The third Labour Section of the Civil Court of Rome, by ruling 4354 dated 8 May 2019, stated, the conciliation report signed by the worker in the trade union, can be appealed within the period referred to in Article. 2113 of the Civil Code, where the national collective bargaining agreement does not govern the institution of conciliation and its procedure and if the union representative does not provide effective assistance.
The facts
An employee of a company operating in the metalworking sector, formally hired with effect from 21 April 2015 and dismissed on 16 May 2016, challenged before the Court of Rome the conciliation report signed by the trade union on 21 April 2015 whereby she had waived all claims related to the employment relationship with the same employer as of 21 January 2003. In particular, the applicant claimed that (i) she had worked for the same employer as of January 2003 under a series of uninterrupted contracts of employment; (ii) she had been induced by the employer to sign, on 21 April 2015, a trade union conciliation report with any waiver of her previous relationship as the only way to be able to proceed with her recruitment; (iii) she had never met the trade union representative before the meeting and that the latter had merely been a by-stander at the meeting. The worker therefore concluded that the relationship was an employment relationship as from 1 January 2003 and that the employer was ordered to regularise her contributions and pay the relevant differences in pay. The employer was sued, resisting the adverse questions and insisting on the validity of the minutes signed in the trade union and for its challengeability under the last paragraph of Article. 2113 of the Civil Code.
Reference legislation
The institution of relinquishments and transactions in the field of employment relations is governed by art. 2113 of the Italian Civil Code which, after having sanctioned, in the first paragraph, the invalidity of relinquishments and transactions concerning the rights of the employee deriving from mandatory provisions of the law and of collective agreements or contracts, establishes, in the second paragraph, “the challenge must be proposed, under penalty of forfeiture within six months from the date of termination of the relationship or from the date of the renunciation or transaction, if these have occurred after the same termination“. The same provision also specifies, in the last paragraph, that the challengeability regime does not apply “to the conciliation that has taken place pursuant to articles 185, 410, 411, 412-ter and 412-quater of the Code of Civil Procedure”.
The decision of the Court of Cassation
The Court of First Instance before which the case ruled on the appealability of the report. In particular, according to the Court of First Instance, the minutes were signed in a place other than those listed in the last paragraph of Article 2113 of the Civil Code, which are to be regarded as obligatory.
According to the reconstruction offered by the Judge, the incontrovertible settlements are to be considered only and exclusively those signed before the conciliation commission established: (i) with the ITL possessing territorial jurisdiction, or (ii) in accordance with the provisions of the national collective labour agreement applicable to the relationship inferred in court.
In the case examined by the court of merit, the CCNL did not regulate the institution of conciliation and the minutes were signed at the company headquarters before a trade union representative. The minutes thus signed were subject to the right of appeal referred to in the second paragraph of Article 2113 of the Italian Civil Code.
Moreover, it appeared from the investigation carried out, according to the Court, that the trade union representative did not provide any real assistance to the employer, having merely attended and remembered that the minutes would become conclusive. The above was not sufficient to ensure that the worker was fully aware of the content and effects of the agreement she was to sign.
It therefore concluded that the appealed was admissible.
Conclusions
By the relevant ruling, the Court of First Instance, in part, offered a restrictive interpretation of Article 2113 of the Italian Civil Code and, in part, confirmed a well-established case-law approach.
In the present case, the restrictive interpretation of Article 2113 of the Italian Civil Code is to be found in the part in which it is stated that the conciliations signed by the trade unions do not fall within the provisions of the last paragraph of the legislative provision in question if not carried out pursuant to Article 412 ter of the Italian Civil Code. In fact, the latter provision would appear to be a “closure” provision and not an exhaustive list of places of conciliation.
The provision is, in fact, listed as “Other methods of conciliation and arbitration provided for by collective bargaining” and provides, “The conciliation and arbitration, in the matters referred to in Article 409, may also be carried out at the offices and in the manner provided for by the collective agreements signed by the most representative trade unions“. In addition, Article 2113 of the Italian Civil Code refers to Article 411 of the Italian Civil Code, which expressly refers to the third paragraph of the Code as the place where trade unions can carry out their conciliation procedure.
On the other hand, the principle whereby, in the absence of effective trade union assistance, the report can be challenged is a principle which has been emphasised several times in the case-law both on the substance and on the lawfulness of the case. Finally, the Court of Cassation, by judgment no. 9006 of 1 April 2019, confirmed that waivers and transactions concerning rights provided for by mandatory provisions of law or collective agreements, contained in minutes of conciliation concluded by the trade union, cannot be appealed by the worker. This occurs in that the assistance provided by the trade union representatives has been effective, so as to enable the worker to become aware of what right to renounce and to what extent.
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Appealability of agreements signed with the involvement of trade unions
https://www.delucapartners.it/en/our-verdicts/2017/voided-if-the-worker-has-been-deceived/
