With its order no. 11182 of 6 April 2022, and following case law, the Court of Cassation ruled that during collective agreement take overs, “in pejus” amendments for the employee are admissible except for the acquired rights. The employee claim to maintain rights arising from a collective rule that no longer exists must be excluded.
Several workers brought an action before the Employment Tribunal to obtain a declaration of their right to receive the remuneration item known as the “former individual ad personam company bonus” established by the collective agreement, after the employer company terminated a supplementary company agreement. The employees requested the amount owed to each of them with effect from June 2015. The Employment Tribunal assigned to the case rejected their appeal.
The local Court upheld the first instance ruling, and excluded that the above remuneration item could constitute, “due to novation, an individual bonus, included in the individual contracts and as such, not susceptible to non-consensual amendments.”
In the Court of Appeal’s opinion, the literal wording of the relevant article of the second-level agreement did not allow the parties’ intention to change the collective nature of the fixed company bonus into an individual emolument.
The Court of Appeal ruled out that it could be a right that had already become part of the workers’ assets (acquired right), since it was a claim to maintain more favourable collective regulations.
The losing workers appealed against the Court’s ruling in cassation.
The Court of Cassation rejected the appeal brought by the employees and confirmed the correctness of the local Court’s logical-legal process. It ascertained that the former individual company bonus found its only source in the terminated collective regulation. The Cassation confirmed that the principle according to which the collective agreement provisions are not included in individual contracts but operate externally as a heteronomous source. It follows that the legitimately terminated collective source provisions are not susceptible to being preserved according to the most favourable condition criterion.
The worker cannot claim that a right deriving from a collective rule that has been superseded or replaced by a later rule, is definitively acquired.
The only limit in this matter, along with the constraints posed by art. 36 of the Constitution, is the intangibility of rights that have become part of the worker’s assets, as remuneration for a service already provided or a phase of the relationship already completed (“acquired rights“). It follows that the protection of acquired rights cannot be extended to claims to maintain more favourable collective regulations or to expectations arising from previous regulations.
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