In the event of an employee transfer, there is no burden on the employer to prove that the employee cannot work at the original location, having only to prove the causal link between the transfer decision and the reasons underlying it (see Supreme Court decision dated November 8, 2021, No. 32506).
Portion of business as a going concern - Notion
For the purposes of the transfer of business as a going concern provided for by Article 2112 of the Italian Civil Code, it is essential the existence of the functional autonomy of the transferred business portion, i.e., its capacity, already at the time of the spin-off from the transferor, to provide for a productive purpose with its own functional and organizational means and, therefore, to carry out, without significant additions by the transferee, the service or function carried out within the transferring company, regardless of the service supply contract stipulated between the parties. Accordingly, who intends to make use of the effects provided for by Article 2112 of the Italian Civil Code which derogate from the principle of the necessary consent of the assigned contractual party pursuant to Article 1406 of the Italian Civil Code must give evidence of the existence of the related operational requirements (see Supreme Court decision dated December 10, 2021, No. 39394).
Transfer of business as a going concern - Applicable national collective agreement
In the event of a transfer of business, or a portion of business, as a going concern the provisions of Article 2112 of the Italian Civil Code apply so that the transiting employees are subject to the national collective bargaining agreement applied by the transferee, even if more unfavorable, given that said employees become part of new organizational reality and are subject to a changed context of rules, including salary. The former national collective bargaining agreement may be applied only if the employment relationships with the transferee are not regulated by any collective agreement (see Supreme Court decision dated December 10, 2021, No. 39395).
Bankruptcy of the employer - Order of reinstatement
The bankruptcy of the employer does not prevent the adoption of a reinstatement order pursuant to Article 18 of Law dated May 20, 1970 No. 300 (the so-called Workers’ Chart), either because the bankrupted employer may be authorized to continue, on a provisional basis, its activity or the employee may be entitled to certain benefits (for example, a supplemental economic treatment) related to the decision of the bankrupted employer to continue, on a provisional basis, the business activity. However, in order to identify his/her interest in bringing a legal action, the employee must demonstrate a punctual and important reason that supports the request aimed at the adoption of a reinstatement order, without being able to hide behind abstract reconstructions only in law (see Supreme Court decision dated December 13, 2021, No. 39699).
Implicit reception of national collective agreement
The implicit acknowledgment of a national collective bargaining agreement can occur if the employer applies the related clauses to the individual employment relationship for a constant and prolonged time (see Supreme Court decision dated December January 4, 2022, No. 74).
Avv. Guido Brocchieri
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