets. Explicit prohibition is made also of indirect distribution of profits, in particular of remunerating managers and workers with higher salaries with respect to medium level of similar enterprises but also over-

218 FICI,

A. (2008) La nozione e le forme giuridiche dell’impresa sociale in BORZAGA, C., FAZZI, L. Governo e organizzazione per l’impresa sociale, see generally the chapter. FICI, A. The New Italian Law on Social Enterprise, paper presented at the seminar “Emerging models of social entrepreneurship: possible paths for social enterprise development in central east and south east Europe” organized by the OECD LEED Trento Centre for Local Development of Non-Profit Organisations (ISSAN) in co-operation with the United States Agency for International Development (USAID) – Zagreb (Croatia), 28-29 September 2006.http://www.oecd.org/dataoecd/9/4/37508649.pdf 219

220

Art. 118, para. 4, Italian Constitution.

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remunerating financial instruments other than stocks221. Article 13 then extends prohibition of redistribution also after the enterprise closure, residual assets must be given to non-profit organisations, associations, committees or foundations as from the statute. On the side of principal activity carried out, it must be social oriented or either of general-interest, and no limitation could be imposed on provision of goods and services in relation to membership. With regard to this requirement some scholars highlighted some controversial passages in the way ministerial decree 24th January 2004 fixed parameter to be taken into consideration to calculate the seventy per cent quota of activities. Otherwise the social enterprise status can be conferred also upon any enterprise, irrespective of its activity, employing a minimum of thirty per cent disadvantaged or disabled workers on its whole staff. These enterprises are indeed intended to carry out work integration as principal activity222.

Case Study: InConcerto The following case study describes an example of an innovative group of social enterprises that have managed to emerge from a traditional context, characterized by a rigid division between public and private actors in the provision of social services. The InConcerto case study shows the applicability of the social enterprise model in a variety of economic sectors. Over the years, 22 social cooperatives have been established, which have evolved in a successful example of integrated industrial “social cluster”. InConcerto has successfully managed to strengthen trust relations within and around the organisation and to mobilise resources from the local community; all this is in turn enhanced by

221 Ibid. See also IAMICELI, P. (2009) La disciplina dell’impresa sociale: potenzialità, limiti e prospettive 222

see supra. Note 4

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

means of a broader and more effective representation of the interests of the concerned stakeholders, a participatory and democratic governance system and the contribution free of charge of a significant number of volunteers223. The consortium InConcerto employs 1,350 people, 350 of whom are disadvantaged workers. Until today the consortium provided care and rehabilitation to more than 1,000 people, with an annual turnover exceeding EUR 44 million. The history of the consortium begins with an initiative undertaken by the social cooperative Lâ&#x20AC;&#x2122;Incontro. The cooperative was born in 1991 with the initial objective to reopen a dismissed old age home. Recognizing the raising demand for social and residential services within the population, especially elderly people, the cooperative founders â&#x20AC;&#x201C;all with a cooperative background- began to manage the structure offering a global service to users. One year after its establishment, the cooperative committed itself to rehabilitate and educate people with psychiatric disabilities in order to meet the increasing demand for specialized services arising at local level in this delicate sphere. A COD centre (Centro Occupazionale Diurno) was set up thanks to an agreement reached with the local public health agency. The COD is a highly innovative structure, where rehabilitation is pursued through the conduction of real working activities, given the aim of reintegrating disadvantaged people in the society. In 1992 another old age house was entrusted to the cooperative by a local municipality, and a number of new initiatives were started in the following years. In 2002 the consortium In Concerto was created to bring together all the cooperatives that had been working along the same lines and principles, in order to weave an internal and external network of solidarity and services for the local community.

BACCHIEGA, A., BORZAGA, C. (2001) Social enterprises as incentive structures, An economic analysis, p.273, 274. 223

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Over time, the philosophy of the consortium consolidated a close-knit network, approximating very much an industrial cluster (“social cluster”). In Concerto has managed to develop strong links with the local authorities, trade unions and private organizations engaged in the labour services. It has contributed to creating a real labour market, integrating public and private stakeholders to meet the growing needs of the region, and has had a role in creating new opportunities for social job placements. Consortium InConcerto is composed by a variegated typology of cooperatives: 5 health and social services cooperatives-ASSISTENZIALI o L’Incontro based in Castelfranco Veneto provides social and educational services to elderly and disadvantaged people plus home nursing assistance; o Orchidea based in Valdobbiadene provides social and educational services for psychiatric disadvantaged people plus home nursing assistance for elderly people; o Nuova Vita based in Camposampiero provides social and educational services for physical disadvantaged people plus home nursing assistance; o Cà Speranza based in Castelfranco Veneto provides social and educational services; o Orchidea Infermieri based in Treviso provides nursing work 3 agricultural work integration cooperatives: o Campoverde based in Castelfranco Veneto, sells organic agriculture; products plus a didactic farm; o Cantieri base Montebelluna produces agricultural products; o Cà Corniani based in Monfumo, produces organic agriculture products; 6 industrial work integration cooperatives INDUSTRIALI o Aurora based in Vedelago, produces high precision mechanical parts; o L’Incontro Industria based in Castelfranco Veneto, works in industry; o L’Incontro Arreda based in Castelfranco Veneto produces interior and 83

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

exterior wood furnitures; o Solidaria based in Vedelago works in industry and electric systems; o Accordi based in Cittadella works in industry. o Sentieri based in Castelfranco Veneto works in industry 7 services work integration cooperatives o Eos based in Castelfranco Veneto provides urban gardening and street furniture; o Eureka based in Castelfranco Veneto provides industrial laundry services; o I Cerchi based in Castelfranco Veneto provides industrial cleaning services o Cucina & Sapori based in Camposampiero provides restaurant and catering services; o Via Vai based in Castelfranco Veneto provides logistic and transportation services; o Cantieri Alta Padovana based in Galliera Veneta, provides various services to other cooperatives in the group. o Enercop based in Castelfranco Veneto Energie alternative: produzione di impianti fotovoltaici. 1 scope consortium o Consorzio Quartieri della SolidarietĂ based in Vedelago provides estate and energy management services to cooperatives within the group. To increase its occupational impact, the consortium created a social employment agency that acts as an interface between public and private employment services, social services and traditional businesses. Its partners are municipal social services, employment placement agencies, job centres, forprofit businesses, Service for Labour Integration, and occupational training centres. Within this framework, a memorandum of cooperation was signed with the temporary job agency, UMANA spa, to facilitate the placement of some disadvantaged workers with physical and mental disabilities. Based on its 84

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

experience, the consortium does not need to limit itself to responding to social needs identified by public bodies; it also suggests paths of social partnership targeted to the main community priorities. Following the global economic crisis, In Concerto promoted and obtained the agreement of local trade unions for a project named â&#x20AC;&#x153;New Povertiesâ&#x20AC;?, developed in cooperation with seven municipalities in the Region Veneto and with the region itself. In this project, the municipalities agreed to develop specific activities that could integrate unemployed people who lack any form of social safety net. The project is co-funded by the Region Veneto, which has pledged EUR two million in 2010 and EUR one million in 2011. Another interesting agreement was recently formalized with trade unions, following the closure of a factory that used to employ about 800 workers. Thirty people who had been dismissed were reintegrated by the consortium as a result of the launching of a new product line.

ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

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ILO Decent Work Agenda and Social Enterprises Alex Rigotti MEIS

the International Labour Conference at its 97th Session