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.
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:
Against this decision, the union filed an appeal before the Supreme Court, relying on two grounds.
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.
The Court was called upon to rule on several issues, including the refusal by a well-known food delivery company to communicate to the plaintiff trade unions the information required by Art. 1-bis of Legislative Decree of 26 May 1997 introduced by the Transparency Decree and requested by specific communication, dated 22 December 2022
It is anti-union conduct for a company not to provide to trade unions that request it with the information on the use and operation of automated systems, as provided for by Legislative Decree no. 104/2022, known as Transparency Decree.
This was established by Order No. 14491 of the Court of Palermo, dated 3 April 2023, which appears particularly important and significant – as well as for the concrete case – for assessing the impact of the disclosure obligations also regarding the so-called collaborazioni etero dirette (“structured cooperations”) pursuant to Art. 2, paragraph 1, Legislative Decree 81/2015 in general.
The Court was called upon to rule on several issues, including the refusal by a well-known food delivery company to communicate to the plaintiff trade unions the information required by Art. 1-bis of Legislative Decree of 26 May 1997 introduced by the Transparency Decree and requested by specific communication, dated 22 December 2022. In particular, it was requested to establish the anti-union nature of the refusal in question, pursuant to Art. 28 of Law 300/1970.
Art. 1-bis governs the additional information obligations to be provided to the employee if automated decision-making or monitoring systems are used. These are all those tools that, through the collection and processing of data by algorithm or artificial intelligence, are able to generate automated decisions.
The obligation to provide information also exists in the case of merely incidental human intervention, as indicated in the recent Circular of the Ministry of Labour no. 19 of 20 September 2022. The company was using its own algorithm that allows riders to access the app (and thus, to work) based on certain conditions: availability, location, proximity, personal settings, preferences and “other factors”, such as the likelihood of accepting a ride based on previous behaviour.
The company, in the present case, objected to the inadmissibility of the proceedings pointing out, on the one hand, that the riders are not actual employees but self-employed persons within the meaning of Art. 2222 of the Civil Code and, on the other hand, that in fact the principal cannot be considered an employer in the strict sense but a principal of self-employment services (thus lacking standing to be sued under Art. 28 Law no. 300/1970).
These assumptions were immediately refuted by the Court of Palermo which, referring to the consolidated and consistent case law on the point, sanctioned the fact that the relationship between principal and rider can be traced back to the case of structured collaborations referred to in Art. 2, paragraph 1, Legislative Decree 81/2015, as such falling under the application of the discipline (and protections) proper to employment relationships (among many, Civil Cassation, lab. sec., judgment no. 1663 of 24/01/2020).
Continue reading the full version published on Norme e Tributi Plus Diritto of Il Sole 24 Ore.
Other related insights:
The Court’s ruling 1 on 2 January 2020, stated that the requirements of art. 19 of the Workers’ Statute to establish union representatives, with the rights referred to in section 3, should not be confused with the principles stated in art. 28 of the Statute (unfair labour practice repression). Art. 19 requires signing of national collective agreements (or provincial or company collective agreements, but applied in the company) or union participation in negotiation of these agreements, as workers’ representatives. Art. 28 only requires the association to be national. The procedure is for cases where protection of the union’s collective interest to freely exercise its prerogatives is challenged. This interest is distinct and autonomous from individual workers’. The Court of Cassation declared the employer’s transfer of 80% of workers registered or affiliated to a trade union from one plant to another to be an unfair labour practice, even if the company’s underlying needs were legitimate. The employer’s conduct was considered to be harmful to the collective interests of the union. In the Court’s view, the statistical element, which reveals a situation of disadvantage for the union, gives rise to a presumption of discrimination. The employer must provide proof to the contrary.
