The Court of Cassation, with its order no. 2289 of 2 February 2021, declared the failure to inform the trade unions in advance of the criteria to identify the workers to be placed under the redundancy fund and rotation methods unlawful.
Facts of the case
A company in receivership appealed to the Court of Cassation against a Decree by which the relevant local Court admitted an employee with priority right to the creditors’ list after they had been placed under the redundancy fund in breach of procedural and trade union representative (RSA) consultation rules. According to the Court, the losing company failed to make the communication referred to in Art. 1, paragraph 7 of Italian Law no. 223 of 1991 (“Criteria to identify workers to be suspended and rotation methods provided for in paragraph 8 must be the subject of the communications and joint examination provided for in Article 5 of Law no. 164 of 20 May 1975“).
The company objected to the employee’s lack of legitimacy to bring proceedings for having asserted a collective procedure defect, given that the agreement reached with the trade unions would have remedied the complained defect.
The Supreme Court of Cassation’s ruling
In rejecting the company’s appeal, The Court of Cassation stated that “for the specific criteria identifying workers to be displaced and the rotation methods, the verification of the communication adequacy (under art. 1, paragraph 7 of Italian Law no. 223 of 1991) must be carried out with an assessment in the abstract and ex ante and not in the practical and ex post.” If a redundancy fund that involves a temporary surplus of staff is activated, the work suspension measure is unlawful if the employer “whether it intends to adopt the mechanism of rotation or otherwise, fails to communicate to the trade unions the specific criteria, possibly different from the rotation, to identify the workers who must be suspended, for joint examination purposes, to verify the choice meets the criteria.”
The Court of Cassation observed that an obligation to notify the company and provincial trade union representatives of the criteria to identify workers to be suspended and the rotation methods (or alternative criteria) “provides a procedural guarantee and operates on a dual level of protection – trade union prerogatives and individual guarantees – fulfilling the function of placing the trade unions in a position to negotiate the criteria for selecting workers to be suspended and ensure the potentially suspended worker, the prior identification of selection criteria and the verifiability of the employer’s private power.”
As for the alleged remedial effect of the agreements reached with the trade unions, the Supreme Court stated that it is excluded. This was because the unions signed the agreement without being aware of the content of data to be processed.
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