From Sanctions and Remedies to Prevention Mechanisms: The Effective Application of Labour Law Before and Beyond Courts in Italy

The effectiveness of labour can be explained with various causes, sometimes concurrent with each other: (a) The constant change of rules; (b) the multiplication of regulatory sources, including collective bargaining, in the absence of a solid coordination process; (c) the failures of the provisions and different interpretations of jurisprudence about law; (d) the proliferation of collective agreements negotiated by “company” unions, also known as “yellow company union”. In order to protect the rights of employees, the legal systems entrust the courts and the inspection services of the public administration with the task of supervising the correct application of the rules and provisions of collective agreements. However, this approach doesn’t always allow the full effectiveness of the mandatory rule because the duration and costs of legal disputes have increased, discouraging workers from filing a lawsuit to verify the correct application of the rules. The inspection services, on the other hand, are not always able to verify the correct application of the rules in all territorial areas and companies. Moreover, the assessment requires a lot of time and the expenditure of many public resources. In this case, a new approach to govern the effective application of labour law and social legislation comes from the Italian experience. This is the “labour law consultant”, as an institutional subject capable of guaranteeing the correct application of labour law and social legislation not in the pathological phase of the employment relationship (like a judge in the event that the worker contests the incorrect application of the regulations) but in the generative phase of the relationship, when demand and supply of work meet to establish a contractual relationship.