Fiat, an Unconvincing Decision
Valerio De Stefano, researcher at Bocconi University, in a recent article published in the Italian labour law review ADL - Argomenti di Diritto del Lavoro, no. 1, 2012, comments on the ruling issued by the Tribunal of Turin on July 16th, 2011 in a lawsuit brought by the trade union FIOM-CGIL, highlighting an array of inconsistencies in the arguments put forward by the Judge to support the decision.
The dispute at issue broke out after the incorporation of the new Fabbrica Italia Pomigliano S.p.A. by Fiat: the newco stepped in the management of the "Giambattista Vico" industrial plant in Pomigliano d'Arco, in place of Fiat Automobiles Group S.p.A., hiring the workers previously employed by the latter. The newco, Fabbrica Italia Pomigliano, was not party to Confindustria and entered into "its own" collective agreement with trade unions. Such move, so, appeared to be aimed at allowing Fiat to disengage itself from the applicable national collective agreement.
The trade union FIOM-CGIL, however, refused to subscribe the collective agreement with Fabbrica Italia Pomigliano, and, on the contrary, complained about the alleged anti-union conduct by Fiat, bringing a lawsuit before the Tribunal of Turin, by which it asked for the declaration of nullity and voidance of the collective agreement entered into by the other trade unions, for breach of article 2112 of the Italian Civil Code (i.e. of the provision under which, when an enterprise is transferred, the workers transferred keep the rights which they were previously entitled to, including the application of the previous national collective agreement).
De Stefano, in his article, highlights that many circumstances hinted that FIOM's initiative was going beyond the Pomigliano case. Firstly, the national FIOM initiated the legal action, instead of the corresponding "local organisms" which are the sole expressly enabled by article 28 of the Workers' Statute (Statuto dei Lavoratori) to bring actions against anti-union conducts. Furthermore, the lawsuit was commenced before the Tribunal of Turin – the Tribunal of the place where Fiat is headquartered – rather than before the Tribunal of Nola, which was the competent court with reference to Pomigliano, where the relevant industrial plant is located.
Therefore, there were all the conditions for the decision to be rendered by the Tribunal of Turin to become a decisive step, not only concerning the case of Pomigliano workers, but also as regards the entire system of trade unions relationships.
The ruling, indeed, touches some of the fundamental issues in trade union law. On one side, it holds – on the basis of many scholarly references to renowned philosophers (as Kelsen, Erlich, Bobbio) – that the collective agreement entered into by Fabbrica Italia and the other trade unions binds also the workers member of FIOM, even if the latter did not agree with it. On the other side, it affirms that FIOM is entitled to set up its own union representative at shop level (i.e. in the Pomigliano plant), although this right is expressly attributed by article 19 of the Workers' Statute only to those trade unions who are parties to the collective agreement applied in the relevant shop.
De Stefano criticizes the reasoning put forward by the Judge, analyzing the arguments indicated in support of the key points of the decision and pointing out, among other things, many inconsistencies in the references to case law and scholars' opinions made by the Judge. De Stefano, in this way, finds that the crucial points of the ruling at stake – e.g. the issue of national FIOM's capacity to bring the legal action and the topic of the efficacy of collective agreements to non-contracting parties – even considering that they are widely debated matters, were treated in a self-contradictory and unconvincing manner.