The Industrial Crisis in Italy: Transfers of undertakings and the legal role of union agreements

Italy has suffered the consequences of globalization, in particular, its productive system and Welfare State models. The industrial reorganization in our country has been carried out through a series of extremely diversified instruments, and has dealt with offshoring, the use of institutions to safeguard employment levels, solidarity contracts, temporary layoff benefit, social clauses in service contracts, company relocation, including, obviously, mass dismissals ex bill n. 223/1991. Actually, as early as the seventies, a series of legal measures were already being taken to allow companies in a state of insolvency or economic difficulty to benefit from special derogations to the framework of transfer of undertaking as in art.2112 c.c., to favor marketability. Law n.428/90 in fact, suggests as part of the relocation procedure, the signing of an agreement that aims at “maintaining employment even partially”, with the unions who are signatories of collective agreement applied to the same companies, or, in the absence of these, with “leading representative trade unions”. The reasoning behind this is to be found in the possibility of derogating to the regulations of 2112 c.c: recognition of past rights , joint and several liability with the transferor, respect for collective agreements up until the deadline as already applied by the same, thus allowing the employer who buys the holding transferred, to enter into contracts of employment ex novo. This is the typical outline of legislation in times of emergency born halfway through the seventies as a consequence of the first crisis of the major industrial groups, “carried on in the name of the crisis, prolonged in the name of co-managed flexibility, without, however a real consistency and continuity: this terminology, reveals jurists’ fantasy, but is not devoid of some correspondence in the inspiring philosophy and in the regulatory framework. At present, trade unions exchange certain social safeguards provided for by our labour system with the guarantee of employment: the agreement between the parties has a “managerial-derogatory role in an imperative legal provision” transforming it in a “participatory” instrument of entrepreneurial choices”; in this regard, we cannot talk about an “obligation to contract” imposed on the social partners, but more correctly, we can single out an obligation for trade unions and companies to benefit from the derogatory framework of existing legal restrictions. This paper, a résumé of an in-depth study which will appear in the conference proceedings, will focus on the union profile of the ex art.2112 c.c. procedure, considering the mandatory character of the protection legislation seen as fundamental element of labour law, a regulatory technique which deals with the premises and the scope of the regulation and not its content nor its binding character, teleologically oriented at guaranteeing the application of the rule regardless of the parties, be they, individuals or collective organizations.