Prepared by Francesca Tironi, Giulia Spalazzi and Sara Tanieli
On April 7th, 2021 the Italian Supreme Court issued an interesting ruling, the ruling no. 9307 of 2021, in which it affirmed that the solidarity contract may also be entered when a collective redundancy procedure is pending provided that, after the start of this last procedure, redundancies have occurred that could not be dealt with by the same.
The facts under assessment
In an appeal brought before the Court of Rome, an employee had claimed to have been unlawfully placed on solidarity leave with a reduction in working hours and salary and he therefore had requested the unlawfulness of the measure that reduced working hours. Because of the above, the employee has requested the Court to sentence the employer to reinstate the contractual working hours and to pay him portion of salary not received as a result of the above reduction.
The Court had partially accepted the employee’s appeal, declaring that he had been unlawfully placed on solidarity leave. Consequently, the judge had ordered the defendant company to reinstate the employee’s contractual working hours and pay him the portion of salary that he did not receive due to the above reduction as of November 9th, 2009.
The employer had then appealed against the ruling of the court of first instance, which was rejected by the court of second instance and appealed before the Supreme Court.
Before the Supreme Court, the employer has now requested the rejection of the Court of Appeal’s ruling, by arguing that the legislation in force at the time (but the provisions on this point have remained unchanged even under current legislation) did not provide for any incompatibility between the collective redundancy procedure already initiated and the solidarity contract, even when initiated for partially overlapping company areas. Indeed, according to the plaintiff, for the purposes of verifying the lawfulness of the solidarity contract, “it was only important that, at the beginning of 2009, the voluntary collective redundancy procedure that had already been started for the entire company for around a year did not make it possible to deal with the redundancies that were occurring, with considerable intensity, […] as a result of the specific decline in the activities carried out by the services of which it was composed. And it was not possible to wait for the conclusion of the previous collective redundancy procedure, since otherwise the current crisis would have definitively compromised the productive activity […]“.
The grounds of the judgement
In its judgment, the Italian Supreme Court upheld the appeal of the employer, by reminding that the solidarity contract is a contractual collective agreement stipulated with the most representative trade unions at a national level in which a certain reduction in working hours is established on a daily, weekly or monthly basis in order to avert a situation of staff redundancy of a structural nature at the company.
Starting from this assumption, the Supreme Court then noted that the “[…] legal provision of the possibility that the reduction in working hours realizes an impediment, even partial, of redundancies implies […] recognition by Italian legislator of the possibility that a solidarity defensive contract intervenes during a collective redundancy procedure, whereas, however, the reverse situation, in which, in the presence of the solidarity contract so-called defensive […], the employer initiates a collective redundancy procedure, is to be considered unlawful”. Therefore, according to the Court, “after this type of contracts have been signed the employer cannot start a collective redundancy procedure – which necessarily assumes the stable reduction of economic activity – precisely because of the specific purposes which is preordained the conclusion of the solidarity contract, in connection with the sacrifice required of workers with the reduction of working hours and therefore of salary; but for the considerations outlined above, the opposite hypothesis is instead possible“.
Therefore, on the basis of the considerations widely made in the judgment, the Italian Supreme Court concluded that, for the purposes of verifying the lawfulness of a solidarity agreement, the mere fact that the solidarity agreement was entered into when the collective redundancy procedure was pending is not relevant. To this end, it is necessary to ascertain whether the latter procedure had “made it possible to deal with the redundancies that subsequently emerged, including the hypothesis in which the previous crisis situation has become worse, and that the seriousness of the reasons grounding the adoption of the solidarity agreement had been positively scrutinized by the Administration, as confirmed by the ministerial order admitting the workers to the wage supplement“.
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