The Supreme Court on subjective scope of enterprise bargaining agreements

The Court of Cassation – with decision no. 27115/2017 – pronounced on the issue relating to the subjective effectiveness of company collective agreements. The Court recognized their erga omnes effectiveness but – at the same time – denied any binding effect towards workers registered in dissenting trade unions, unless they do not intend to adhere to the agreement.

The decision – respectful of fundamental principle of trade union freedom – seems to reconcile the protection of workers’ collective interests, given that it recognizes to them the right to take action against the company collective agreement stipulated by trade unions other than one to which they are signed up.

The dispute arises from a claim filed by a trade union organization against a company, which – according to claimant – had held an anti-union behaviour, consisting in having applied the enterprise bargaining agreement also to workers belonging to other trade union organization.

As it is known, Article 39 of Constitution establishes the trade union right to stipulate collective bargaining agreements with binding effect for all workers to which the agreement refers.

Nevertheless, Article 8, paragraph 3 of Legislative Decree no. 138/2011 converted with modifications into Law no. 148/2011, established that the most representative trade unions can stipulate enterprise bargaining agreements in order to regulate certain aspects of working organization and production.

These agreements introduce an uniform regulation of labour relationships – albeit their effect is limited to a specific company or part of it – with binding effectiveness towards trade unions of both employees and employers that have subscribed the agreement, as well as towards their members (workers and employers).

Given the above, the Supreme Court, with decision no. 27115/2017, has clarified the subjective scope of company collective agreement.

At this regard, the Court has recognized to enterprise bargaining agreement the same binding effect of collective bargaining agreement, as an act suitable to introduce a uniform regulation of labour relationships in being in a company.

However, the enterprise bargaining agreement may waive in peius (for workers) the provisions contained in the National Collective Bargaining Agreement, given that the principle expressed by Article 2077 c.c. refers exclusively to the relationship between individual and collective employment contract.

The change in economic and productive condition cannot be extended in automatic to all employees not registered or belonging to another trade union; the erga omnes effectiveness of enterprise bargaining agreements cannot, indeed, prevail over the principle of trade union freedom, guaranteed by Article 39 of Constitution.

As a consequence, the enterprise bargaining agreement is unable to extend its effectiveness to workers in disagreement with it.

The Supreme Court has, therefore, recognized – as general rule - the erga omnes effectiveness of enterprise bargaining agreements, as long as the choice of workers belonging to other trade unions not to subscribe to them is respected.