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17/11/2015

Inderogabilità, derogabilità e crisi dell’uguaglianza

WP C.S.D.L.E. “Massimo D’Antona”.IT – 276/2015


Questo lavoro è destinato agli Scritti in onore di Raffaele De Luca Tamajo, di prossima pubblicazione.



The essay deals with the relationship between inderogable labour law rules and the individual autonomy of the employment contract parties, which has always been one of the most sensitive issues in the history of labour law. Within that historical process, the inderogable character of labour legislation, indeed, has always represented one of the foundation of the whole employment protection system, insofar as it had been basically identified with the employer’s obligation not to differentiate treatments among employers. By this way, inderogability has been functioning as o sort of “golden rule” ensuring, among other things, the principle of equality. However, recourse to the possibility of pejorative derogations of labour legislation is always more frequently admitted through collective agreements and even through individual autonomy. The author explores such developments by taking into account the substantive values and interests at stake, and by connecting them to the increasing devaluation of the principle of equality in labour law. 

The second part of the essay is dedicated to the analysis of the most recent Italian legislation on the matter: from art. 8 of Law n. 148/2011, considered by the Author as severely jeopardising the principle of inderogability, to the labour reform of the Renzi government, further favouring the possibility of derogating legislation through autonomous sources. 

Conclusions are drawn in a problematical way. While defending the value of inderogability, the author does not deny the need to look at new techniques and models of employers prerogatives’ control, based on proportionality and/or reasonableness of different treatments.

author(s): Fontana, Giorgio
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