A fronte di un mercato del lavoro sempre più globale e di una massiccia immigrazione da parte di lavoratori di origine musulmane, il diritto del lavoro italiano è chiamato ad una riflessione sulla regolamentazione dell’esercizio della fede islamica nel contesto lavorativo, nonché sui riflessi della libertà di culto sulla salute dei lavoratori.

SOMMARIO:

1. Introduction to the topic: religion and safety - 2. The religious factor and the connections with labor in the Italian context. The role of substitute for collective bargaining and trade union agreements - 3. Protecting worker's safety versus the employee's right to religious freedom - 4. Some hints to the European community landscape - 5. Concluding remarks and perspectives de iure condendo - NOTE

1. Introduction to the topic: religion and safety

The proposed topic, “Labour Law and Forms of Manifestation of Religious Convinctions”, finally provides a starting point for awareness of an important change of perspective. If on one hand religion [1] has always been traditionally seen as a private affair, of which management was not to get involved with, today instead, in an increasingly global labor market, attention to this issue can only enter into part of the skills that a good manager must possess. This also happens because, as a study carried out a few years ago highlighted [2], workers who feel free to discuss their religious values in the workplace are more calm and, consequently, more productive. So a good manager should not only be able to avoid discrimination against anyone for their beliefs, but also be able to favor their expression without having a negative impact on the company’s economy [3]. There are many jurisprudential cases that have recently leaped onto the headlines concerning the subject and that obtained a pronouncement from the Court of Justice, with judgments that are already providing reference. Just think of the case of the Muslim girl, who did not offer her hand during a job interview in Sweden [4], or the France and Belgium regulations to ban the Islamic veil in the office [5] or, again, the case of that pastry chef who refused to provide a cake for a same sex marriage, since contrary to his Christian values [6]. The topic imposes, in my opinion, a reflection not only on the aspect of discrimination [7], on which these judgments have been pronounced and about which here we will not proceed to further elaboration, for reasons of time, but also on the state of regulation of this issue within Italian labor law [8]. Moreover, the topic requires reflection also on the inevitable existing connection between the individual right to worship freedom [9] and the right to protect workers’ health. The problem arises in terms of particular delicacy with reference to those workers who belong to religious cults different from the Catholic one and, in particular, to Islamic faith workers [10]. These, according to the Islamic calendar, stick to food and drink fasting for a whole month (Ramadam) and this lasts from the first light of dawn until sunset. What must be avoided, in fact, is that the favor discipline envisaged by national legal systems for certain religions, as happens in our country with Catholic [continua ..]

2. The religious factor and the connections with labor in the Italian context. The role of substitute for collective bargaining and trade union agreements

Meanwhile, it should be noted that the principle of religious freedom finds, within the Italian context, recognition in the art. 19 of the Constitution and that this recognition has a broad content, as it includes both the freedom to profess one’s belief, to propagate it and to exercise its cult. On the broader topic of religious freedom, however, the same Constitutional Court has ruled, first of all, reiterating that religious freedom belongs to everyone, independently of the contents of the professed faith and that its effective and full enjoyment shall not be subject to the conclusion of an agreement [12]. Circumstance, the latter, not to be overlooked, given that, as will be seen later with the Islamic religion, such agreements do not exist. Starting from this unavoidable basis, the Court then reiterated that the constitutionally protected rights are subject to a balancing, in order to avoid that one of these becomes predominant over the others. This means that religious freedom must be promoted and protected by ensuring the needs of political coexistence and respect for everybody’s rights. For some time the doctrine has dealt with the right to religious freedom set in the world of labor, where, for example, it has studied the religious work, the work in organizations of a (religious) tendency and the work employed by the Holy See and the Jewish Communities [13]. However, it is under the last of the aforementioned profiles, namely the freedom of religious exercise, that the connections between religious freedom and the world of labor come to take on entirely new connotations of absolute originality where they refer for the first time to Islamic religion. In particular, following the massive immigration of Islamic workers into our country and with the inclusion of these in the world of labor, which began in the last two decades of the last century and is still in progress, particularly prevalent in some Italian geographical areas (such as Lombardy, Veneto and Emilia-Romagna) and with very significant percentages compared to the total workforce, there is a need to face the phenomenon in order to provide satisfactory solutions for the sake of both workers and companies. From this point of view, therefore, Islamic faith worship practices strongly affect the employment relationship [14] from working time specific point of view. Consider, for example, the respect for certain mandatory precepts for every faithful Muslim, such [continua ..]

3. Protecting worker's safety versus the employee's right to religious freedom

Within the Italian context, moreover, with more specific reference to the aspects of safety in the workplace, some cases leaped to the headlines due to a deficient business management, which would require a deeper reflection on the subject. Protagonists of the story were the farmers’ associations and the labor unions of Mantua, worried by the limit imposed by Ramadam in eating and drinking. As it is known, Muslims cannot drink or eat from dawn to dusk during the Ramadam. However, during a working day spent in the fields collecting melons, watermelons and vegetables, not drinking water exposes the worker to very high illness risks. This is why Confagricoltura (National Confederation Of Agriculture) and the three trade unions CGIL, CISL and UIL, gathered in the Committee for safety in the agriculture sector in Mantua, signed a document that provides for the obligation to take water, under penalty of temporary suspension from work. In particular, in this document, given that: «The protection of health comes before any religious practice», it is advised «to take water in abundance before and during work», providing that: «Those who work in particularly hot and humid days and times are obliged to take water, under penalty of temporary suspension from work, or the interruption of the relationship in case of relapse, according to the contractual rules and the laws in force». In this case, therefore, the employer’s response was not to meet and facilitate the employees’ religious practices, but rather to sanction them, up to the dismissal in case of relapse, in the face of a persistence in the religious practice of fasting and non-consumption of drinks [25]. An immediate reaction came from the Islamic community of Mantua and its spokesman, Ben Mansour, according to which: «No one can force a person to interrupt his fasting, even if the health of the person comes before anything, even before Ramadam fasting.», provided that: «The risk assessment must be left to the concerned person. However, it never happened that someone felt ill during Ramadam for these reasons. A man died in the fields a year ago, but he was an Indian, not a Muslim following Ramadam» [26]. Now, faced with episodes like these, the need for the legislator or, at least, for the interpreter, to take a position, aimed at rebalancing religious freedom and protecting the health of workers professing their [continua ..]

4. Some hints to the European community landscape

The topic, as well as having an every-day obvious practical tangible implication within the various business realities operating in our country, as well as in other foreign countries, has recently leaped onto the headlines also following statements by the Danish minister for the integration Inger Stojberg. In a commentary published in the Bt tabloid, Stojberg [31] revealed her doubts about the compatibility between Koran precepts, ancient precepts of over four hundred years, with the current market economies, starting from some practical examples, such as, for example, that of the bus drivers whose reflexes would be put at risk by fasting during daylight hours. Thus, in order to “avoid negative consequences for the rest of the Danish society”, the minister called for an extreme solution according to which Ramadam workers should inevitably benefit from work permits, thereby triggering inevitable controversy. Therefore it’s interesting to dwell on the discussion about whether the proposed Danish solution can be judged as good or not. As noted above, the Danish Minister, having taken note of the situation arising from the practice of Ramadam, has theorized a completely new solution. It is a matter of imposing the use of permits to practicing Islamic workers, but the question that arises here is whether an imposition from such institutions can be considered lawful. As it is known, permits represent a derogation and mitigation of the principles concerning contract termination and correspondence, producing a conservative effect of the essential employment relationship aspects, namely keeping the job, conserving seniority and remuneration [32] in exchange for an exemption, albeit temporary and justified, from the obligation to perform work. In Italy, articles 2 and 3 of the National Constitution establish the interests protected by the institution of the permits, since the first provision «recognizes and guarantees the inviolable rights of man, both as an individual and in social formations» and art. 3 aims to ensure equal treatment of citizens also from a religious point of view. What is leaving us puzzled is imposing the use of a permit by public authority, since the opposite is justified when the concerned person applies for it. That is exactly the opposite of what the Danish Minister theorized, who instead imposes a fruition, that is recognizing the employer the possibility of requesting the employee to [continua ..]

5. Concluding remarks and perspectives de iure condendo

After this brief excursus on the subject in question, in conclusion the positive fact is that, through national and company contracts, our society has perceived the problem, trying to dictate a regulation which is certainly still perfectible, but represents at least a first step towards a general discipline on the subject. The best solution seems to give workers leave, breaks and permits [34]; however, since these institutions cannot be imposed by the company and must be used at the worker’s request, the question of how this «emergency» can be managed is still open, in the hypothesis in which the worker does not spontaneously apply. Indeed, it is necessary to highlight the inevitability of acknowledging that the religious factor is the engine of contemporary society, as an element of group identity and belonging, as well as a moment of cultural diversity for individuals and peoples. Furthermore, we must be aware of the fact that denying religious freedom «affects the dignity of people within their work environment and in their access to economic instruments» [35], with a lowering in the quality of life of the affected ones, a worsening in their integration conditions and even an influence in their career choice [36]. Provisions for negotiation such as those mentioned above and such as, for example, the territorial framework agreement between CGIL, CISL and UIL and Confindustria Monza and Brianza for the development of good practices on immigration issues of July 25th, 2013 [37], represent deflationary tools useful for not further weighing up the judicial charge, as well as for defusing social tensions in view of a composition of contrasts and greater integration [38]. In this sense, then, even bargaining becomes «inclusive», as it aims to bring the religious factor into the company organization with particular reference to working hours, weekly rests, holidays and organization of company canteens, in order to eliminate inequalities and divisions among workers [39]. In addition, employers must take steps to prepare specific safety measures to protect their Islamic employees, introducing special measures within the risk assessment. As former US President Thomas Jefferson used to say: «Religion is a blessing if it reawakens the civil spirit; it is a “curse” if it becomes an excuse for discrimination».

NOTE