The expression \u201cuntil the new National Collective Bargaining Agreement is signed\u201d indicates the willingness of the parties to the contract to be bound by it until further negotiation and signing. The intent to express a final term is, therefore, clearly stated by the contracting parties.<\/p>\n\n\n\n
Court of Cassation, employment section, judgement no. 3672 of February 12, 2021<\/em><\/p>\n\n\n\n The case originates from the succession between two NCBAs applied by the same company. La locuzione “fino alla sottoscrizione del nuovo CCNL” indica la volont\u00e0 delle parti originariamente stipulanti a vincolarsi al contenuto del contratto fino alla nuova negoziazione e sottoscrizione. La volont\u00e0 di esprimere un termine finale \u00e8, quindi, chiaramente enunciata dalle parti contraenti. Corte di Cassazione, sezione lavoro, sentenza n. 3672 del 12 febbraio 2021 Il caso […]<\/p>","protected":false},"author":1,"featured_media":1891,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[44],"tags":[],"yoast_head":"\n
\n\nIn the case in question, one of the signatory unions to the previous NCBA and a number of workers who were members of that union took legal action to ascertain the inapplicability of the new NCBA to them, as it was not signed by that said union.
\nIn particular, the plaintiffs claimed application of the previous NCBA which expressly provided for both specific time limits (different for the regulatory and economic aspects), as well as an extension clause that established its validity until a new contract was drawn up.
\nThe judges of first and second instance rejected the plaintiffs\u2019 claims.
\nIn particular, according to the judges, the termination of the previous NCBA was legitimate, as the duration of the contract had been largely exceeded \u201cwith the consequent disappearance of any temporal constraint on the maintenance of its effects and the consequent applicability of the principle of free withdrawal provided for in contractual matters by art. 1373 of the Civil Code\u201d.
\nIn fact, according to the judges, the aforementioned extension clause had \u201cthe limited effect of establishing the extension of the NCBA, even after the expiry of the term contractually provided for, until the signing by one of the parties of any new collective agreement, not necessarily with the same parties\u201d. Therefore, \u201conce the validity of the previous NCBA 23.11.2004 had expired, it is legitimate to apply the new NCBA of 2012, a collective agreement in force at national level and to which the company had expressly adhered\u201d.
\nThe Court of Cassation, with the judgment in question, overturned the ruling of the lower court.
\nFirst of all, the Supreme Court refers to the decision of the United Section (no. 11325\/2005) according to which the provision of art. 2074 of the Civil Code \u2013 on the continuing effectiveness of the collective agreement that has expired, until a new one is in place \u2013 does not apply to collective agreements which, being a manifestation of private bargaining autonomy, are governed by the free will of the parties who alone are responsible for establishing whether the effectiveness of an agreement can survive its expiry. Consequently, the cessation of the effectiveness of collective agreements, consistently with their nature, depends on the expiry of the term established therein.
\nOn the basis of this principle and turning to the case at hand, according to the Court of Cassation \u201csince the expiry of the contract can only be the one specifically and clearly fixed by the parties, the provision of the continuing validity until the new signing has the meaning of the provision, through the clause of extension, of a term of duration, although undetermined in the \u201cwhen\u201d, since the collective agreement under common law is governed by the free will of the parties, who can thus regulate the effects of the expired contract as to the term of effectiveness provided in the first part of the same rule\u201d.
\nThus, in the case at hand the lower court has, instead, erroneously referred to principles and precedents that refer to different cases, those in which there is no term of duration or in which the parties have expressly provided for an indefinite duration of the contract.
\nSuch principles, continues the Court of Cassation, \u201ccannot regulate a hypothesis, such as the one under consideration, in which the extension clause provides for a final term related to a new negotiation, according to the general principle in the contractual obligations for which the distinguishing criterion between term and condition is to be found in the certainty and \/ or uncertainty of the occurrence of a future event that the parties have provided for the assumption of an obligation or for the fulfillment of a performance, so that there is the hypothesis of the term when such future event is certain, even if without a precise chronological location, provided that it is connected to a fact that will certainly occur (cf. Cass. no. 4124 of 1991)\u201d.\nThus, concludes the Supreme Court, \u201cthe expression \u2018until the signing of the new NCBA\u2019 indicates the willingness of the parties to be bound by the content of the existing contract until the new one is negotiated and signed. The intention to express a final term is clearly stated by the contracting parties\u201d.
\nConsequently, the Supreme Court overturned the appeal and referred the matter back to the Appeal Court of Rome, with a different composition, to assess the legitimacy of the termination of the NCBA.<\/p>","protected":false},"excerpt":{"rendered":"