Precetti religiosi versus salute e sicurezza: il Diritto del Lavoro quale garante del rispetto dei diritti fondamentali
Stefano Maria Corso, Assegnista di ricerca di diritto del lavoro nell’Università di Urbino
Il saggio analizza la rilevanza assunta dalla Religione nel Diritto del lavoro e, in particolare, la crescente conflittualità che emerge, anche a livello di contrattazione collettiva, tra i precetti religiosi e l’integrale rispetto della normativa prevenzionistica posta a tutela della salute e sicurezza dei lavoratori. Segue l’approfondimento dell’ampia giurisprudenza sviluppatasi a livello internazionale e comunitario in funzione antidiscriminatoria e della sua possibile applicazione nell’ordinamento italiano.
The essay analyzes the growing relevance of Religion in Labour Law with a particular attention to health and safety regulations, in view of the (true or assumed) incompatibility of the same legislation with religious precepts. In an anti-discrimination perspective, it also highlights European and international case law and its implications for the judicial power and collective bargaining in the Italian scenario.
Keywords: health and safety at work – religious precepts – discrimination – reasonable adjustments – unlawfulness.
1. The dichotomy between Religion and (Labour) Law: a current problem - 2. Religious precepts before health and safety at work: the Italian scenario - 3. Historically relevant religious practices: examples of conflict and (possible) resolutions in health and safety legislation - 4. Collective bargaining, reasonable adjustments and freedom of worship: limits and opportunities - 5. Conclusions - NOTE
1. The dichotomy between Religion and (Labour) Law: a current problem
Law is the locus where different cultures of work, based on different histories, traditions and ideologies, find ground for confrontation, not infrequently for conflict and, occasionally, reconciliation. This can happen in the case of contrast between fundamental rights equally protected by the Constitution and when the “reciprocal integration” of the values at stake makes it necessary to reach a reasonable balance in order to avoid “the unlimited expansion of one of the two rights, which would become a ‘tyrant’ towards the other constitutionally recognized and protected juridical situations” . This situation affects Religion, which, erroneously considered a “cultural” variable whose influence is in decline in a Eurocentric perspective, instead plays a central role in the dynamics of social and economic development, impacting both company activities and worker interests . Given the variety of religious precepts that can be identified in an increasingly fluid, multicultural and fragmented society, and the equally extended interpretation – for identity purpose – of the so-called “new rights” linked to citizenship, integration of foreigners and civil coexistence , religion has been a motivating factor in a significant number of labor law disputes (e.g. clothing required in the workplace, limits on access to employment, regulation of working hours, permits and holidays, [continua ..]
2. Religious precepts before health and safety at work: the Italian scenario
In Italy, the protection of health and safety in the workplace is legally based in the Constitution, which recognizes health as a fundamental right of every individual (Art. 32 of the Constitution) , imposing private economic initiatives, equally free and protected, to develop without harming human safety and dignity (Art. 41, par. 2, of the Constitution). In this regard, the general obligation to the charge of the employer to guarantee safety (also in terms of “moral personality”) in the workplace pursuant to Art. 2087 of the Civil Code applies along with any more specific provisions envisaged by Legislative Decree no. 81 of 9 April 2008 (and other sector-specific regulations) with a view to implementing – through “the necessary set of provisions or measures also according to the specific nature of the occupation, experience and expertise” – an effective “prevention-based organization” in the workplace that is effective in preventing or reducing the risks of accidents and occupational illnesses. On the other hand, freedom of religion includes the freedom to practice and express one’s worship, ensuring – as far as is relevant here – the protection, in private and in public, of those behaviors considered to be the expression of religious duties . In this perspective, the religious precepts that directly or indirectly prohibit certain behaviors or the use of specific goods represent [continua ..]
3. Historically relevant religious practices: examples of conflict and (possible) resolutions in health and safety legislation
As an example, while we can say that it is generally accepted that religious freedom also extends to exterior manifestations of faith , an initial conflict between accident prevention legislation and religious obligation is found in precepts – common to many religions – that envisage an obligation for men to have long beards and hair according to specific style criteria. This does not allow, during some work procedures or in case of emergency or first aid situations that require immediate reaction times, a correct and functional use of personal protective equipment (PPE) or other equipment (for example, not allowing the full adherence of the oxygen mask to the face), which is why directives designed to protect health and safety at work usually include an obligation to shave with a certain frequency . Other, and historically better known, situations of conflict relate to religious precepts that impose specific dress codes. To mention a few, we can just think of the Sikh male worshippers, who are obliged to wear a special turban that makes it problematic if not impossible to wear protective helmets, both those compulsory for driving motorcycles in compliance with traffic laws and those falling under the category of PPE to be used when performing numerous work activities (e.g. in the sector of construction, shipbuilding, excavation, etc.) . With regard to these cases, it is important to note that, from a comparative perspective, there [continua ..]
4. Collective bargaining, reasonable adjustments and freedom of worship: limits and opportunities
Any worker – whatever religion s/he professes – is in the first place an individual who has rights guaranteed not only by Italian law, but also by international and Community law, like any other. For instance, at the international level, reference should be made to Article 18 of the Universal Declaration of Human Rights, Articles 9 and 14 of the ECHR, and Articles 18 and 27 of the International Covenant on Civil and Political Rights (ICCPR). These provisions recognize and recommend (to all and without distinction) the protection of the right to freedom of opinion and religion, including the freedom to manifest it in public, subject to certain limitations and differences in treatment pursued through appropriate and necessary means . At the Community level, the Treaty on the Functioning of the European Union (TFEU) aims to combat, inter alia, religion-based discrimination (Art. 10), reaffirms the identity and contribution of churches, associations and religious communities (Art. 17) and empowers the Council to take measures to combat discrimination based on religion (Art. 19). The latter provision was also the basis for the adoption of Directives 2000/43/EC (relating to equal treatment irrespective of racial or ethnic origin) and 2000/78/EC on equal treatment in the matter of employment and working conditions. In particular, the latter directive aims to establish a general regulatory framework to combat direct or indirect discrimination based, ex [continua ..]
In conclusion, even if in principle there may be technical or organizational measures provided for by law that may entail structural disadvantages for workers professing a certain religion, the Italian regulator did not provide for any exception to the full and exhaustive application of the regulation in the matter of health and safety. Since these rules are valid for all workers with characteristics of intrinsic “non-regression”, “objectivity” and “proportionality”, their generalized application excludes any direct or indirect discrimination against workers because the treatment – although characterized by uniformity across religions – is justified and proportionate on the level of the objectives pursued and reasonable on the level of the supporting arguments . This solution has the merit of avoiding an excess of claims justified on the religious level (but, potentially, also motivated by mere personal convictions) and, on the collective level, prevents attention to identity profiles from being used as an indirect instrument of social dumping “in exchange for a limited safety at work” . Based on the foregoing, the answer to the question of whether employers can resort to exceptions from the law, even if the regulation does not take into account needs justified by religious beliefs, is negative. It is undisputable that freedom of religion is a fundamental right recognized at the national and [continua ..]