Collective bargaining. Origins, value and enforceability. And if a contractor is a foreigner, do they apply or not?

A peculiarity characterising the Italian regulation of the agency contract is the centrality and importance of collective bargainingwhich makes the commercial agent, especially if he acts as a natural person, a figure that in several respects resembles an employee (cf. The agency contract and the employment relationship: distinguishing criteria and evaluation parameters).

In Italy, collective bargaining for commercial agents has a long tradition, dating back as far as the corporative law of the 1930s, thus even before the enactment of the Civil Code of 1942, which, with reference to the regulation of agency contracts, was inspired by the contents of collective bargaining itself. To be exact, the first regulation of the commercial agent took place with the stipulation of the Corporative Economic Agreements (CEC) of 26 May 1935.

Later, after World War II, with the abolition of the corporations, a new collective agreement was drawn up on the basis of the provisions of the Constitution. Indeed, Article 39(4) of the Constitution provides that:

"Registered trade unions have legal personality. They may, represented jointly in proportion to their members, conclude collective labour agreements with mandatory effect for all members of the categories to which the agreement relates."

The Constitution intended to give trade unions legal personality and the power to enter into collective agreements with effect for the entire category, a power that, however, has remained unimplemented to date. In any case, given the non-implementation of Art. 39 para. 2 et seq. of the Constitution, a transitional law was passed in 1959,^[1] which de facto gave the State the temporary power to transpose by legislative decree certain collective agreements entered into before the law came into force and giving them effect erga omnes. The aim pursued by the legislator was precisely that of guaranteeing minimum working conditions on the national territory that were not mandatory by the will of the parties.

To date, apart from collective agreements with effect erga omnes briefly mentioned above, collective agreements are entered into by trade unions and employers' representative organisations, which continue to take the legal form of unrecognised associations under private law. For this reason, the collective agreement, despite its undoubted centrality as a 'source' for regulating individual labour relations, took on the legal nature of an act of private autonomy of 'common law', i.e. not unlike any other civil law contract and as such subject to the rules on contract law in general set forth in Art. 1321 et seq. of the Civil Code. [2] It should be noted, however, that in doctrine,[3] than in jurisprudence,[4] However, an attempt was made to better protect the dispositive effectiveness of collective agreements themselves by introducing the principle of derogation only in melius.

With regard to agency, the following AECs are currently in force in Italy erga omnes:

• AEC 20 June 1956 on Agents of Industrial Enterprises;
• AEC 13 October 1958 on agents of commercial companies.

and the following main common law collective agreements:

• AEC 16 February 2009 for commercial agents in the trade sector;
• AEC 10 December 2014 for commercial agents in the craft sector;
• AEC 10 December 2014 for commercial agents in the industry sector.

As to the applicability of collective bargaining, the general rule is that collective agreements apply only to workers who are members of the stipulating trade unions (Art. 1387 et seq. of the Civil Code). However, over the years case law and the legislature have intervened to try to extend the subjective effectiveness in the absence of worker membership.^[5] Therefore the Common law AEC will be applicable as often as:

• both sides (i.e. both the agent and the principal), adhere to the contracting trade unions;
• there is a express reference to the AEC in the agency contract;
• there is a unspoken calli.e. whether the continuous and consistent application of the AEC rules by the contractors can be inferred.[6]

With reference to this last point, the Supreme Court in Italy has repeatedly held that AECs are binding:

"not only for members of the stipulating trade union associations, but also for those who explicitly or implicitly adhere to them"[7]

In the case of international agency agreementgoverned by Italian law, there is the double problem of the applicability of both common law AECs and collective agreements with effect erga omnes.

In the first case, the general principles of Italian law set out above are deemed to apply. This implies that if he is not a member of any Italian association of commercial agents, the Common law AEC will not be applicablenot even if the Italian principal (or agent) is a member of the unionunless there is an express or tacit recall to collective bargaining or .[8]

With reference to the AEC erga omnesthere are currently two jurisprudential orientations. The majority one, which holds that, the AEC erga omnes should not apply to agency relationships subject to Italian lawbut to be performed abroad, since collective bargaining applies and does not have transnational force.[9] The minority orientation, on the contrary, considers that only those contractual institutions, which in the intention of the social partners should have international validity, can be applied abroad.[10]

_____________________________

[1] Pending the implementation of the constitutional dictate, Law No. 751/59, known as the Vigorelli Law, was enacted in 1959: it delegated the government to issue legislative decrees with the aim of identifying the mandatory minimum economic and regulatory treatment valid for all members of the same category, conforming to what had already been established by collective agreements, so-called erga omnes collective agreements.

[2] G. Giugni, Diritto Sindacale, Cacucci, Bari, 2001, 58 ff; Le fondi del diritto del lavoro tra stato e ragione, Trojsi, Giappichelli, 2013, 82 ff; Il diritto del lavoro alla svolta del secolo, Atti delle Giornate di studio di Diritto del Lavoro. Ferrara, 11-12-13-May 2000, Giuffrè, Milan 2002, 49 ff.

[3] Rotondi, Codice commentato del rapporto di lavoro, Milan, 2008, 33; Persiani, Saggio sull'autonomia privata collettiva, Padua, 1972, 7

[4] Civil Cass. 4850/2006; Civil Cass. 41/2003; Civil Cass. 8097/2002; Civil Cass. 4570/1996; Civil Cass. 13351/1991; Civil Cass. 2198/1991.

[5] Cass. Civ. 1996 no. 319; Cass. Civ. 1993 no. 1359 ""collective labour agreements not declared effective erga omnes [...] apply only to individual relationships between persons who are both members of the stipulating associations, or who, in the absence of such a condition, have expressly adhered to the agreements by means of a conclusive conduct, which may be inferred from a consistent and prolonged application of the relevant clauses to individual relationships".

[6] Cass. Civ. 1993 No. 1359, In this case, the Supreme Court held that the AEC was applicable to the agency contract, even though the principal was not a member of the trade union association and there was no express reference in the contract: instead, it recognised the existence of a consolidated company practice over time of the principal's compliance with the collective legislation.

[7] See footnote 9; Cass. Civ. 1999 no. 368

[8] See footnote 9; Bortolotti, Il contratto di agenzia commerciale, CEDAM, 2007.

[9] Cass. Civ. 1993 no. 4505; Bortolotti, Il contratto di agenzia commerciale, CEDAM, 2007.

[10] Cass. Civ. 1988 No. 5021.