I. Guidelines and general principles
“(…) the second Italian NAP-BHR intends to strengthen the application of the UNGPs through a series of complementary measures, referring in particular to the following guidelines:
– addressing issues and practices related to the protection of the environment, health, decent work and ‘Human Rights Defenders’, also in the face of the new challenges posed by the gig economy and in the context of the National Recovery and Resilience Plan (NRRP), in correlation with the challenges of multi-dimensional post-Covid-19 reconstruction” (p. 7)
b) Italy and the United Nations Guiding Principles on Business and Human Rights (UNGPs)
“(…) in order to ensure the continuity of the dialogue carried out in the drafting phase of the first NAP with non-institutional stakeholders , provisions were made for the establishment of a consultative group. This was usually conveyed in an open dialogue meeting with the GLIDU (following each of the two annual meetings) whose participants were invited to propose contributions on the issue representing business associations, trade unions, non-governmental organizations, civil society, human rights defenders, experts in the field and the academic world.” (p. 10)
IV. Italian ongoing activities and future commitments
b) Foundational Principles
“(…) strengthen cooperation with trade unions, human rights defenders, nongovernmental organizations and civil society, and ensure adequate support because of their essential role in promoting and protecting human rights in business and production processes;” (p. 14)
Fight against corruption
“In Italy Whistleblowing was introduced by the anti-corruption law (Law No. 190 of 6 November 2012, “Provisions for the prevention and repression of corruption and illegality in public administration”), adopted in compliance with recommendations and conventional obligations emanating from the UN, OECD, Council of Europe and European Union. This law provides for a system of enhanced protection for public employees who report unlawful conducts. Law No. 179 of 30 November 2017 strengthened the preexisting whistleblower protection for public employees and partially extended the same protection to the private sector.
With regard to the public sector, the law provides that a public employee who reports illegal or unethical conduct in the public interest cannot be retaliated against through sanctions, dismissal, demotion, transfer to other offices or other measures that have a negative effect on his/her working conditions.
The protection is guaranteed to: employees of public administrations; employees of public economic entities; employees of private law entities subject to public control; employees and collaborators of private companies that provide goods, works or services to the public administration.
Employees can report a violation :
– to the person responsible for the prevention of corruption and transparency,
– the National Anti-Corruption Authority (ANAC), and
– to the judicial or accounting authority.
The law covers misconduct and ethical errors, including (but not limited to): criminal conduct; violations of codes of conduct; mismanagement of public resources; nepotism; 51 accounting irregularities; violations of environmental and occupational safety regulations, etc.
The protection entails, albeit within certain limits, the confidentiality of the whistleblower’s identity. The main protection mechanisms also include: the reversal of the burden of proof on retaliation on the administration, the reinstatement of the employee whose dismissal has been found to be retaliatory, and a financial penalty against the author of the retaliatory act or conduct ranging from € 5,000 to €30,000 imposed by ANAC.
A desk service is available to whistleblowers who report cases of unlawful conduct in their workplace. The reports are acquired through a dedicated software, which guarantees confidentiality, security and reliability of whistleblowers. ANAC has made the computer application used for the acquisition and management of reports of wrongdoing by employees (“Whistleblower” software) available for re-use by administrations and companies with a European Union Public License (EUPL), which allows free use without further authorization from ANAC.
Focusing on the private sector, the law provides some mandatory whistleblowing requirements for those companies that have chosen (or choose) to implement a “231 Model”. In particular, companies must provide communication channels that allow the submission of reports based on precise and factual elements connected with crimes as listed in Legislative Decree No. 231/2001. These communication channels must guarantee the confidentiality of the whistleblower in the management of the report; in addition, at least one alternative reporting channel must be provided which guarantees – using ad hoc software – the confidentiality of the whistleblower’s identity; the 231 model must also prohibit acts of retaliation, direct or indirect discriminatory actions against the whistleblower for reasons connected to the report/alert.
Sanctions must be introduced in the disciplinary system adopted with the 231 model, both for those who violate the whistleblower protection measures and for the whistleblowers themselves who make malicious or seriously negligent reports that turn out to be unfounded; discriminatory measures may be reported to the Labour Inspectorate and to the competent trade union organizations.
In addition, discriminatory dismissals, job changes and any discriminatory measures taken against the whistleblower will be void unless the company can demonstrate that they are in no way related to the whistleblowing activity.
EU Directive 2019/1937, which regulates the “protection of persons who report breaches of Union law”, is currently being transposed in Italy, introducing common rules aimed at ensuring the protection of employees who report wrongdoing or breaches (“Whistleblowers”) in the Member States’ legal systems.
It should be noted that some large Italian companies, announcing a policy of “zero tolerance” towards fraud and corruption, have been pioneers in this field, having created protected channels of reporting with a guarantee of anonymity even before the entry into force of the above-mentioned law. With the support of Transparency International – Italy, they have recently voluntarily adopted an online whistleblowing platform that is more advanced than the tools currently in use and that conforms to the highest standards of confidentiality.” (p. 50)
Internationalization of companies
“Italy has participated in [the UN ‘Accountability and Remedy’] project, reporting the introduction of legislative measures aimed at this purpose and at facilitating even corporate structures for the introduction of remedial mechanisms-models, referring to multiple legal disciplines (contracts, competition, arbitration, labour law, consumer law, environmental law, privacy, non-discrimination and legislative measures for equality, protection of freedom of information and protection of whistle-blowers).” (p. 56)
V. Updating, Monitoring and Dissemination of the Plan
“(…) it is also worth highlighting how the multi-stakeholder approach has been translated in the promotion and preservation of a constant and fruitful dialogue with non-institutional actors (businesses, trade unions, civil society, human rights defenders, experts and representatives of academia)” (p. 60)
ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP
“49. Continue to support and promote in a multi-stakeholder framework the Guidelines on Business and Human Rights Defenders, through eventually of a pilot programme with the active participation and collaboration of a selected and significant group of Italian companies and civil society organizations” (p. 68)