ITA 
Published on Sole24Ore - Nt Lavoro - on 08/09/2023
The settlement signed before the Prefect does not fall under the cases referred to in Art. 2113, last paragraph, of the Civil Code, including that referred to in Article 412-ter of the Code of Civil Procedure. This is because the lack of an effective Union Association assistance.
Thus, the Court of Cassation, with its judgment no. 25796/2023.
In the present case, the employee appealed for the reimbursement of the salary credits to which he waived with a settlement signed before the Prefect.
The Court of Appeal, as the Court of First instance, rejected the employer’s opposition to the writ of injuction obtained by the employee. The Court noted that the settlement does not fall under the cases referred to in Art. 2113, last paragraph, of the Civil Code, being irrelevant that such settlement had been signed at a Union headquarter and in accordance with the terms of the NCBA pursuant to Article 412-ter of the Code of Civil Procedure.
The Company appealed in Cassation.
The Supreme Court ruled against the Company
Recalling his own orientation, the Court of Cassation highlighted that the effective Union assistance assumes importance for the purposes of the settlement validity.
According to the Court, the non-appealability of waives and settlements – having for object the employee’s rights disposed by mandatory provisions of law or CBAs, contained in settlements agreements – is conditioned on the effectiveness of the assistance provided by the Union representatives. Such assistance must be able to put the employee in a position to know “what right is being waived and to what extent”.
In case of settlement, the validity is conditionate on the circumstance that the deed of settlmenet discloses the disputed question that is subject of the dispute and the mutual concessions object of the settlement, pursuant to Article 1965 of the Civil Code.
In the present case, it wasn’t excluded the possibility of signing a settlement before the Prefect, but the Tribunal excluded the traceability of the case to the hypothesis of Article 412-ter of the Code of Civil Procedure, not being, in any case, judicial conciliation or before the Conciliation Commission of in arbitration.
Consequently, for the Court, the untraceability of the settlement to one of the cases provided for by the last paragraph of the Article 2113 Civ. Cod., have to be considered as an evaluation of the lack of Union effective assistance. This can also be deduced from the non-strictly union location in which the agreements had been reached and the failure to provide for collective bargaining arrangements to which such an evaluation could be compared.