By Order no. 1621/2021 of 30 December, the Court of Padua stated that there is no general obligation on the employer to negotiate: the employer may legitimately choose the trade union or unions with which to enter into negotiations, and even exclude some of them from the negotiations. Likewise, according to the Court, there is no obligation to negotiate separately. In the case at hand, FIOM CIGL filed an action under Art. 28 of Italian Law no. 300/1970 for anti-union behaviour against the employer – that had excluded it from the negotiations for the renewal of the agreement on the performance bonus (negotiations were only with the FIM CISL). In rejecting the claim, the Court pointed out that the employer cannot intervene in inter-union dynamics. Faced with the refusal of the FIM CISL to negotiate jointly, the company legitimately agreed to negotiate the renewal with the only union that had signed the agreement. Moreover, in the Court’s opinion, the requirement of actuality, necessary for the admissibility of proceedings under Art. 28 of Law 300/1970. In fact, once the company contract has been renewed, the interest of the applying trade union has ceased to exist.

By Order no. 40409/2021 dated 28 October 2021, lodged on 16 December 2021, the Court of Cassation reconfirmed the general principle that as collective agreements governed by ordinary law are an expression of the negotiating autonomy of the parties to the agreement, they must be considered valid and effective only within the time period agreed by said parties. The Court therefore holds that the provision that the agreement shall be valid until a new one has been concluded must be considered as the period of validity as it is a continuance in effect clause. In the case in point, the CCNL for private healthcare workers (2002-2005) provided that it would be effective “until conclusion of the new CCNL”. The Court believes that although this expression does not contain a precise chronological framework, it states the contracting parties’ intention to “be bound by the content of the agreement signed until a new one has been negotiated and signed”. The Court also clarifies that if a subsequent regulatory agreement is concluded, it shall be considered valid and effective for the signatory parties only and not for the trade unions that signed the previous agreement but not the amending agreement.

In judgment no. 20819 of 21 July 2021, the Joint Sections of the Italian Court of Cassation in confirming the decision on the merits, ruled that the clause attached to the airline cabin crew employment contract (entitled “Termination of contract”), which was the subject of the trade union’s action, is discriminatory. The clause in question – contained in the Irish National Collective Agreement applied by the sued company to its employees – is in fact aimed at preventing temporary cessation of work and other labour-related collective activities of any nature, on pain of annulment of the contract and loss of any salary increase, indemnity or shift change benefit. According to the Court of Cassation, the workers’ freedom of association is protected both by the Italian Constitution and by the Charter of Fundamental Rights of the European Union, since it may be the subject of “personal beliefs”. Indeed, the exercise of the rights included in the workers’ freedom of association is one of the possible expressions of “personal beliefs” that cannot be a basis for discrimination. Moreover, the Joint Sections have affirmed that when the trade union acts, as in the case at hand, in its own right to protect homogeneous individual interests of general importance, it may apply for – and obtain – compensation for non-monetary loss. In view of the above, the decision whereby the company was sentenced to compensate the suing Trade Union for non-monetary loss related to anti-union behaviour has been confirmed, including as to the amount, determined by the court of appeal, on an equitable basis, in Euro 50,000.

On 12 April 2021, the Palermo Court ruled that early withdrawal by a food delivery company from a fixed term cooperation agreement with a rider was invalid,  as it was the direct consequence of his refusal to accept the governing conditions of the collective agreement chosen by the company and signed by trade unions he had not joined. Citing supreme court case law on subjective effectiveness of collective agreements, the Court observed that under our industrial relations system a worker is not required to passively accept an unsatisfactory union agreement. The Court held that the company could only exercise early withdrawal in fairness and good faith, principles that were not observed as the termination was not “needed” and the non-continuation of the relationship evidently constituted “discrimination on trade union grounds”. The company was ordered to reinstate the worker at the same contractual conditions, pay the wages he would have received from unlawful termination to effective reinstatement and compensate non-material damage.

With decree no. 8609 of 28 March 2021, the Milan Court declared art. 28 of Law no. 300/1970 (“Workers’ Statute”) applicable to employer-coordinated freelance work as per art.  2 of Leg. Decree no. 81/2015. The judge did not hold the employer’s explicit reference to art.  28 above, sufficient for removing precautionary protection for companies that work with freelancers. The judge considered the company director’s conduct unfair labour practice. The company distributed a video message, asking its workers (shoppers) to join a new union, just to stipulate a new sector collective bargaining agreement.  This conduct was considered in conflict with Workers’ Statute art. 17 that prohibits founding or supporting worker unions with any means. It was even more serious because the message contained a description of risks and possible repercussions for the company, with consequences for the freelancers, if the union agreement was not signed. The Court held that not only had the company attempted to push the workers towards a certain union, but it also was able to learn the names of who followed its instructions and who did not.