On 19 February, Assogrocery and the trade unions NIdiL, CGIL, FeLSA, CISL and UILTemp signed a collective agreement that grants protection for “shoppers”, i.e. collaborators who prepare and deliver shopping to customers’ homes using the client companies’ digital platforms.
The agreement implements the provisions of Article 2, paragraph 2 of Italian Legislative Decree no. 81/2015, which applies to so-called “principal-organised” (“etero-organizzate”) collaborators, which explicitly exclude the automatic application of subordinate employment legislation in the presence of collective agreements that provide for specific economic protections for collaborators.
The agreement provides that the “shoppers” remain self-employed to the extent that they are granted the possibility of freely choosing when to carry out the work, choosing the slots indicated by the platform and also being able to withdraw their availability.
From a financial point of view, among the most important measures, there is the recognition of a minimum remuneration of EUR 12.50 per assignment (lasting one hour) and an availability allowance of EUR 1.30 with guaranteed increases for Sunday and holiday work.
The agreement also provides specific protection for illness, which takes the form of the suspension of the account and the payment of a daily allowance upon the occurrence of specific events, as well as maternity protection, for which financial compensation is provided and the maintenance of the collaboration relationship through the suspension of the account.
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The Court of Cassation, under ruling no. 21537 of 20 August 2019, declared the unilateral termination by the employer of the collective agreement before its natural expiry date unlawful, even if said contract is withdrawn from its trade association (in this specific case, Confindustria).
Facts of the case
The District Court had partially reformed the first instance decision, confirming it insofar as it had rejected the objection of the Federazione Italiana Lavoratori Chimica Tessile Energia Manifatturiera – CGIL Provinciale [Provincial General Confederation of Italian Workers] and the counterclaim of the employer company against that decision. The Court considered the conduct of the company to be anti-union, involving its failure to inform and consult a representative trade union regarding the negotiation and subsequent conclusion of a new collective agreement with the other trade unions.
The Court of Appeal found that the employer company, having withdrawn from Confindustria, was no longer required to comply with the trade union agreements signed by the association of the sector (in this specific case, Federgomma) and, therefore, was free to apply to its employees the National Collective Bargaining Agreement referred to in the company agreement.
The trade union that signed the contract with Federgomma appealed in cassation against the decision of the Court of Appeal, to which the Company stood up to with its defence.
The decision of the Court of Cassation
Firstly, the Supreme Court referred to its previous opinion, according to which in the collective agreement, the possibility of termination only applies to the contracting parties, i.e. the trade unions and employers’ associations, whilst the individual employer is not permitted to withdraw unilaterally therefrom, not even on the grounds of excessive costs under Article. 1467 of the Italian Civil Code, except in the case of company agreements entered into by the individual employer with local trade unions.
The Court then referred to another previous opinion in respect of which the employer is granted the right to withdraw from a post-corporate collective agreement entered into for an indefinite period of time and without a predetermined expiry date. This is because the agreement cannot bind all the contracting parties forever. Otherwise, the cause and social function of the collective bargaining agreement would be invalidated, the governance of which mustalways be based on a constantly evolving socio-economic reality.
Again, according to the Court, this principle is valid provided that the withdrawal is exercised in accordance with the criteria of good faith and fairness in the execution of the agreement and must not be detrimental to the intangible rights of workers, resulting from the previous, more favourable, regulations and entered definitively in their assets.
In this context, the Court refers to two rulings (please see ruling 14511/2013 and ruling 24268/2013), according to which, in our legal system, there is no obligation for the employer to negotiate and enter into collective agreements with all trade unions, with the possibility of signing a new collective agreement with trade unions other than those that have negotiated and signed the previous agreement coming under negotiating autonomy.
However, in the Court’s opinion, the issue in question in this specific case is the application of the collective agreement until its natural expiry date, in the absence of notice of termination by the eligible persons.
On this point, the Court considers that there is no principle or rule which would lead to the conclusion that a new collective agreement can be applied before the expiry date of the collective agreement currently in force, which the parties have undertaken to comply with.
As a result, the Supreme Court referred the ruling back to the District Court, with a different composition, which shall be responsible for reconsidering it based on the principles set out in the ruling in question, in addition to the settlement of litigation costs.
The Court of Cassation, in judgement 21357/2019, stated that a company cannot unilaterally withdraw from the collective agreement signed by the employers’ association to which it adhered before its expiry. This, even though this contract has become too expensive over time.
The facts
The Court of Appeals of Turin upheld the decision of first instance when it had rejected the opposition of the Federazione Italiana Lavoratori Chimica Tessile Energia Manifatture FILCTEM [Italian Federation Chemical Textile Energy Manufacturing Workers] – CGIL [Italian General Confederation of Workers] Provincial of Turin and the counter-claim of the employer company against the aforementioned decree, which had declared the anti-union nature of its conduct. This conduct consisted in not having informed and consulted the FILCTEM trade union about the negotiations that resulted in the agreement of 13 December 2011, involving the extension to all employees of the specific collective bargaining agreement of 29 December 2011 in its final version, concluded with FIM CISL, UILM, FISMIC, UGL and Associazione Quadri e Capi Fiat [Fiat Executives and Leaders Association].
The District Court, denying the inferred anti-unionism, confirmed the legitimacy of the stipulation of a new collective agreement with the trade unions in full or in part different (even by sector – metalworker) than those who had stipulated the previous one. In deciding in this sense, the Court of Appeals had referred to a ruling of the Supreme Court, according to which there is no obligation in the legal system for the employer to negotiate and enter into collective agreements with all the trade unions, the possibility of signing a new collective agreement with the trade unions falling within the autonomy of negotiations even different from those that had negotiated and signed the previous one.
The reason given for concluding the different contract was that in eight of the thirteen plants the CCNL for the metalworking sector had been applied even before 1 January 2012, to which was added the fact that the majority of the 27 RSU of the five plants in which the CCNL for the rubber-plastic sector was applied was not attributable to FILCTEM – CGIL, as was the majority of the 58 RSU of all the plants.
FILCETEM appealed against that decision to the Court of Cassation, entrusting the challenge to a single reason to which the company filed a counter-claim.
The decision of the Court of Cassation
The Court of Cassation, in upholding FILCETEM’s appeal, referred to a well-established orientation according to which“in the collective labour agreement the possibility of termination is the sole responsibility of the contracting parties, i.e. the trade unions and employers’ associations, which normally also regulate the consequences of termination; the individual employer, therefore, is not allowed to unilaterally withdraw from the collective agreement, not even on the grounds of its excessive burden, pursuant to Article. 1467 Italian Civil Code, resulting from its own situation of economic difficulty, except for the hypothesis of company contracts entered into by the individual employer with local trade unions of the workers” (see Cassation. 8994/2011, Cass. 3296/2002, and Cass. 15863/2002 reiteration by Cass. 25062/2013). Therefore “it is not legitimate for the employer to unilaterally terminate the applied contract even if it is accompanied by a reasonable period of notice. Only at the time of the contractual expiry will it be possible to withdraw from the contract and apply a different one on condition that the conditions set out in art. 2069 of the Italian Civil Code are met“ (cfr. Cass. 25062/2013).
The employer must be granted the right to withdraw from a collective agreement under general law concluded for an indefinite period and without predetermining the expiry date, since the contract cannot bind all the contracting parties forever. Otherwise, the cause and social function of the collective bargaining would be worthless, the discipline of which, always modelled in terms of time that are not excessively extended, must be configured on a constantly evolving socio-economic reality. It is understood that the withdrawal must be exercised in accordance with the criteria of good faith and fairness in the execution of the contract and must not be detrimental to the intangible rights of workers, arising from the previous more favourable rules and entered definitively in their assets (see Cass. 25 February 1997 no. 1694; Court of Cassation 18 October 2002 no. 14827; Court of Cassation 20 September 2005 no. 18508; Court of Cassation 20 December 2006 no. 27198; Court of Cassation 20 August 2009 no. 18548; Court of Cassation 28 October 2013, No. 24268). There is, however, no similar early termination option for collective agreements with a predetermined duration.
In view of the above, in the opinion of the Supreme Court, the application of a new national collective bargaining agreement cannot be allowed before the scheduled expiry of the one currently being applied, which the parties have undertaken to comply with.
In this context, according to the Court of Cassation, the company’s argument that a possible second-level contract may give the employer the power to withdraw early from a higher-level collective agreement cannot be accepted either.
The Court of Cassation, however, overturned the ruling and referred the case back to the Court of Turin, in a different composition, which will carry out the new examination on the basis of what it highlighted.
