L’esclusione di Nursind dalla contrattazione integrativa del Comparto Sanità tra Carta sociale europea e Costituzione

[Machine translation] The decision of the Constitutional Court n. 178 of 24 June 2015 marked, more than ten years after the last contract round, the resumption of negotiations also in the Health Sector, leading to the signing of the Pre-Agreement for the period 2016/2018. The resumption of collective bargaining sees for the first time in the history of trade union relations in the Sector the non-subscription of Nursind and Nursing Up. In the past, even in the face of a motivated and expressed dissent with regard to the contents of contracts, trade unions have at most a “technical signature” attached to them. “While not sharing all its economic and regulatory contents” and expressing “dissent on all sides of the CCNL...”, we read in the various contractual texts, the trade federations have nevertheless signed several agreements, the clarifications continue in the minutes, “for the sole purpose of keeping the possibility of trade union action in the workplace unchanged.” In other words, the trade unions have always signed the agreement to guarantee admission to second-level bargaining, since, due to the application of the “negotiating link” rule, established by the same national collective agreements of the sector, the initials that are not signatory to the CCNL cannot be admitted to supplementary bargaining. Due to the operation of the above-mentioned clause, the two Federations are excluded from supplementary bargaining. Hence the promotion of a series of actions as a precautionary measure and before the European Committee of Social Rights, with the purpose of obtaining the declaration of illegitimacy of the rule itself. Doubts as to the legitimacy of the clause are dispelled by the court of first instance who intervenes to establish the validity of the provision. And the contribution goes so far as to argue that in the same sense the European Committee of Social Rights will be able to pronounce itself, thus filling an interpretative gap determined to date by the absence of a clear interpretative orientation of the CSE and the failure to take a position of the doctrine on the subject. The contribution stems from the recognition by the ECHR of the freedom of each State to organize its system of trade union relations, allowing, possibly, also a special status for representative unions. Moreover, Community case law has variously recognized the right to collective bargaining, exercised “in accordance... with national laws and practices” as a limit to the application of Union law. But even if we think in the opposite direction, namely that collective agreements do not constitute an area exempt from the application of European Union law, “the autonomy of collective bargaining” still receives adequate recognition within the Union. The Social Charter, in letter G, always admits the limitations' necessary 'to guarantee a democratic society... respect for the law... to protect public order... public health.” So here is that even in this perspective both art. 40 of Legislative Decree 165/2001 and the various collective provisions can be considered legitimate, by virtue of their distinctive purpose of protecting the public interest so that the lines of the content of national bargaining cannot be called into question at a decentralized level, to avoid contradictions, legal uncertainty and guarantee public health. Regulatory intervention, in other words, must be said to respond to the needs of ensuring the stability of the system of trade union relations, which is even more strategic in the healthcare sector, characterized by a particular complexity of the collective bargaining procedure, due to the economic constraints imposed.