Article 27 - Workers' right to information and consultation within the undertaking
Key facts of the case:
The Court of Cassation was required to rule over the legitimacy of a judgment of the Court of Appeal, which confirmed the judgment of the Naples Ordinary Court. The latter had annulled the lay-off of Carmine Galasso by Poste Italiane S.p.a. The Naples Ordinary Court considered that the lay-off, due to the firm’s necessity to reduce labour costs, was to be considered unlawful since there was no clear and rational explanation, either at local or at national level, on the redundancies relating to the worker’s managerial position. For this reason, the decision adopted by Poste Italiane S.p.a. was considered irrational and discriminatory by both the Court of Appeal and the Naples Ordinary Court.
Outcome of the case:
The Court of Cassation decided to annul the judgments of the two abovementioned courts, which had annulled the lay-off. More specifically, the Court of Cassation held that when a private firm decides to reduce the number of employees in order to lower labour costs, it is sufficient that the firm itself provides a plan with the minimum number of workers that need to be dismissed. Moreover, the employer shall facilitate and implement a negotiation procedure with trade unions, which are in charge of determining the criteria to be used in order to identify the workers to be dismissed – i.e. a worker’s proximity to retirement. In the case at hand, the Court of Cassation ruled that these steps had been taken and that the lay-off was to be considered valid.
It should in fact be recalled that already in Directive 75/129/EEC on collective dismissals, the main tool for workers’ protection, is represented by the right to information and consultation in the workplace. The employers willing to implement collective dismissals shall absolutely respect such right, allowing for the establishment of negotiations aimed at finding an agreement with the counterparts on any possible solution, which takes into consideration, as much as possible, also the social and personal conditions of the workers concerned. These information rights (descending exclusively from Community law) were then shaped as fundamental social rights of both individuals and their representatives (labour organisations) in Article 27 of the EU Charter of Fundamental Rights, according to which ‘workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices’. This very important provision opens the ‘Solidarity’ chapter of the EU Charter and was therefore placed before the formulation of various other socio-economic rights. Furthermore, the ‘explanations’ on the EU Charter (referred to also in Article 6 of the TEU to guide judges’ interpretation), which indicate the sources of each and every right, make reference to the directive on collective dismissals as the source of this right, amended for the last time by Directive 98/59/EEC. Therefore, in accordance with the supranational legislator’s intention, the whole safeguard system of workers’ interests in the case of collective dismissals is centred on the activation of labour organisations’ role with a view to both mitigating the social costs of a reduction in production, and ensuring transparent and rational choice patterns that take into account the social impact of the employer’s decision. This should be done trying to identify the most reasonable solutions. For this reason, the supranational system conferred on labour organisations these information rights, enshrined in the EU Charter, which represents an essential tool to ensure protection as per EU directives transposed through Law No. 223/1991.
