National Collective Labour Agreement for metalworkers – violation of the prior information obligation is anti-union conduct (Norme & Tributi Plus Diritto – Il Sole 24 Ore, 21 March 2022 – Alberto De Luca, Stefania Raviele)

During proceedings for anti-union conduct under Art. 28, Law no. 300/1970 brought by the FIOM CGIL against the Italian branch of a multinational group as part of a collective dismissal procedure due to the cessation of production activities, the Court of Ancona, Employment Section, held that the employer, who omitted the consultation procedure under art. 9 National Collective Labour Agreement (“CCNL“) for workers in the private metalworking and plant installation industry and directly initiated the consultation procedure for collective dismissal under Articles 4 and 24, Law no. 223/1991, carried out anti-union conduct. On 10 December 2021, during a prior meeting, the company management informed the trade unions of the decision taken and immediately initiated the collective dismissal procedure. According to the union, such conduct was contrary to the provisions of Articles 9 and 10 of the National collective Labour Agreement on prior information obligations for companies with more than 50 employees and more than 150 employees. Furthermore, the conduct was contrary to Directive 2002/14/EC transposed by Legislative Decree no. 113/2012 requiring that the firm inform the European works council and the 5 July 2018 supplementary company agreement regarding the content and periodicity of the trade union information and the principles of fairness and good faith in contracts. The action was to remove the effects of the anti-union conduct with the annulment of the collective dismissal procedure, reputational compensation and non-pecuniary damage from discriminatory conduct under art. 28, Legislative Decree no. 150/2011. The Company opposed the action stating it had informed the trade unions about the termination of the company’s activities the moment it knew about it and that the information obligations under the National Collective Labour Agreement and the supplementary company agreement were to be considered covered by the procedure under Articles 4 and 24, Law no. 223/1991, carried out anti-union conduct. The Company concluded that the appeal should be dismissed, and the applicant pay the costs of the proceedings. It added that the action of the trade union was vexatious, it should pay compensation to the defendant, as under Art. 96 of the Italian Code of Civil Procedure. During the trial, evidence from four whistle blowers was examined. After hearing them, the Sole Employment Judge concluded that the appeal should be upheld concerning the alleged violation of the obligations to consult trade unions as set out in the national and company agreements, distinguishing between the information obligations on companies with more than 50 employees and those on companies with more than 150 employees. The Court highlighted the National Collective Labour Agreement distinguishing between cases where the employer must inform the unions if asked, from those where information is an obligation regardless of their request, for companies with more than 50 employees (and up to 150) and expressly provides that the procedures under Law 223/1991 cover the consultation procedures.

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