DLP Insights

Business transfer: RSA does not automatically lapse (Newsletter Norme & Tributi n. 158 Camera di Commercio Italo-Germanica – Vittorio De Luca, Elena Cannone)

Categories: DLP Insights, Publications | Tag: Industrial relations, cessione ramo d'azienda

31 Mar 2022

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.

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