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Judgement date :05/07/2022
In this case, the European Committee of Social Rights (ECSR) found Italy’s treatment of “socially useful workers”, and the differences between their social security contributions and those of regular workers, to be in breach of Article 1§2 and of Article E read in conjunction with Article 12§1 of the Revised European Social Charter (RESC).
The complainant organization, trade union “Unione Sindacale di Base (USB)”, alleged that Italian legislation and case law do not adequately protect “socially useful workers” in Sicily and Campania who carry out regular work which should be assigned to employees under permanent or fixed-term contracts.
In its reasoning, the ECSR first addressed the issue of "who is considered a worker". It considered that “socially useful workers” who have carried out tasks within public administrations for an extended period, who have become a part of those administrations and who carry out tasks similar to those that are carried out by the regular workers of the public administrations, can be considered “workers” within the meaning of the RESC and the alleged abuse of their contracts can therefore be assessed under the provisions of the RESC. [Para. 55]. Considering all the information at its disposal and in view of its preliminary considerations, the ECSR decides to assess this complaint under Article 1§2 and in respect of Article E in conjunction with Article 12§1 RESC. [Para. 61].
The ECSR considers that the mere fact that “socially useful workers” exist and carry out work for public administrations for certain periods of time cannot in itself be regarded as contrary to the RESC, provided that effective measures exist to prevent abuses arising from the recourse to indefinite prolongation of “socially useful workers’” contracts and provided that effective remedies are available and accessible in case of such abuse. [Para. 90]. Nevertheless, on the basis of the evidence and the examples available to the ECSR, it does not consider it demonstrated that an adequate balance has been struck between the need for flexibility and the right of “socially useful workers” to earn their living in an occupation freely entered upon. [Para. 96].
Consequently, the ECSR considers that there has been a disproportionate interference with the rights of this group of persons to earn their living in an occupation freely entered upon, and it thus holds that there is a violation of Article 1§2 RESC. [Para. 98].
As to Article E read in conjunction with Article 12§1 RESC, USB alleged that “socially useful workers” do not have any social security protection that would guarantee them a pension similar to that received by regular workers of the public administrations hired under permanent or fixed-term contracts. [Para. 101].
The ECSR reiterates that a distinction is discriminatory with regard to Article E where it lacks objective and reasonable justifications, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (European Roma Rights Centre (ERRC) v. Bulgaria, Complaint No. 31/2005, decision on the merits of 18 October 2006, §40). [Para. 108].
The ECSR found that there is no objective and reasonable justification for the differential treatment of “socially useful workers” who work for 20 hours per week and who do not contribute to their pension voluntarily [para. 114] and that consequently, the ECSR holds that there is a violation of Article E read in conjunction with Article 12§1 RESC in respect of this group of persons. [Para. 117].