Anti-union conduct: the Supreme Court moves beyond formalism and focuses on substance

With order no. 789 of 14 January 2026, the Italian Supreme Court addressed the issue of anti-union conduct by employers in relation to information and consultation obligations on health and safety matters, with particular reference to the exceptional context of the Covid-19 pandemic emergency.

Facts of the case

The dispute originated from an action brought pursuant to Article 28 of the Workers’ Statute by the territorial branch of a trade union.
The trade union complained of anti-union conduct by the employer for having failed, during the initial phase of the Covid-19 epidemic, to comply with its obligations of information and consultation on occupational health and safety.
At first instance, the Court of Bergamo upheld the union’s claim. However, the Brescia Court of Appeal, overturning the decision of the Court of First Instance, dismissed the union’s claims.

The Court of Appeal based its decision on two lines of reasoning:

• With reference to the monitoring rights provided for under Article 9 of Law no. 300/1970, it held that active standing belonged exclusively to the employees working in the company and to their internal representatives (R.S.A or ad hoc representative committees), thus excluding the territorial trade union as such,
• With regard to the breach of information and consultation obligations, the Court of Appeal emphasised the factual context of the time. It highlighted that the pandemic emergency was characterised by unknown risk factors, the absence of reliable scientific data and exceptional urgency, elements considered incompatible with the timing and procedures of ordinary trade union consultation. While acknowledging that the formal procedures had not been followed, the Court found that trade union relations had nevertheless been maintained through more informal means, such as personal contacts and WhatsApp messaging exchanged even between the company’s general manager and the provincial secretary of the trade union. On the basis of these findings, it concluded that, although “informal”, consultations had taken place and that no anti-union conduct could be established.

Against this decision, the union filed an appeal before the Supreme Court, relying on two grounds.

The Court’s decision

The Supreme Court dismissed both grounds of appeal, confirming the decision of the Court of Appeal and providing important interpretative clarifications.
With regard to the first ground of appeal, by which the union alleged a breach of Article 9 of Law no. 300/1970, the Court clarified the personal scope of the provision. It held that the article grants specific standing to engage with the employer on health and safety matters to “workers” and to “their representatives”. The Court emphasised the promotional function of the rule, aimed at encouraging the direct involvement of those who actually operate within the company. Accordingly, standing belongs to:
• individual workers;
• ad hoc representative bodies formed within the workplace community;
• company-level or unitary trade union representatives (R.S.A. or R.S.U.), given their internal nature.

By contrast, the Court excluded any general standing on the part of “any trade union organisation, even if operating at territorial level”, whose sphere of action is governed by the relationships established through collective bargaining.
With regard to the second ground of appeal, relating to the breach of information and consultation obligations provided for under the applicable CCNL, the Court developed its most significant reasoning.
While acknowledging that the collective agreement granted the union rights to information and consultation and that the standard procedures had not been followed, the Supreme Court considered the claim unfounded. It endorsed the factual assessment of the Court of Appeal, according to which, under the “extraordinary conditions of the Covid emergency”, the company had nevertheless maintained trade union contacts through the available means, thus excluding the existence of anti-union conduct.
The core of the decision lies in the legal principle according to which, for the purposes of the remedy under Article 28 of the Workers’ Statute, anti-union conduct must be assessed in terms of “objective anti-union character”.
This means that a mere formal breach of a statutory or contractual provision is not sufficient: a “real impairment” of trade union prerogatives and freedoms is required, must be assessed in light of the specific circumstances of the case.
The Court stated that:
“An employer’s breach of statutory or collective rules concerning information and consultation at trade union level may give rise to a presumption of anti-union conduct for the purposes of protection under Article 28 of Law no. 300 of 1970. However, such conduct does not exist where it is established that, due to justified contingencies, the interests in participation protected by those provisions have in fact been safeguarded, even through atypical and ad hoc forms which, although formally non-compliant, are objectively capable, in light of the existing factual situation, of ensuring their purposes to the extent possible”.
With this ruling, the Supreme Court adopts a substance-oriented approach, prioritising the effective achievement of the purpose of the rule over mere procedural formalism, especially in situations of extraordinary emergency.