With judgment no. 27541 of 22 October 2026, the Employment Section of the Italian Supreme Court identified the criteria for assessing the comparative representativeness at national level of trade unions for the purpose of establishing workplace union representations (RSA). The Supreme Court clarified that such assessment must be carried out with reference to the specific business sector in which the company operates, taking into account membership data and, where available, electoral data.
The judgment falls within the framework established by Constitutional Court judgment no. 156/2025, which declared Article 19, paragraph 1, letter b), of the Workers’ Statute unconstitutional insofar as it did not allow workplace union representations (RSA) to be established also by trade unions that are comparatively more representative at national level. Following this ruling, the right to establish an RSA is therefore no longer exclusively linked to the signing of the collective bargaining agreement applied at the relevant production unit or to participation in the related negotiations.
In the case at hand, a trade union had brought proceedings seeking recognition of its right to establish an RSA within a production unit, claiming that it met the requirement of greater representativeness. The lower courts had dismissed the claim on the basis of the wording of Article 19 of the Workers’ Statute prior to Constitutional Court judgment no. 156/2025. The Supreme Court, having to apply the new regulatory framework to the pending proceedings, considered that a new assessment of the trade union’s representativeness was required.
The Supreme Court therefore focused, first of all, on identifying the scope within which such assessment should be carried out, clarifying that representativeness at national level cannot be understood by reference to “the entire world of work throughout the whole of Italy”, but must instead be assessed by reference to the specific business sector in which the company actually operates.
For the purpose of identifying the relevant sector, objective elements relating to the activity actually carried out by the company are relevant, including the corporate purpose and ATECO code indicated in the Chamber of Commerce extract, the company’s INPS social security classification, its VAT registration certificate and the collective bargaining agreement taken into account by INPS for the purpose of determining the minimum contribution base. The Court also clarified that the employer may challenge, even before any court proceedings are initiated, an incorrect identification of the relevant sector by the trade union seeking to establish an RSA.
As regards the measurement of representativeness, the Supreme Court identified membership data, represented by union memberships or union dues authorisations, and electoral data, consisting of the votes obtained in workplace union representation elections, as the relevant criteria, to be given equal weighting where both are available. Where electoral data are unavailable or incomplete, the assessment may be carried out on the basis of membership data alone.
The resulting figure must then be compared with the average representativeness of the trade unions that are signatories to the leading collective bargaining agreement in the relevant sector. The Supreme Court also excluded the automatic application of the minimum 5% threshold applicable to public-sector employment, clarifying that more than one trade union may qualify as comparatively more representative.
Finally, particular importance is attached to the burden of proof. According to the Supreme Court, the trade union seeking to establish an RSA bears the burden of alleging and proving that, at the time it takes the relevant initiative, it is comparatively more representative at national level within the specific business sector concerned. Such evidence may also be provided by means of simple presumptions, provided that they are serious, precise and consistent.
In conclusion, the judgment clarifies that, for the purpose of establishing an RSA, a trade union’s representativeness within the individual company is not sufficient. Its comparative representativeness at national level within the specific sector in which the company operates must instead be assessed on the basis of objective criteria and the available membership and electoral data, with the trade union bearing the burden of proving that the relevant requirements are met.