La contrattazione collettiva di una ragionevole sistemazione degli atti religiosi nella azienda
Antonio Ojeda-Avilés, Professore Ordinario di Diritto del Lavoro presso l’Università di Sevilla
I problemi delle manifestazioni religiose nei luoghi di lavoro e le loro molteplici forme nei tipi di vestiti, festività o di rifiuto di certe attività proibite dalla religione, hanno subito un aumento esponenziale con l’inizio del 21° secolo nei paesi europei, dove l’immigrazione da paesi con religioni non cristiane o, in generale, diverse dalla maggioranza in ciascun paese, ha prodotto innumerevoli interventi giudiziari negli ultimi anni. Vecchio coltivatore dell’argomento, la Corte europea dei diritti dell’uomo (CEDU) ha visto quanto recentemente anche la Corte di giustizia europea (CGUE) sia arrivata a perseguire anche casi di risonanza. Ma i tribunali sono sopraffatti e gli standard legali sono troppo generici. È necessario analizzare gli standard privati, e non tanto i codici dell’uniformità aziendale quanto i contratti collettivi, finora poco inclini ad entrare in tale materia, ma progressivamente interessati all’aumentare dei conflitti.
The problems of the religious manifestations in the workplaces and their multiple forms in the types of clothes, of festivities or of rejection to certain activities forbidden by the religion, have undergone an exponential increase with the beginning of the 21st century in the European countries, where immigration from countries with non-Christian religions or, in general, different from the majority in each country, has produced innumerable judicial interventions in recent years. Old cultivator of the subject, the European Court of Human Rights (ECHR) has seen how recently also the European Court of Justice (CJEU) has come to prosecute resonant cases too. But the courts are overwhelmed, and the legal standards are too generic. It is necessary to analyze the private standards, and not so much the codes of corporate uniformity as the collective agreements, hitherto little inclined to enter into that subject, but gradually interested as the conflicts multiply.
Keywords: collective agreements – hijab – Muslim religion – Hebrew religion – reasonable accommodation – Ramadan – friday rest – Muslim and Jewish holidays – directive 2000/78.
1. The limits of judicial control - 2. Private regulations as conflict prevention - 2.2. Unilateral private standards - 2.2.1. The pioneering business codes of dress and behavior - 2.2.2. Mentions in collective bargaining - NOTE
1. The limits of judicial control
The technique of reasonable accommodation, imported from the United States and Canada, has allowed the courts to get out of the narrow limits in which the religious conflict was initially in the companies for the sake of greater freedom of action to achieve respect for all the religions and beliefs in their just limits. In general, the doctrine has welcomed the application of the theory as positive, and even as important, opening doors until then closed , although there are still some limits that lead to specific criticism, related to the reluctance to change of the courts , with the application of less open methods. Thus, Valdés Dal-Re has criticized the rejection of the ECHR to ways of adaptation and reasonable adjustment and not simply to declare the interference, with regard to the judgment of February 12, 1981, case Ahmad v. United Kingdom, where the refusal to work on Friday afternoon of an English teacher of Muslim religion in order to go to pray in the mosque was dismissed by the ECHR with the emphatic assertion that the corresponding article of the ECHR did not protect it . For its part, Rojo Torrecilla points out two certainly existing limits, the excessive respect of the ECHR to national peculiarities, materialized in the secularism (laicité) of the French State, and the Spanish Constitutional Court in assessing as an ideological freedom of the company attitudes such as the refusal to sell the “morning after” [continua ..]
2. Private regulations as conflict prevention
2.1. Differences and characteristics The Canadian Bouchard-Taylor report – which marked the beginning of European interest in front of the concept – distinguished between reasonable judicial accommodation and concerted adjustment between private or between administrations through friendly negotiation and compromises. Between the two formulas, it pointed out an important difference: the first one refers to the application of laws, while the second is of lesser importance, since it seeks to avoid conflict and is usually “guaranteed by the manager of the public or private institution before the courts. patients, students, consumers or employees” . But both are similar, to the point that denominating them in different ways seems unnecessary, since ultimately they pursue the same objective in the flexible solution of the problem. And above all, they come from the same duty attributed by the law to the managers of public and private organizations – from the State to the small entrepreneur – to avoid any form of discrimination through the adoption of harmonizing measures, as the authors indicate in the glossary that close the document . The duty is prior to the conflict, because it comes from both international and national standards. The same Report also pointed out something important: it is advisable to use the negotiation route avoiding judicialization as much as possible in the search for solutions, since ordinarily [continua ..]
2.2. Unilateral private standards
As usual, the State arrives late in the regulation of social phenomena, following the conflicts that have arisen and some early-morning solutions implemented by private initiative. In our case there have been, and in good number, but born of the management power of companies and the drive to preserve the good corporate image from the usual noise pollution in these conflicts. The situation outlined in the Eweida judgment, that in the four applications joined by it there was a corporate code of uniformity and clothing, beyond which two of the prosecuted companies were public and the other two private, resurfaced by all countries in a good number of cases, and the courts accept these codes as a sign that there has been an approach to the problem worthy of praise because in a large part of them the position of minorities has been taken into account, and in any way has clarified the situation to allow the counterparty to challenge the business decision. However, some problems arise, as we will see.
2.2.1. The pioneering business codes of dress and behavior
For the most part these regulations or codes raise the business position regarding a common aspect in Europe, the use of Muslim religious clothing in workplaces, and public spaces in general, while the issue of festivities and acts of religions minority, in conflict with the majority festivities turned into secular traditions in all countries, finds more difficult treatment and barely appear regulated in these codes. Let’s see as an example two important sentences of the CJEU of March 14, 2017 in the Achbita and Bougnaoui cases, object of numerous comments because, among other advances and as indicated by Contreras Mazarío, it is the first time that the Court has addressed the theme of religious symbols in general, and the Islamic handkerchief (hijab) in particular , although obviously, neither the CJEU had stopped dealing with it before, nor had the ECHR been delayed in important cases such as 1 July 2014, SAS v. France case, on prohibition of the Islamic headscarf in public places for reasons of social coexistence under the French Law of 2010 . For its part, the national courts had also got up early in the matter, according to the judgments of the German Constitutional Court BVG of September 24, 2009, the House of Lords in the case Begum R (Begum) v. Denbigh High School 2006 , the Spanish Supreme Court in judgments of November 2, 2011 in the Barik case (expulsion of Muslim lawyers for carrying the hijab), or February 14, 2013 in the [continua ..]
2.2.2. Mentions in collective bargaining
Collective agreements have come to regulate religious freedom in all countries, but with the same respect – or, if you like, distancing – with which they have regulated other non-specific fundamental rights, which seems to have restricted the proliferation of clauses where find criteria for accommodation of this freedom. In appearance, the admonitions on respect for fundamental rights have been more influential than the desire to determine reasonable adjustments to multiculturalism, despite the pronouncements referred to in the norms of the highest rank in favor of their intervention. Most of the times we find any reference to the subject in the agreements, it is a simple declaration of respect for workers’ freedom of opinion and religion, without concrete measures, as we see paradigmatically in the French national collective agreement on open-air hostelry of 1993, to whose tenor “The parties contractantes reconnaissent la liberté d’opinion ... Elles s’engagent à ne pas tenir compte ... des opinions politiques, philosophiques or religieuses, ni de l’origine sociale ou raciale, du sexe ou de l’âge pour arrêter leurs décisions, quelque nature qu’elles soient, intéressant le fonctionnement de l’entreprise, et notamment in ce qui concerne les employeurs, l’embauchage, les conditions de travail, rémunération et l’avancement, formation [continua ..]