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When there is no agreement on compensation with the unions

With No decision August 5, 2008 21138, the Supreme Court held that, in the absence of union agreement, can not be adopted only one selection criterion for the reduction of personale.Il case examined by the Supreme Court is that of a worker who challenged her dismissal as a result of intimatogli a collective procedure under Law No. 223 of 2001, which closed without agreement with workers' organizations and the adoption of only one element of the production requirements including those prescribed by law (retirement, family responsibilities, organizational and technical needs of production). According to the employee, the company would have to apply all the legal criteria of choice in competition with each other. Both the court that the Court of Appeal has, however, considered the correct choice for business use only one criterion. Called into question, the Supreme Court upheld the appeal brought by the employee, stating that in case of failure to reach an agreement with the union on the criteria of choice, the employer is obliged to apply these criteria of Article 5 of Law 223/91 in competition with each other. The Supreme Court, noting the existence of some previous deformed, said: "Article 4 of Law No 223/91 provides that the company can initiate the mobility, when you do not wish to re-employ all the workers suspended, giving prior notice in writing to the company union representatives or, failing that, the most representative trade union organizations. The declaration shall state, among other things, the reasons for the situation of excess and lack of reuse, the number, location and the company's professional staff surplus. The parties should undertake a joint review. Union reached the agreement, the company has the right to place workers on the move and shall specify the selection criteria. Article 5 of the Act provides that the selection of workers should be in relation to technical and production and organization of the business, according to the criteria laid down by collective agreements with unions or, failing that, according to the criteria , in competition with each other, of family responsibilities, seniority and technical production requirements. " The violation of the selection criteria, involves the annulment of the dismissal. "It is clear from a reading of the law - said the Supreme Court - such as the use of the single criterion of production requirements is possible only after agreement with the unions. Conversely, when there is no agreement, the standard is mandatory in the sense that the three criteria (seniority, family, production) must be used in competition with each other. " What in fact emerges from an examination of recent decisions in this area is the principle of "stiffness" in the sense that "up to the formulation of selection criteria, the employee must be in a position to know whether or not it will be retained in employment or will be placed on mobility, because the selection criteria should be identified as those positions will be eliminated. " The Court therefore affirmed the following principle of law: "In the absence of agreement with the unions, the selection criteria to be applied in competition with each other. Their statement must be made in a clear and transparent so as to allow the start of the procedure to identify who will be expelled and those who remain at work. "