Tipologie contrattuali e flessibilità del lavoro nelle pubbliche amministrazioni
Author(s)
Bracoloni, Marco
Date Issued
May 16, 2012
Type
Doctoral Thesis
Abstract
The persistent inefficiency in human resources management in the public sector draws our attention on how the public administration is currently trying to face the new, complex issues raised on a national, international and global level.
In a fast-developing labour market, the public sector is showing a scarce dynamism and a certain resistance to accepting innovative solutions. The discussion about the need to innovate the “privatised” working relationship and the public administration in general has been going on for quite some time; still, only recently performance evaluation has been introduced for “privatised” jobs within public administrations. Contractual flexibility in the public sector is an innovation that typically equals to more efficiency. That is why it seems necessary to us to investigate the reasons behind the lack of efficiency: is it only due to contractual issues or are there more complex causes, linked to cultural and social processes? Our study aims to investigate the adaptability of flexible employment contracts – that could be used to handle the organisation and management of personnel in public administrations – within the neo-authoritative contract model’s framework. The use of these types of contracts, together with the need for improved productivity and efficiency, has become fundamental to the development policy of public administrations. It is also essential for the implementation of cost containment policies - the so-called spending review – for the personnel who, starting from the late 1990s, reached high levels in the organization. Control measures have been previously taken: aiming at improving the efficiency of the services provided, by containing costs and reducing personnel – wrongly deemed redundant –, new employments were blocked.
By flexible employment contracts we mean all those types of contracts which are different from a full-time, permanent contract of employment, disciplined by the Article 2094 of the Italian civil code and defined as standard employment contract.
Starting from the guidelines outlined in law n.15 of 4th March 2009 – which reformed public employment – we analyse the measures which discipline the way public administrations can avail themselves of flexible work contracts.
To better understand the third reform of labour in the privatised public sector, it is necessary to examine the historical reconstruction of the normative discipline that regulates the
working relationship within the public administrations: starting from the assumption of performance improvement, through the evolution of contract types which characterised it, from the unilateral and authoritative model to the pactional and equal one.
Thanks to this reconstruction it is possible to identify the fundamental principles which are the basis of a possible use, by public administrations, of both standard employment contracts and flexible ones. This principles are “the efficiency of public administrations’ organizations”, “the intangibility of the organization, of the employer’s power and its relative managerial responsibility”, “the access to public offices” (relating to the application of the constitutional principle of equality, included in art.3, and to the imposition with the art.97 co.3 of the Constitution of public competitive examinations as the hiring method, except for dispensations stated by the law, in order to guarantee the public administration’s impartiality).
When included among the several instruments and primary objectives of public administrations, the use of flexible employment contracts represents a suitable tool to guarantee an improved organization of the offices, especially if it is aimed at pursuing the overall public administration’s good performance (according to art.97 of the Constitution).
Thanks to an appropriate management of human resources, it also becomes possible to reach a further target of primary importance for public administrations: the control of financial resources. An in-depth knowledge of human resources management (be them either employed through a standard contract or a flexible one), combined with a detailed analysis of the relevant context could support an efficient rationalisation of resources, not only on an organizational level but also on a political, economical and social one. The latter ones being so far the most complicated to deal with when managers tried to use flexible types of contracts within public administrations.
It is not a coincidence that art. 36 of legislative decree n.165 of 2001 (Testo Unico per il Pubblico Impiego) and especially paragraph 3, eventually modified by art. 17 paragraph 6 of legislative decree n.78 of 2009, highlights that a system which foresees the use of the above-mentioned types of contracts as a management instrument for public administrations must be aiming at fighting the abuse deriving from its own distorted use.
The abuse and distorted use of flexible employment contracts generated a large number of temporary employees, who are being cyclically helped by the so-called “stabilization norms” (norms which themselves have been under scrutiny for their legal validity).
Through a detailed analysis of article 36 of legislative decree n.165 of 2001, and bearing in mind the norms that regulate the working relationship within the private sector, it is possible to pinpoint all the critical aspects of the legislative apparatus, thus verifying the separation between disciplines which allow the application of flexible employment contracts by private
employers and public ones. This analysis also shows that the “unilateral and authoritative model”, which regulated the working relationship within public administration before its privatisation, is still very much applied in that context.
Starting from the first revision of the first two paragraphs of the already mentioned article 36, included in legislative decree n.29 of 1993, we can determine the field of application of legal relationships deriving from the stipulation of flexible employment contracts here listed. All the discrepancies between the discipline that regulates the working relationship with a private employer and the one with a privatised public administration are easily highlighted.
By comparing the contents of the norms which regulate every single type of flexible contract, included in article 36 of legislative decree n. 165/2001, and its perceptive value, it is possible to verify the specification that characterizes the working relationship within public administrations and how flexible contracts are there applied.
The cross-reference - included in the second paragraph of article 36 of legislative decree n. 165/2001 - to the content of the National collective labour agreements, which regulate temporary contracts, “paid apprenticeships” (contratti di formazione e lavoro), other vocational training and supply contracts (altri rapporti formativi e somministrazione del lavoro), ancillary casual labour (lavoro accessorio) and socially useful workers (lavoratori socialmente utili), highlights the possibility for the “collective autonomy” to regulate and integrate single contractual schemes thus realizing the scheme of the pactional contract model and at the same time emphasizing its limit in indicating only the categories of employees to whom that can be applied.
A small part of this analysis is dedicated to part-time jobs and managerial assignments for personnel employed through standard contracts which, although falling under the category of permanent jobs, are nevertheless an expression of a certain labour flexibility within public administration on the basis of improved performance and administrative organization.
The analysis of article 36, paragraph 5 of the legislative degree n. 165/2001 develops the topic of violation of imperative provisions: rarely applied in the past, a new revision has been re introduced with law n. 102/2009 and now strongly reasserts the application of disciplinary measures against non compliant managers in order to recover funds used to hire employees through illegal types of flexible contracts.
Further considerations come from the mandatory requirement, for all public administrations, to present every year to their relevant evaluation board and to the Presidenza del Consiglio dei Ministri an informative report on all the types of flexible employment contracts applied in relation to the number of personnel and the relevant expenditure per type. This informative report has a double purpose: on one side it allows the board to easily locate the
manager responsible for misusing non-standard contract types, by checking the managerial decisions taken; on the other side - and on a more general level - it offers the opportunity to adopt measures aimed at improving the legislative and organizational management of human resources and finances. As if to say, it is essential to effectively promote a culture that encourages a good management of the res publica.
This trend represents, in our opinion, the best strategy to fulfill the principles of transparency and impartiality peculiar to public administrations. These principles will help avoiding that the implementation of non-standard employment contracts either degenerates into new forms of temporary employment or creates a new, elusive method to access professional jobs within public administrations thanks to the proven resort to the so-called “stabilization norms” and public competitive examinations for permanent positions.
In light of the recent regulatory and jurisprudential interventions, we will separately analyze the case of flexible employment contracts applied by the Ministry of Education both for teachers and administrative personnel (called ATA). Starting from law n.124/1999 and D.P.R. n.430/2000, this section highlights the relationship between school employees and the applicability of the EU directive concerning temporary contracts.
In the conclusions, we will describe the main characteristics of the neo-authoritative contract model, now used in public administrations.
Further final reflections consider the effects that the imminent reform of the labour market, currently being discussed in Parliament, will produce also in the privatised public sector and especially what innovations will introduce in the flexible contractual typologies, in the attempt to provide a solution about whether or not the public administration should or could once again use a contractual scheme different from the one implemented in the private sector.
Additional information
Dottorato di ricerca in Diritto dei contratti pubblici e privati
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