Contrasting Ideas of Justice in the Law-Collective Bargaining Nexus: The Case of Wage Settlement and Litigation

This chapter examines the procedures and normative criteria through which judges address conflicts between the law and collective bargaining. Drawing on recent Italian case law on minimum wages, it focuses on litigation concerning the constitutional right to a just wage. Specifically, it reviews and analyses a series of recent judicial decisions that have overturned wage minima set by representative trade unions and employers’ associations in national sectoral collective agreements, on the ground that those minima were inconsistent with the parameters laid down in Article 36 of the Italian Constitution. This line of jurisprudence represents a significant departure from the traditional approach of Italian labour law. In the absence of a statutory minimum wage, wage levels in Italy have historically been determined through sectoral collective bargaining. Within this framework, judges have long adhered to a procedural conception of justice when adjudicating disputes over just remuneration, consistently relying on collectively agreed wage standards as fair benchmarks, provided that they were established by collective agreements concluded by representative trade unions and employers’ organisations. By moving from a procedural to a substantive conception of justice in wage determination, this new wave of case law has sparked a lively debate within Italian labour law scholarship. The debate is divided between a majority of scholars who support these judicial interventions and a minority who oppose them, voicing concerns about the erosion of collective bargaining autonomy and authority in wage setting. This chapter critically examines both positions, with the aim of elucidating their underlying rationales and rendering them accessible for comparative analysis. It argues that each position displays both strengths and weaknesses, as they are rooted in two distinct interpretations of the relationship between law and collective bargaining, reflecting competing conceptions of justice and legal rationality: substantive justice and legal positivism, on the one hand; procedural justice and legal pluralism, on the other.