While the political debate and trade union controversy rages on the jobs act with the overcoming of art. 18, at least for economic redundancies, our legislator has seen fit to extend the restrictions of the trade union procedure on collective redundancies also to the only category of permanent workers, that of managers, capable of managing the employment relationship individually , without particular trade union or legal guarantees in defense of one's rights.
The Law of 10 October 30, n. 2014, which will enter into force on November 161th, containing "Provisions for the fulfillment of the obligations deriving from Italy's membership of the European Union - European Law 25-bis", which provides - among other things - for changes to the Law 2013 July 23, n.1991 regarding the collective dismissal of executives.
It is true that, with a sentence of 13 February 2014, the European Court of Justice condemned Italy for not having correctly implemented the European Directive on collective redundancies in the part in which it excluded the category of executives.
However, our legislator has gone ultra petitum, operating, in quantifying the redundancies to be fired, the full equivalence of managers to other categories of workers, an equivalence that in any case the European Law has not made between managers and other workers in collective dismissal procedures .
Basically, while up to now the redundancies of managerial staff have generally been managed with "one to one" relationships between the company and the interested parties, without constraints of organizational and temporal flexibility (certain managerial operations, as also recent cases show, the faster they are , the better for everyone), the new law will require trade union intermediation and compliance with a deadline of over two and a half months before identifying the personnel to be fired by name.
A possible foreign investor, attracted to Italy by the advertised flexibility of the labor market, will find himself forced, should he wish to proceed with a rapid change in the management of the acquired company, to involve the union in a prior consultation procedure lasting 75 days , discussing the reasons for resorting to collective dismissal and even the criteria for choosing the executives to be fired, which, if an agreement is not found with the union, will be the residual ones of the law, in a weighted competition between them: family responsibilities, company seniority and technical-organizational and production reasons (sic!).
The most disruptive novelty is represented by the observance of the legal discipline on collective redundancies even when, among the possible five redundancies (within 120 days) that the company intends to carry out, there are workers belonging to the category of executives: it will be sufficient in fact that there is even one manager in the number of at least five dismissals among managers, employees or workers, for the application of a procedure, established by a law of almost 25 years ago, with the participation of another subject, the trade union of executives.
The legislator has tried to safeguard the autonomy of the collective dismissal procedure for managers by keeping it separate from that of other workers, in the sense that, although the separate initial communications to all the unions are contextual, the procedure relating to managers can then take time ( but also outcomes) different from that of the other categories, without prejudice to compliance with the maximum term of 75 days established by law.
Therefore, in the future, it could very well happen that one procedure ends with the definition of an agreement, while the other ends without an agreement, with the consequent application of the legal criteria to the dismissals to be notified, or with an agreement containing various criteria of choice.
To avoid this type of criticality, and for the mere trade union opportunity, the tendency will probably be to complete the two procedures "in parallel" or, at least, to defer the notification of dismissals so that it takes place at the same time, for both managers and for other workers.
Also in terms of the consequences of dismissal, the law introduces significant innovations, harmonizing the legislation with that introduced by the Fornero law.
As regards the dismissal challenge, the extrajudicial one must take place within 60 days of receipt of the dismissal letter and the filing of the judicial appeal within the following 180 days.
As regards the defects of the dismissal, the reinstatement of the manager pursuant to art. 18 in the event of dismissal notified in the absence of written form (it is the second reinstatement envisaged for executives after that of discriminatory dismissal), while for the hypotheses of violation of the procedure or of the selection criteria, an indemnity is established in an amount between twelve and twenty-four months' salary, with regard to the nature and seriousness of the violation and without prejudice to the different provisions on the extent of the indemnity contained in the contracts and collective agreements applied to the employment relationship.
Basically, the legislator, hiding behind a European law, took the opportunity to intervene on a category of workers whose employment relationship has, until now, been regulated for the most part by collective and individual autonomy, as if to underline the need to give greater protection to that part of the management, which a certain jurisprudence defines as "minor managers" to distinguish them from "top" managers.
Moreover, in this way, by equating the protections of the manager to the neighboring categories, such as those of managers or professionals, there is the risk of undermining the basic characteristic of the manager himself, namely the high degree of trust which distinguishes his employment relationship.
