The unilateral withdrawal of the employer from the currently applicable National Collective Bargaining Agreement (NCBA) is unlawful (Newsletter Norme & Tributi n. 139 Camera di Commercio Italo-Germanica – Vittorio De Luca, Elena Cannone)

The Court of Cassation, in its judgment no. 21537/2019, declared the unilateral termination of the applied NCBA by the employer before its natural expiry date unlawful, even if accompanied by adequate notice. This power lies solely with the signatories of the NCBA, i.e. the trade unions and employers’ associations. According to the Court of Cassation, the individual employer is not allowed to unilaterally withdraw from the collective agreement, not even on the grounds that it is excessively onerous, resulting from its own difficult economic situation. Therefore, the employer is bound by the NCBA even if it dissociates from the trade union organisation to which it belongs. However, the employer has the right to withdraw from the NCBA signed for an indefinite period, without predetermining the expiry date. This is because the contract cannot bind all the contracting parties forever, otherwise the development of industrial relations would not be allowed, thus frustrating the cause and the social function of collective bargaining. It is understood that the withdrawal must be exercised respecting the principles of fairness and good faith and without affecting workers’ intangible rights. And in this case, in the opinion of the Court of Cassation, there is no obligation on the employer to negotiate and enter into the NCBA with all the trade unions. The possibility of signing a new contract with trade unions, even if different from those that have negotiated and signed the previous one, falls within the employer’s negotiating autonomy.