The Court, with ruling 6495 of 9/3/2021, as per art. 30 of Law No. 300/1970, confirmed union body members have the right to paid time off for meetings. Use for other purposes can justify dismissal. According to the Court, the abstract relevance for punishing the worker’s conduct requires real verification of its seriousness and consideration as just cause for termination. The assessment of proportion is assigned to a judge. In this case, the manager’s dismissal for just cause was disproportionate based on analysis of the alleged conduct and preliminary investigation results. The manager was charged with being arbitrarily absent from work, having carried out activities unrelated to the reason for time off. However, the worker had not attended any meeting, but had conducted activity related to his job. Therefore, according to the Court, the judges had rightly overturned the manager’s dismissal considering his disputed conduct to be punishable with a conservative penalty.

The Cassation Court, in ruling 3542, published 11/2/2021, reiterated case law – if there is no law requiring collective contracts be written based on the freedom of form principle – a unwritten company agreement is still valid. An agreement can be made verbally or by implication. Based on freedom of form and the literal interpretation that certain contracts need a specific form, this freedom must “be found for decisive acts (…), like mutual dissent (…) or unilateral withdrawal (or termination)”.  And, such freedom is established, the party objecting to unilateral withdrawal bears the burden of proof. Thus, the objecting party must demonstrate the existence of an effective verbal cancellation and the purely confirmatory nature of a later communication. According to the Court termination can also be demonstrated by declaratory proof. It also holds that there are no legal impediments to the possibility of testimonial proof because in a labour trial the civil code testimonial proof limits for contracts do not apply and because such limits do not refer to unilateral acts.

Under order no. 27757, published 3/12/2020, the Cassation Court confirmed that renewal of a National Collective Bargaining Agreement (CCNL) only signed by some employer associations, has no effect on application of clauses regarding pay even for companies that belong to non-signatory unions. In detail, a worker obtained an order for payment, part for failure to pay contractual increases in the sector CCNL and part due to the contractual increases in the renewed CCNL. The order was upheld in the first instance, while in the second it was revoked and the company sentenced to pay the difference between the amount of the order and the sum it paid to the worker as a one off for the settlement reached between the workers’ union and employers’ unions that had not initially signed the renewal. According to the Court, appealed to by the employer, in employment the remuneration under the CCNL acquires, as a general rule, a “presumption” of meeting the principle of proportionality and adequacy in the contract economic provisions including in internal relationship between the single compensations established therein. 

Under order no. 8265/2020, the Court of Cassation defined the representative requirements that a second-level company agreement must contain to be indisputable to third parties, including INPS (National Institute for Social Security). The order disallowed contribution reduction on performance bonuses based on a company agreement signed annually by the employer and a workers’ representative. Ruling in INPS’s favour, the Court stated company agreements were comparable to the binding effect of national collective agreements, even if they were intended to be applied to a company or part of it. This was because they were not a sum of individual contracts but deeds involving trade union autonomy and a plurality of collective workers. In the Court of Cassation’s opinion, a company agreement protects the collective interests of the company’s working community and any inseparability of the resulting regulations justifies its “erga omnes” effectiveness. The Court said company agreements between the employer and a non-unionist workers’ representative do not permit conditions for contribution reduction because they do not meet the representative requirements. In the Court’s opinion, they have the nature of individual employment contracts, albeit with multiple members or stakeholders.

The Court’s ruling 1 on 2 January 2020, stated that the requirements of art. 19 of the Workers’ Statute to establish union representatives, with the rights referred to in section 3, should not be confused with the principles stated in art. 28 of the Statute (unfair labour practice repression). Art. 19 requires signing of national collective agreements (or provincial or company collective agreements, but applied in the company) or union participation in negotiation of these agreements, as workers’ representatives. Art. 28 only requires the association to be national. The procedure is for cases where protection of the union’s collective interest to freely exercise its prerogatives is challenged. This interest is distinct and autonomous from individual workers’. The Court of Cassation declared the employer’s transfer of 80% of workers registered or affiliated to a trade union from one plant to another to be an unfair labour practice, even if the company’s underlying needs were legitimate. The employer’s conduct was considered to be harmful to the collective interests of the union. In the Court’s view, the statistical element, which reveals a situation of disadvantage for the union, gives rise to a presumption of discrimination. The employer must provide proof to the contrary.