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PROF. CHAMBERS. PAUL FANFANI

March 25, 2005 Subject: PF / Opinion rm pro Veritate (ESL n.2646)

pro Opinion veritate

In full-time employment the power to distribute during the day time work is, in principle, reserved for the employer, it considers that its power is within the prerogatives of business and in particular the power of organization and leadership of the entrepreneur (Articles 2086 and 2094 cc) (see for example in this regard. Trib Bergamo, March 29 1991, Or. Jur. Lav. 1991, p. 855).
The only restrictions which may be justified in exercising that power business are contractual obligation of fairness in the sense that any changes to their notice must be given a reasonable notice (in this sense Pret. Pavia, Jan. 27. 1987, Riv. It. Dir Lav. 1987, II, 336).
Finally, even the recent decree. April 8 2003, n.66 implementation Community Directives 93/104 EC and 2000/34 EC concerning certain aspects of the organization of work, does not contain provisions on the location of working.
If then, in principle, we believe that the employer has ample opportunity to change the arrangement of working time in daytime working day (that according to Art. 1, 2nd co., N Leg ° 66 of 2003 provides a period of 17 hours of work, however, exclude the hours from 24.00 to 5.00), however, collective bargaining, several areas can enact rules restricting the power of business, and it is exactly the case with the Negotiable of the sector concerned , art. 89 sets that "the distribution of working hours will be agreed at the company based on the provisions of art. ... ... 14."
The term "agreed" can not mean simply removing the power to unilaterally determine the organization of work by the employer who can not take action to change arrangements previously agreed timetable without prior "agreement" with the subject Article union. 14. Subjects
union laid down by 'art. 14 are then made by the RSU "together with the signatory trade unions responsible for the".
The above is exactly the case that concerns "Unicoop" this fact, prior to the of July 2001, provided a schedule of work prepared in two shifts, that deal with the Unicoop obtained the consent of trade unions to "outsource" through subcontracted third turn "night" in the quel'occasione Unicoop pledged to maintain employment levels through possible relocation within the distribution center, in particular, nothing was observed in relation to shifts morning and afternoon which therefore remains unchanged.
In November 2004 the Unicoop summoned the RSU to formally notify its intention to focus on a single ballot morning Unicoop all employees of the existing two-shift and move the "round contract "in the afternoon (it's actually happened then that this round was then" extended "periods of work even further to fill spaces that were reserved for the night shift) ..
This business decision simply" communicated "to the RSU and not agreed (even by local trade unions), has been questioned and rejected in the assembly of departments involved.
It is evident that the decision of Unicoop to change the working hours of the morning shift workers confirmed in unity turn, is was taken in violation of Article. CCNL 89 which provides that "the distribution of working time (so even shifts, ed) will be agreed at the company ... before ..."; a set of working on two shifts, one shift in the concentration is changing the distribution of working time "that can not be taken unilaterally by the employer without prior" agreement "which in this case does not there has been.
What has been noted above is not contradicted by the findings into the collective farm where he planned on "working time: duration and dynamics" and this applies only to the identification of people "contacts "not the effect of the corresponding meeting is left to art. 89 Negotiable and that" the Agreement ", in other words, the" union comparison "company under the Agreement, to have effects on changing working time must lead to an "agreement" and not just a simple notice or consultation.
The consequences of this state of affairs appears twofold:
- in terms of labor relations, the unions county would be entitled to initiate the procedure for the suppression of anti-union conducted under Article. 28, the . No. 300 of 1970 (the unilateral act of Unicoop fact, humiliates and undermines the image of the Union and prevent the operation);
- in terms of individual employment relationships, the corporate directive translates into the illegality of its content for breach of a rule of contract; the face of such unlawful order workers could make use of the labor courts to restore the previous situation
Obviously, recourse to an employment tribunal should be preceded by conciliation under Articles. 410 et seq. CPC, at the Commission conciliation disputes work seated at the Provincial Labour of Florence.
available for any clarification, I cordially greet.

Prof. Paolo Fanfani

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