The Court of Bari, in its 6 April 2022 ruling, stated that the conciliation at the trade union under art. 411, third paragraph of the code of civil procedure, completed with the assistance of a union representative who did not belong to the union with which the worker was registered, invalidates the related waivers and settlements, making them disputable under Art. 2113, paragraph 4) of the Civil Code.
The employee challenged the settlement agreement before the Employment Tribunal. This agreement was signed at the trade union office where he waived claims on entitlements and salary differences in exchange for the advance payment of part of the severance indemnity.
Reviewing the events of his employment relationship with the defendant company, the worker objected that he had signed the agreement, in the presence of the UGL trade unionist, at the unilateral instigation of the employer and without any shared intention. He claimed that he had never been a member of that trade union and never asked for its assistance, invoking the declaration of nullity of the settlement report signed with the company.
The Court of Bari, in justifying its decision, referred to previous case law according to which, for waivers and settlements to be valid, it is essential “that the worker had the assistance of their union representatives” (see Court of Cassation, labour section, 03/09/2003, ruling no. 12858).
Whatever the legal configuration of the relationship between the union and the union member may be, the ruling makes it clear that only the worker’s union representatives are qualified to assist them and protect their interests. This prevents the invalidity that would otherwise pollute the act of waiver or settlement. Other forms of presence cannot be considered capable of removing the waiver and settlement from the legal invalidity regime mentioned above.
Nor, in the court’s view, can any value be connected to the assignment given by the worker to the representative at the same time as/when? signing the settlement report. The assignment was given at the same time as the settlement which made it impossible to prove the worker received assistance.
Given the ruling, which follows case law, it can be concluded that, if the assistance to the worker during a protected proceeding was provided by the representative of a trade union to which the worker was not a member, the related waivers and settlements will be considered subject to invalidity and challenge (within the six-month term) under Art. 2113 Civil Code.
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