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15/02/2018

Questioni introduttive in tema di licenziamento collettivo nel c.d. Jobs Act

WP C.S.D.L.E. “Massimo D’Antona”.IT – 353/2018



Di prossima pubblicazione sulla rivista Variazioni su Temi di Diritto del Lavoro, 2018, n. 1.

This paper takes a position on some of the issues being discussed on collective redundancy.

It is held that the legislative decree has not gone beyond the limits set by delegated legislation.

By extending the measures contained in legislative decree no. 23/2015 to workers recruited prior to 7 March 2015 simply because their employer – by increasing his payroll – exceeded the threshold as per article 18, subsections 8 and 9, an irreversible aporia has been created. Emphasis is also given to the irrationality (with general reference to the differential treatment of existing as against newly-hired employees) of having two differential forms of regulatory treatment operate side by side instead of phasing in the new provisions over time, to produce a more harmonious normative environment. It is especially deplored that the very significant differences introduced in the statutory treatment affecting existing employees and newly hired employees make a reasonable comparison between workers impossible, thereby falsifying criteria of choice.

Some critical aspects are highlighted regarding the failure to include managers pursuant to legislative decree no. 23/2015. Some important implications of the recent case law of the European Court of Justice are also dwelt upon, whereby – in reference to directive 98/59/EU – “terminations of the labour contract are to be assimilated to redundancy” with reference to substantial changes in the essential elements of the employment contract brought about not for reasons regarding the person of the worker but unilaterally introduced by the employer to the detriment of the employee, whose refusal to accept them gives grounds for termination of the employment contract. An interpretation is given in line with directive 98/59/EU of the provisions applicable to the collective redundancy of newly hired employees, and of the possible stipulation of trade union agreements having a “sanative” efficacy. In conclusion, it is asked if, in the event of failure to correctly implement trade-union procedures, a labour-tribunal judge could order to the reinstatement of a worker pursuant to article 28 of the Workers’ Statute.

author(s): de Mozzi, Barbara
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