With its order no. 11182 of 6 April 2022, and following case law, the Court of Cassation ruled that during collective agreement take overs, “in pejus” amendments for the employee are admissible except for the acquired rights. The employee claim to maintain rights arising from a collective rule that no longer exists must be excluded.
Several workers brought an action before the Employment Tribunal to obtain a declaration of their right to receive the remuneration item known as the “former individual ad personam company bonus” established by the collective agreement, after the employer company terminated a supplementary company agreement. The employees requested the amount owed to each of them with effect from June 2015. The Employment Tribunal assigned to the case rejected their appeal.
The local Court upheld the first instance ruling, and excluded that the above remuneration item could constitute, “due to novation, an individual bonus, included in the individual contracts and as such, not susceptible to non-consensual amendments.”
In the Court of Appeal’s opinion, the literal wording of the relevant article of the second-level agreement did not allow the parties’ intention to change the collective nature of the fixed company bonus into an individual emolument.
The Court of Appeal ruled out that it could be a right that had already become part of the workers’ assets (acquired right), since it was a claim to maintain more favourable collective regulations.
The losing workers appealed against the Court’s ruling in cassation.
The Court of Cassation rejected the appeal brought by the employees and confirmed the correctness of the local Court’s logical-legal process. It ascertained that the former individual company bonus found its only source in the terminated collective regulation. The Cassation confirmed that the principle according to which the collective agreement provisions are not included in individual contracts but operate externally as a heteronomous source. It follows that the legitimately terminated collective source provisions are not susceptible to being preserved according to the most favourable condition criterion.
The worker cannot claim that a right deriving from a collective rule that has been superseded or replaced by a later rule, is definitively acquired.
The only limit in this matter, along with the constraints posed by art. 36 of the Constitution, is the intangibility of rights that have become part of the worker’s assets, as remuneration for a service already provided or a phase of the relationship already completed (“acquired rights“). It follows that the protection of acquired rights cannot be extended to claims to maintain more favourable collective regulations or to expectations arising from previous regulations.
Other related insights:
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.
