By an order of 25 April 2022, the Court of Bologna held that the early termination by the employer, effective immediately, of the financial aspects of an enterprise bargaining agreement is anti-union behaviour. The contract in question was valid from 1 June 2019 to 31 March 2023 and was to be renewed year by year, unless terminated by either party with 6 months’ prior notice. The agreement also covered several emoluments, and had been supplemented in February 2020 by providing that said emoluments would be paid on certain dates in 2020, 2021, 2022 and 2023 to those staff who planned to use, in each year, the current annual leaves and part of the annual leave accrued in prior periods. The Court held that it was “utterly unlawful” for the employer to stop applying the financial clauses of the Agreement and paying the emoluments in question, based on the general lack of planning of the current and past annual leaves on the part of a few employees. In the Court’s view, there was no contractual provision or employee conduct that could justify the termination. The employer’s Termination “harms the image and credibility of the union that negotiated the agreements later disregarded”.
In ruling no. 95/2022, the Court of Vicenza held that the acceptance of a collective agreement may be tacit or by conduct, i.e., by actually applying its terms. Once a party can be said to have accepted the agreement, this is binding on such party. In the case at issue, three labour organisations had sued two companies, arguing that they had applied the UNIC CBA until September 2021, and its effective period had been extended to June 30, 2023. In the view of these organisations, the fact that the two companies stopped using the CBA and replaced it with another one from October 2021 constituted anti-union behaviour. According to the Court, evidence emerged during the proceedings that one of the companies had applied the CCNL by conduct, thus accepting the clause under which “the agreement as a whole shall be understood to be renewed year by year unless terminated six months before its expiration, by a registered letter with return receipt. If terminated, it shall remain force until replaced with the subsequent one”. Accordingly, in the Court’s view, the company’s intent to stop applying the CBA can only produce effects from 30 June 2023, so that the same remains in full effect until that date.
In circular no. 6/2022, the Ministry of Labour, provided some guidelines on the changes made by Decree Law. no. 4 of 27 January 2022 ( Decreto Sostegni ter [Support Decree ter]), to access wage subsidies for workers during the employment relationship.
The Ministry clarified that companies applying for the redundancy fund for business termination who run out of funding by 2022 can sign a transition agreement to access another 12 months of redundancy fund. During this period, the company must manage the remaining redundancies with active policy actions.
The Ministry discussed the possibility introduced by the Budget Law 2022, for companies that can access the Extraordinary Redundancy Fund (CIGS), of using the “reorganisation” reason to carry out “transition processes.” According to the legislation, the company must prepare a programme which, depending on the situation, can be shared with the Regions or the Ministry of Economic Development (Mise). This programme must outline any investments (without quantitative constraints) in place during the transition process and detail the technological and digital upgrading or ecological and energy renewal and sustainability or extraordinary safety measures.
The Ministry clarified that corporate reorganisation plans must be accompanied by complex measures to deal with inefficiencies in the management or production structure and actions aimed at digital, technological, ecological and energy company restructuring and transitions.
The Ministry stated that the transition agreement favours employment restructuring and is intended for those workers who cannot be reallocated and are at risk of redundancy after a company reorganisation or reorganisation programme.
The company applying for the measure cannot access further periods of extraordinary redundancy fund within the five-year period, which is not yet ended. To obtain the income benefit, the company must (i) have consulted with the trade union, specifying the workers at risk of redundancy for whom the measure is intended and ii) define with the Region the training and re-training actions for the re-employment and self-employment of workers. The personnel covered by the agreement will access a “collective reallocation” process, which will be clarified by Anpal.
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In a judgement of 21 December 2021, the Court of Milan held that, unless specifically stated otherwise in applicable law, a business transfer does not affect the continuity of employment and the maintenance of the rights and obligations arising from it, nor does it prevent the continuity of internal union offices and responsibilities based on pre-existing representation relationships [RSA], especially when the transfer concerns all the workers constituting the “electoral base” of the union representative, who has also been transferred to the transferee company. In the case at hand, a service company, having acquired 4 business units, informed the trade unions that (i) it would apply to the transferred employees its own NCBA in place of the one previously applied and, as a result, (ii) the RSAs of those units were “automatically and immediately terminated”. According to the First-Instance Court, this ‘automatic and immediate revocation’ would deprive the transferred employees of their trade union representation in the sensitive context of a business transfer, in addition to causing a marked imbalance between the two sides of trade union relations, and it is not consistent with the aims of Art. 6 of Directive 2001/23/EC.
During proceedings for anti-union conduct under Art. 28, Law no. 300/1970 brought by the FIOM CGIL against the Italian branch of a multinational group as part of a collective dismissal procedure due to the cessation of production activities, the Court of Ancona, Employment Section, held that the employer, who omitted the consultation procedure under art. 9 National Collective Labour Agreement (“CCNL“) for workers in the private metalworking and plant installation industry and directly initiated the consultation procedure for collective dismissal under Articles 4 and 24, Law no. 223/1991, carried out anti-union conduct. On 10 December 2021, during a prior meeting, the company management informed the trade unions of the decision taken and immediately initiated the collective dismissal procedure. According to the union, such conduct was contrary to the provisions of Articles 9 and 10 of the National collective Labour Agreement on prior information obligations for companies with more than 50 employees and more than 150 employees. Furthermore, the conduct was contrary to Directive 2002/14/EC transposed by Legislative Decree no. 113/2012 requiring that the firm inform the European works council and the 5 July 2018 supplementary company agreement regarding the content and periodicity of the trade union information and the principles of fairness and good faith in contracts. The action was to remove the effects of the anti-union conduct with the annulment of the collective dismissal procedure, reputational compensation and non-pecuniary damage from discriminatory conduct under art. 28, Legislative Decree no. 150/2011. The Company opposed the action stating it had informed the trade unions about the termination of the company’s activities the moment it knew about it and that the information obligations under the National Collective Labour Agreement and the supplementary company agreement were to be considered covered by the procedure under Articles 4 and 24, Law no. 223/1991, carried out anti-union conduct. The Company concluded that the appeal should be dismissed, and the applicant pay the costs of the proceedings. It added that the action of the trade union was vexatious, it should pay compensation to the defendant, as under Art. 96 of the Italian Code of Civil Procedure. During the trial, evidence from four whistle blowers was examined. After hearing them, the Sole Employment Judge concluded that the appeal should be upheld concerning the alleged violation of the obligations to consult trade unions as set out in the national and company agreements, distinguishing between the information obligations on companies with more than 50 employees and those on companies with more than 150 employees. The Court highlighted the National Collective Labour Agreement distinguishing between cases where the employer must inform the unions if asked, from those where information is an obligation regardless of their request, for companies with more than 50 employees (and up to 150) and expressly provides that the procedures under Law 223/1991 cover the consultation procedures.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
