Union consultation procedure in the event of a transfer of business as a going concern
The legislation on the transfer of business as a going concern which in certain cases set forth the need for a prior trade union consultation procedure does not at all provide for an obligation to provide information on the projects of the transferee. Nevertheless, the Court of Bari established the anti-union behavior of the transferee on the assumption that the latter in the communication initiating the union consultation procedure had not indicated the future initiatives of the transferee, in particular with regard to the preservation of employment levels (Court of Bari, January 21, 2022).
Challenge of dismissal for justified objective reason communicated with the request to start the consultation procedure
Pursuant to Article 7 of the law No. 604 of 1966, the dismissal for just cause and for justified reason, if issued by an employer with more than 15 employees, must be preceded by a communication made by the employer to the local Labor Office of the place where the employee performs his/her duties which is also sent to the employee for information ("conciliation procedure").
The Supreme Court has established that if in said communication there is already the employer manifestation of the willing of dismissal and the employee challenges said dismissal, the subsequent confirmation of the dismissal, after the negative outcome of the conciliation procedure, does not require a new challenge of dismissal (Supreme Court decision No. 9639 issued on March 24 2022,).
Tacit application of National Collective Bargaining Agreement (“NCBA”)
The application of a NCBA can also be tacit and for conclusive facts through the application of the relevant contractual clauses. Therefore, the employer who wants to withdraw from the NCBA must send appropriate communication to the unions. (Court of Vicenza 23 March 2022).
Avv. Guido Brocchieri
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