Nel presente lavoro ci si interroga sull’incidenza che il credo religioso dei propri dipendenti può avere, nell’organizzazione del lavoro da parte del datore.

Viene analizzata la sentenza Cresco investigation (C-193/2017), relativa alla legislazione austriaca, la quale riconosce il venerdì santo come giorno di riposo retribuito solo a favore dei lavoratori appartenenti a talune chiese (quelle “di cui all’ARG”) e non invece a favore degli altri lavoratori, in ipotesi non appartenenti a nessuna confessione.

Viene criticata la posizione della Corte di giustizia, in ordine al preteso carattere discriminatorio della legislazione austriaca e in ordine alla pretesa necessità di riconoscere analogo diritto (al riposo il giorno del venerdì santo o) all’indennità supplementare, a favore dei lavoratori non appartenenti ad una delle chiese “di cui all’ARG”, che abbiano lavorato il giorno del venerdì santo, qualora ne abbiano fatto anticipatamente richiesta al datore di lavoro.

Piuttosto, si ritiene che, in un contesto come quello austriaco (in cui il venerdì santo è riconosciuto come giorno di riposo retribuito a favore dei lavoratori delle chiese “di cui all’ARG”) analogo diritto debba essere riconosciuto a favore degli appartenenti ad una diversa confessione “minore”, qualora la stessa sia ugualmente radicata nel contesto di riferimento, e anche tale confessione preveda una festività religiosa “speciale”, non coincidente con una festività nazionale

SOMMARIO:

Introduction - 1. Judgment C-193/17 on the recognition by the Austrian legislature of Good Friday as a day of paid rest for workers belonging to the churches referred to in the ARG - 2. Possible implications, for Italy, of the ruling of the Court. Criticism of the judgment - 3. Criticism of the position of the Court, with regard to the alleged discriminatory nature of national legislation under which, on the occasion of a given religious holiday, which is relevant only to certain confessions, only members of those confessions are entitled to paid rest, or to an additional allowance - 4. Criticism of the Advocate General’s position with regard to the alleged discriminatory nature of national legislation under which, on the occasion of a given religious festival, which is relevant only to certain confessions, only members of those confessions are entitled to “additional compensation” - 5. The protection of negative religious freedom cannot grant special permissions to atheists, just because these are granted to employees belonging to another religion - 6. Whether the differentiation in question is attributable to the provision in Article 2(5) or Article 7(1) of Directive 2000/78 - 7. Whether the ineligibility for a day of rest of members of other faiths, which have ‘special’ religious holidays which do not coincide with a national holiday, is discriminatory, or not - 8. The different protection to be granted to the different churches, in the light of the Italian constitutional framework - 9. The disapplication of the national rule which conflicts with the prohibition of discrimination on grounds of religion and the application to members of the disadvantaged group of the same treatment that is reserved for persons of the favoured group - NOTE

Introduction

In the current historical context, the theme of religious freedom and its impact on the organization of work is becoming increasingly important, particularly with reference to working and non-working times [1]. It has been noted that in the labour field, «religious freedom has a dual value: both as a prohibition of discrimination on religious grounds and as a possibility of fulfilling obligations linked to one’s own faith» [2]. These two profiles are intimately interwoven, as attested by the recent ruling of the Court of Justice C-193/2017. This is a decision that is likely to have far-reaching repercussions and it deserves to be discussed and examined in depth.

1. Judgment C-193/17 on the recognition by the Austrian legislature of Good Friday as a day of paid rest for workers belonging to the churches referred to in the ARG

As is known, this judgement refers to the Austrian case. In Austria, Good Friday is a public holiday only for employees who are members of certain Christian churches. In particular, only for workers who are members of the Evangelical churches of the Augsburg and Helvetic Confessions, the Old Catholic church and the United Methodist church (indicated in the ARG, Arbeitsruhegesets, the law on rest periods). If employees of those Chiristian churches (the ones “covered by the ARG”) are required to work on Good Friday, they are entitled to a payment in addition to their regular salary, for work done on that day. The grant of “public holiday” on Good Friday, or of a payment in addition to their regular salary for work done on that day to those employees (“covered by the ARG”) is not conditioned to the circumstance that they perform a particular religious duty during that day. The only requirement is that those employees formally belong to one of those churches (and that have sought prior permission from their employer to be absent from work on that day). While employees belonging to other religions, whose important festivals do not coincide with the public holidays, do not enjoy an equal right. However, which rule should be applied if a worker, who does not belong to one of these churches, claims the right to public holiday on Good Friday or to an additional pay for work done on Good Friday? Many were the issues referred for a preliminary ruling to the Court of Justice: does the Austrian provision constitute discrimination prohibited by European law? Can the Austrian rule be regarded as a necessary measure to protect the religious freedom of members of the churches listed in the ARG? Can the Austrian rule be regarded as a positive measure in favour of the members of the churches listed in the ARG? If discrimination is found to exist, the Court is still asked whether or not the Austrian national provision should be disapplied, in relations between private individuals; and what the consequences are: are workers not belonging to the above churches entitled to receive compensation for all the days of rest on Good Friday not taken, or must the national provision be disapplied in its entirely, and the rights in respect of Good Friday not be granted to any employee? It’s worth mentioning that the worker, in the Cresco investigation case, did not belong to any church and merely complained that he had been deprived of the [continua ..]

2. Possible implications, for Italy, of the ruling of the Court. Criticism of the judgment

The judgement raises some significant questions, and not least for our own country. In Italy preferential regimes for certain confessions, other than Catholic, have been introduced through “agreements” (art. 8, para. 3 Const.), transposed into law [6]. See, in particular, the agreements with the Waldensian Table, the Adventist churches (art. 17), with the Assemblies of God in Italy, with the Jewish Communities (art. 4 and 5), with the Orthodox church (art. 10), the Christian Evangelical Baptist union, the Evangelical Lutheran church, the Apostolic, the Mormons, the Buddhist union (art. 24) and the Hindu union (art. 25) [7]. For example, pursuant to article 25 of law 246 of 2012, members of the Italian Hindu union are allowed to observe the Hindu celebrations of Dipavali, in the framework of flexible working arrangements, without prejudice to the exigencies of essential public services. This prerogative does not, however, require the members of the Italian Hindu union to actually participate in the religious ceremonies in question. Similarly, under Law No. 130 of 2016 (art. 22), Buddhists belonging to the IBI-SG are granted, at their request, the right to observe the holidays of 16 February (birth of the Buddha Nichiren Daishonin) and 12 October (registration of the Dai Gohonzon by the same Nichiren Daishonin), in the framework of flexible working arrangements, without prejudice to the exigencies of essential public services. Article 4 of Law No. 101 of 1989 recognises the right of Jews to sabbatical, within the framework of flexible work organisation and without prejudice to the essential requirements of essential services. The provisions concerning the use of sabbatical rest also apply to various Jewish religious holidays (art. 5). The Court of Justice’s judgement raises serious questions about the right of other workers, of non-Hindu, Buddhist, Jewish faith, who in the wake of this judgement advance a request to enjoy such prerogatives [8]. However, a more searching analysis reveals the more profound repercussions of this judgement upon our own order. The need or otherwise for an employer – in the organisation of his or her company – to take due account of religious requirements of his/her employees should be considered. These questions arise, in principle, as regards the example of Muslim workers who observe the obligations of fasting and prayer during Ramadan as also their requests for breaks from [continua ..]

3. Criticism of the position of the Court, with regard to the alleged discriminatory nature of national legislation under which, on the occasion of a given religious holiday, which is relevant only to certain confessions, only members of those confessions are entitled to paid rest, or to an additional allowance

The fact that, in the Cresco investigation case, the worker had only complained about his ineligibility for the additional allowance (and had not, instead, claimed the paid day off on Good Friday) had been stressed by the Advocate General in his conclusions, in order to identify what should be the tertium comparationis, in the case. The question arose whether the treatment of workers belonging to the four churches favoured by the ARG (Article 7(3)) should be compared: (i) with the treatment of employees for whom Good Friday is the most important religious festival of the year (“narrow comparator”). In that case, there would have been no discrimination in the Cresco investigation case (in the absence of “comparability” between the Cresco employee, who wass not a member of any church, and the employees of the churches referred to in the ARG); ii) with the treatment of employees whose “special” religious festivals are not recognised by national legislation (“intermediate comparator”); (iii) or with employees who, while working on Good Friday, do not receive the additional allowance because they do not belong to one of the four favoured churches (“broad comparator”, i.e. the situation of the claimant). The Advocate General, in his Opinion, favours the “broad comparator” precisely because of the “economic” nature of the benefit claimed (the indemnity, not the rest) [17]. In essence, according to the Advocate General, if the question had concerned only the paid holiday benefit, there would have been «solid justifications for having recourse to the intermediate comparator»: in fact, only those who adhere to a confession which provides for a “special” religious festival which does not coincide with a national festival are in a comparable situation (since they have a similar need to abstain from work, during that day, compared with workers belonging to the four churches referred to in the ARG). On the other hand (according to the Advocate General) with regard to the right to double pay for work done on Good Friday, the position of those who are not members of any church would be comparable (and discriminated against) with the position of those who are members of a church for which that day is considered a particularly important festival, given that «levels of remuneration and faith are, in principle, unconnected». This explicit [continua ..]

4. Criticism of the Advocate General’s position with regard to the alleged discriminatory nature of national legislation under which, on the occasion of a given religious festival, which is relevant only to certain confessions, only members of those confessions are entitled to “additional compensation”

However, the distinction proposed by the Advocate General (between nonrecognition of a paid day off and non-payment of the additional indemnity) is not fully convincing either. In fact, the imposition on the employer of the payment of an additional indemnity in favour of workers (belonging to a church covered by the ARG) who are required to work on Good Friday also seems to be in line with the objective of ensuring that these workers are able to participate in the rites of worship. This is, at least, in so far as the payment is a “deterrent” to the employer in respect of the employment of those workers on Good Friday. From this point of view, the position of the two groups (atheists and those belonging to one of the four churches referred to in the ARG) does not, therefore, once again seem to be comparable.

5. The protection of negative religious freedom cannot grant special permissions to atheists, just because these are granted to employees belonging to another religion

According to our point of view, it would therefore not be discriminatory to deny an atheist worker (who does not belong to one of the churches listed in the ARG) a holiday rest on Good Friday or an additional indemnity. This conclusion can’t be affected by the observation that European and international sources also protect “negative religious freedom”, i.e. the so-called “freedom of atheism”. It is well known that, with reference to the ECHR, the question of negative religious freedom (with reference to the right to education) has arisen in relation to the question of the display of the crucifix in classrooms: a question finally resolved by the Grand Chamber in the sense that it is a choice within the margin of appreciation of each national State [20]. It is true that in other judgments, too, the ECHR has, in principle, recognised that the guarantees set out in Article 9 of the Convention (“freedom of thought, conscience and religion”) and the associated Article 14 (prohibiting discrimination on grounds of religion and belief) apply to the various consistent and authentically observed convictions, such as, in particular, the attachment to secularism [21]. As for the EU sources, they certainly also protect the “negative freedom of religion”; and moreover, they prohibit any discrimination based on personal convictions (such as, atheism). With specific reference to the Italian legal system, from the reading of the preparatory work for the Constitution one cannot grasp a full equalization between religious freedom and freedom of atheism [22]; therefore, the dominant opinion was, at first, that the latter was protected only under art. 21 of the italian Constitution (as a free expression of atheistic thought). Over time, however, the opposite interpretation has prevailed, which sees the protection of negative religious freedom within the scope of Art. 19 of the Constitution [23]. It has been observed, however, that the question basically boils down to freedom of profession and propaganda [24], since a freedom of “atheistic worship” cannot be envisaged. Nor, it has been said, can the associations in question invoke the protections referred to in Article 20 of the italian Constitution [25] (not having a “religious character”), or the coverage provided for in Article 8 of the Constitution, paragraphs 2 and 3, for “religious [continua ..]

6. Whether the differentiation in question is attributable to the provision in Article 2(5) or Article 7(1) of Directive 2000/78

Once it is accepted (departing from what the Court of Justice seems to consider) that the Austrian national law does not “discriminate” against atheist workers, since they are not comparable to the employees belonging to one of the churches covered by the ARG, the other questions which the Court is dealing with – (concerning the possible basis for differentiation in Article 2(5) of Directive 2000/78 or in Article 7(1) thereof) are also taken up. Anyhow, those questions do not appear to have been resolved by the Court of Justice in a completely convincing manner either. As the Advocate General once again makes clear in his Opinion, Article 2(5) [27] seems to be rather «intended to protect the general public from the nefarious behaviour of certain groups»» [28]: « the “others” in the protection of the rights and freedoms of “others’’ (referred to in Article 2(5)) are therefore not “members of the group to whom the legislation in question grants some advantages” (in this case, workers who are members of one of the churches referred to in the ARG). Rather, it is a question of striking a “balance” between the “discrimination” suffered by the disadvantaged group “and the general interest of the general public” [29]. As to the idea that the measure provided for in Article 7(3) of the ARG could be regarded as “positive action” in favour of the members of the four churches in question, the Advocate General had complained of its lack of proportionality on account of its selective nature. In essence, according to the Advocate General, religious “minorities” (other than the churches referred to in the ARG) were not adequately protected under Austrian law: Article 7(3) did not apply to them; nor was collective bargaining “erga omnes” (capable of protecting workers in all sectors, and in all minorities). Finally, Article 8 of the ARG (“duty of care”) did not afford them protection comparable to that afforded by Article 7(3) to workers who are members of the churches of the ARG [30]. For these reasons, according to the Advocate General, the provision of an additional indemnity only to the members of the churches of the ARG must be considered discriminatory. And, indeed, article 8 of the ARG, at first sight, did not seem clearly referable to the festivals (relevant for the [continua ..]

7. Whether the ineligibility for a day of rest of members of other faiths, which have ‘special’ religious holidays which do not coincide with a national holiday, is discriminatory, or not

According to our point of view, in the case decided by the Court, there was therefore no discrimination against workers who did not have any religious obligation (atheists). On the other hand, the question whether the recognition in favour of the members of the churches referred to in the ARG of Good Friday as a day of rest requires the State to take similar account of the festivals of other “minor” religions, is a different – and certainly serious – matter. The case law of the European Court of Human Rights (although referring to the different legal horizons of the European Convention on Human Rights) can be a valid point of reference for any reflection on the subject. The European Court of Human Rights has on several occasions recognised religious pluralism as a value and has stated that States must exercise their regulatory power in this area and their relations with the various religions in a neutral and impartial manner [31]. Such a duty of neutrality cannot, however, diminish the role of a faith or a church to which, historically, and culturally, the population of a given country adheres [32], provided that in principle, pluralism is also based on the recognition of and respect for the diversity and dynamics of cultural traditions, identities and religious convictions [33], and the choice to preserve and perpetuate a national tradition is a matter for each State’s discretion, albeit to the extent of the necessary respect for the rights enshrined in the Convention and its protocols [34]. «It is true that freedom of religion does not require the Contracting States to create a particular legal framework in order to grant religious communities a special status entailing specific privileges. Nevertheless, a State which has created such a status must not only comply with its duty of neutrality and impartiality but must also ensure that religious groups have a fair opportunity to apply for this status and that the criteria established are applied in a non-discriminatory manner» [35]. It is not the Court’s place to impose on a State a particular form of cooperation with the different religious communities. However, whatever form is chosen, the State has a duty to put in place objective and non-discriminatory criteria «so that religious communities which so wish are given a fair opportunity to apply for a status which confers specific advantages on religious [continua ..]

8. The different protection to be granted to the different churches, in the light of the Italian constitutional framework

These conclusions certainly seem to fit in with the Italian legal system as well: according to art. 8, subsection 3 of the italian Constitution, the state may regulate its relations with individual religions through separate and differential agreements, in order to meet specific needs, «or to grant special advantages or to impose special limits» [37]. The equal freedom of religious does not prevent «a diversity of normative treatment according to their size and needs» [38]. «One thing is religious liberty guaranteed to all without any distinctions, another is a system of agreementbased arrangements» [39]. The legislator cannot, however, «discriminate between religious creeds simply on the basis of their having or not having regulated their relations with the state through agreements or understandings» [40]. Ultimately, according to the opinion that seems preferable, the provisions introduced into Italian law in favour of members of certain religious denominations, in particular with regard to the right to certain religious holidays, not counted among the national holidays (as compatible with the functioning of the essential services), certainly appear legitimate and non-discriminatory towards workers who do not belong to any church. The organisational measures provided for in collective bargaining agreements, aimed at enabling workers, for example, of the Islamic faith to fulfil their religious obligations (of prayer, fasting), also appear to be perfectly legitimate and non-discriminatory towards those who do not have any religious obligations. And yet, the State – once it has granted such a differentiated status in favour of certain confessions – could not, as has been said, deny the recognition of analogous rights to those confessions which – being equally rooted in the system – are in a comparable situation. Similar conclusions apply with regard to collective bargaining. Prayer breaks could not be requested by the atheist worker solely because they are granted to the Muslim worker without effective control of their actual use for prayer. However, similar measures could be invoked by equally entrenched communities, having similar ritual obligations. However, it should be remembered that the ruling of the Court of Justice in question goes in a completely opposite direction. And that, therefore, a dispute is likely to arise to obtain for [continua ..]

9. The disapplication of the national rule which conflicts with the prohibition of discrimination on grounds of religion and the application to members of the disadvantaged group of the same treatment that is reserved for persons of the favoured group

As far as the chapter on protection is concerned, the Court of Justice takes a decisive approach (at least where the discrimination comes from a rule of the Member State) to the disapplication of the conflicting national rule, even in horizontal relations, between private individuals and the recognition to the “disadvantaged” group of the same treatment granted to the “favored” group. Disapplication – in the absence of direct effect of the directives in relations between private individuals – is based on the prohibition of any discrimination on grounds of religion or belief, which constitutes a “general principle of the Union” and is now enshrined in article 21, para. 1 of the Charter of Fundamental Rights. According to the Court, that prohibition is «sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law» [41]. With the consequent application, until measures reinstating equal treatment are adopted, to members of the disadvantaged category of the same advantages as those enjoyed by persons within the favoured category [42]. Therefore, the supplementary allowance is granted to those workers who (as required of the members of the four churches) have previously informed their employer that they do not wish to work on Good Friday. This is one of the most debated aspects, as evidenced by the numerous national and European rulings that are taking place in this area [43]. «The ECJ seemed initially to acknowledge a sort of “derivative” horizontal direct effect to some provisions of the Charter, mediated by the directives which give them concrete effect, and anchored to the general principles of EU law or to the constitutional traditions common to the Member States» [44]. This, however, had generated some ambiguity as to the relationship between the rights contained in the Charter and the directives defining its content [45], which was later clarified by the subsequent pronunciation “Association de mediation sociale” [46]. In this pronunciation it was, in essence, specified that it is only the provision of primary law and not the directive that gives it concrete expression to have direct horizontal effect, where it has the necessary characteristics (missing in the case at hand) [47]. In the Cresco investigation case, like in the previous Egenberger, [continua ..]

NOTE