We know that labour law is, first of all, oriented to protect the employees; so in every system the other part of the contract of employment - the employer - is considered only in a secondary perspective; also because the employer (rectius the employers) is a subject regulated in other norms which normally regard commercial activities (the enterprise is the employer).
For this reason, we have not a special labour law notion of employer, such a way it could be possible to say that we have not a legal notion of "normal" employer. But we have a "social – typical" figure of employer, which allows the construction of a relationship between "normal" and "special". And so the most considerable criterium to point up, at first, is that the notion of "normality" is the integral application of the most part of the mandatory labour rules, according to law, collective agreements and customs.
Although it is very difficult to focus, in a certain sense, a precise notion of "speciality", we can say that the employer could be considered as "special" when, considering its structure (organization) and its activities (functions and aims or goals), a different labour discipline applies, in terms (e.g.) of higher or lower extension of employers’ powers.
This report tries to analyse justifications of these differences and the effects on individual and collective labour relationships.
According to this point of view, we have considered as special some employers, such as public administration, the so- called "tendency organisations", small- medium/size enterprises, co- operatives and, generally speaking, the "no- profit sector".
Starting from the first of these employers (public administration), speciality is strictly related to both functions and organization.
The so called "tendency organizations" are another example of special employer. These enterprises’ activity is ideologically oriented: political parties, trade unions, newspapers, religious schools and so on. We think this could be a relevant element of speciality.
Work co- operatives could be considered another special employer. The workers are at the same time shareholders (owners) of the company, so it could be difficult to understand the relationship between employer and employee. Their speciality is even linked to their aims: e.g. mutuality.
The speciality of small and medium size enterprises is in their structural element: the dimensions, based on the number of employees, and not on their aims or activity.
2. EFFECTS OF "SPECIALITY" ON INDIVIDUAL AND COLLECTIVE RELATIONSHIPS.
Speciality, broadly speaking, influences application of labour law discipline: it means that the extension of the employer’s powers gets lower or higher.
In the public sector the public interests imply a different organization: the purpose this employer achieves - the public interests - has an impact on the contents of its power of organization. For instance, the distribution of working time - decided by the management - has to guarantee also a good combination with the time of services to costumers (e.g. in a hospital 24 hours a day the first aid service has to be guaranteed). Besides, in every system we found a principle of "equal access" to administration, even if there are different ways of selection and hiring.
From a collective point of view, the public interests sometimes influence collective relationships: an important example is the Italian legislation on collective bargaining. The law establishes who should negotiate and sign the collective agreement on behalf of the public administration (ARAN) and which trade unions are to be admitted to the negotiating and stipulating the contract.
On the other hand, sometimes this doesn’t happen. In the British system the public interests have not an impact on these aspects. It happens because the labour relationship is considered in the same way, apart of the nature of the employer.
In our discussion it arose anyway that the public sector could be considered as a "model" for the other sectors. It means that many rights are recognized to employees, such as positive actions against discrimination, equal access, protection of disadvantaged peoples. In France the public administration promotes the access of young people to labour market. Moreover, the role of the trade unions is valued in the public sector. E. g. in G. B. the public administration recognizes more frequently the trade unions than in private sector.
The extension of the employer’s powers gets higher in the case of tendency organizations. In the so- called tendency organisations the particular activity of the employer is strictly linked to an ideological aim. Employer’s powers are stronger than the other employers.
In the other words, the employer can pretend that the employee has the same ideological orientation, e.g. religious or political opinions. This prerogative of the employer depends on the constitutional justification of the freedom of association and of the freedom of expression.
The effects of this special connotation are focused on the field of dismissal: first, the conflict of opinions (which normally is not relevant for the dismissals) is considered as a possible reason for dismissal; second, apart of the size of the establishment, the employer has the right to choose between re-hiring the employee or paying a compensation, without any obligation to reinstatement.
According to the jurisprudence, this regulation applies to employee who exercises services connected to the ideological purposes.
About the co- operatives, the problem is that the employer and the employee are often the same person.
About small- sized enterprises, the main effects of speciality regard rules on dismissals. In some systems there is a more flexible regulation about protection against unfair dismissals. For instance, in Italy, the employer, in case of unfair dismissal is not enforced to reinstate the employee. In Germany, there aren’t any duties to justify the dismissal; in Spain there isn’t a wide development of collective bargaining.
3. Justification of special rules (SUCH AS different standards of protection).
After having (very briefly) analysed the effects of "speciality" on labour relationships, we wondered whether the differences, in terms of applicable discipline, could be considered justified. In fact, the different ways of exercising employers’ prerogatives modify the standards of employees’ protection.
In our opinion these justifications sometimes are the result of balancing conflicting juridical positions, considered relevant according to the basic principles of each system. The existence of a Constitution (in some countries) consents to individuate these basic principles.
A typical example of balancing different interests can be found in the labour relationship discipline and, in particular, of dismissals in tendency organizations. The particular ideologically oriented activity justifies stronger powers of control, not only on the services but also on the expressions of personality. In this case, the balancing regards, on one hand, the principle freedom of expression (from the employer’s point of view) and, on the other side, the need to protect employees.
About employment relationships in small enterprises, the justification of a lower protection against unfair dismissals is based on the high relevance of confidence (faith, the so- called intuitus personae). A lack of confidence definitively compromises the individual labour relationship. An indirect confirmation of the different treatment reserved to small enterprises could be found in the E.C. Treaty (art. 137) even though on the other side we have to consider the rules about free competition, which impose some limits to States, to ensure equal treatment to all European enterprises.
At the end of our brief analysis, we would find out some conclusions.
The research of justifications for each deviation has underlined that the concept of speciality is a conventional and relative notion. Then, using the criteria of justifications through a verify of constitutional (or national and E.C. basic) principles, can consent an elaboration of other notions of speciality about the employer’s position.
In fact we have to consider that the employer is principally an actor on the economic market. So the structural modifications of the traditional asset of the market, also trough the technological innovations of market globalisation, require the elaboration of many employer’s notions. In such way we can say that the speciality is the only possible "normal" condition of the employer’s concept.
So it would be possible to consider a notion of special employer which takes into account the situation of labour markets, especially of local labour markets, adapting structures and functions of the employer’s prerogatives and, in consequences, extending or reducing the standard of protection of employees.