THE TRADE UNION REPRESENTATION AFTER RULING OF THE CONSTITUTIONAL COURT N. 231/2013
The judgment of the Constitutional Court . 231/2013 should be read and interpreted in the light of previous decisions of the same court that examined Article 19 of the Statute of Workers. Among these previous ones that most are considering are ruling no . 244/1996 ( and ordinances next to it )
With regard to the compatibility of Article . 19 described above with the Constitution , there is in fact a very close relationship between these legal decisions and the last sentence no . 231/2013.
With regard to the compatibility of Article . 19 described above with the Constitution , there is in fact a very close relationship between these legal decisions and the last sentence no . 231/2013.
The above link comes from the fact that in its judgment no. 244/1996 , both in judgment no. 231/2013 has been deemed , for the purposes of the recognition of the legitimacy of trade unions to benefit from the protection privileged , what matters is the representativeness of the trade union observed in practice.
therefore :
– If the representation is non-existent , the only signing of a collective agreement can certainly not be sufficient for the granting of such protection (judgment no . 244 of 1996).
– If the union is truly representative , his decision not to sign a collective agreement , the preparatory negotiations which have actively taken part nell’indicata garment, certainly can not be configured as evidence to deny the privileged protection itself ( judgment no. 231 / 2013 ) .
NOW, THEREFORE , confirmed the argument that the prerogatives granted to the unions , in the collective bargaining derived from the active role played in the process of formation of the contract .
This figure substantially , it is particularly important and can not be circumvented by purely formal elements which , on the one hand , its formal signing , or the other, only the failure to sign the contract on the part of a syndicate that was involved in the negotiations thanks to representativeness.
therefore :
– If the representation is non-existent , the only signing of a collective agreement can certainly not be sufficient for the granting of such protection (judgment no . 244 of 1996).
– If the union is truly representative , his decision not to sign a collective agreement , the preparatory negotiations which have actively taken part nell’indicata garment, certainly can not be configured as evidence to deny the privileged protection itself ( judgment no. 231 / 2013 ) .
NOW, THEREFORE , confirmed the argument that the prerogatives granted to the unions , in the collective bargaining derived from the active role played in the process of formation of the contract .
This figure substantially , it is particularly important and can not be circumvented by purely formal elements which , on the one hand , its formal signing , or the other, only the failure to sign the contract on the part of a syndicate that was involved in the negotiations thanks to representativeness.
In the latter part of the judgment , the Constitutional Court Appeals to the legislature directed to the identification of a selective criterion of union representation that would allow the recognition of the privileged protection of trade union organizations also ” in the case of the absence of a collective agreement applicable in the service production due to lack of activity or to the impossibility of negotiating to prevent a company agreement . “
The Court bears to the legislature the task of conforming to the Constitution , Article 19 merely envisage some possible solutions :
a) Evaluation of the representativeness of the index consisting of the number of subscribers ;
b ) Introduction of an obligation to negotiate with the unions that exceed a certain minimum threshold ;
c) Allocation under Article 19 of the Workers’ Statute of the character of a general reference to the contract system and not to the individual collective agreement in force applied in the production unit
d) Finally, the recognition of the right of every worker to elect trade union representatives in the workplace
The cardinal principle that says See arises in connection with their expected values in the Constitution. In particular :
Farm to enjoy trade union rights recognized by Title III of the Workers’ Statute, and above all the right to form a union representation company , is not only the union ” signer ” of a collective agreement ( even corporate ) applied to the production unit but the union that, as a representative , however, was another actor in the contract : even if in his own way and maybe then not sign any agreement .
Therefore, according to the Court, Article 19 , in the letter of the existing text is in contrast with the following provision of the constitution:
– Article 2 ( inviolability of human rights and social formations in both the compulsory nature of the duties of political, economic and social )
The Court bears to the legislature the task of conforming to the Constitution , Article 19 merely envisage some possible solutions :
a) Evaluation of the representativeness of the index consisting of the number of subscribers ;
b ) Introduction of an obligation to negotiate with the unions that exceed a certain minimum threshold ;
c) Allocation under Article 19 of the Workers’ Statute of the character of a general reference to the contract system and not to the individual collective agreement in force applied in the production unit
d) Finally, the recognition of the right of every worker to elect trade union representatives in the workplace
The cardinal principle that says See arises in connection with their expected values in the Constitution. In particular :
Farm to enjoy trade union rights recognized by Title III of the Workers’ Statute, and above all the right to form a union representation company , is not only the union ” signer ” of a collective agreement ( even corporate ) applied to the production unit but the union that, as a representative , however, was another actor in the contract : even if in his own way and maybe then not sign any agreement .
Therefore, according to the Court, Article 19 , in the letter of the existing text is in contrast with the following provision of the constitution:
– Article 2 ( inviolability of human rights and social formations in both the compulsory nature of the duties of political, economic and social )
Article 3 (formal and substantive equality and effective participation of all workers in the political, economic and social development of the country,
– Article 39 freedom of association, collective bargaining and union democracy erga omnes.
Article. 19, according to the Court, you can save, if you extend the meaning of “union signatory” of a collective agreement to encompass that of union, while still having a recognized representative, has therefore actively participated in the negotiations, even without signing a contract .
Basically, surpassing the letter of the rule, the formula of “union signatory,” the Court added that of “union that participates actively in the negotiations.” That is the reason why the judgment is considered additive.
The Court, in essence, believes that the exclusivity of the requirement to sign the collective agreement is a limit to freedom of association.
– Article 39 freedom of association, collective bargaining and union democracy erga omnes.
Article. 19, according to the Court, you can save, if you extend the meaning of “union signatory” of a collective agreement to encompass that of union, while still having a recognized representative, has therefore actively participated in the negotiations, even without signing a contract .
Basically, surpassing the letter of the rule, the formula of “union signatory,” the Court added that of “union that participates actively in the negotiations.” That is the reason why the judgment is considered additive.
The Court, in essence, believes that the exclusivity of the requirement to sign the collective agreement is a limit to freedom of association.
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