Published on Sole24Ore – NT Lavoro – on 05/07/2022.
The transfer of a public executives ordered without the prior authorisation of the Association Unions to which he belongs, even in the presence of situations of environmental incompatibility capable of justifying the transfer pursuant to Article 2103 of the Civil Code, is anti-union.
Thus, the Court of Cassation with its judgment no. 20827 of 30 June 2022.
The Case originates from the transfer of an Custom and Monopoly Agency’s executive – which was member of the RSU of the Sassari Office, from which he was assigned depended – ordered due to environmental incompatibility, as he was under investigation by the Guardia di Finanza personnel with whom he was supposed to work in close contact.
The Court of Appeal, upholding the Court of First Instance’s judgment, declared the unlawfulness of the measure ordered without the prior authorisation of the Association Union to which he belonged, noting that the transfer should have been ordered in compliance with the provision of Article 22 of the Workers’ Statute, applicable to the public sector pursuant to Article 33 of Law 93/1983 and Article 18 (4) of the CCNQ of 7 August 1998.
According to the Court of Appeal, the combined provisions required the prior Association Union authorisation for the transfer to be valid, regardless of the reason put forward to justify the measure, which in no case could affect the application of the rules protecting the overriding interest in the performance of the Association Union activities.
The Agency appealed to the Court of Cassation, arguing that Association Union authorisation was not necessary where the transfer was justified by events that had nothing to do with the maintenance of Association Union relations, preserved by Article 22 of the Staff Regulations, and also contested the executive’s right of action, which, according to the Agency, was reserved to the Association Union organisation involved.
The Court of Cassation rejected the Agency’s appeal arguing that the thesis of the inapplicability of the burden of requesting prior authorisation for transfers occasioned by environmental incompatibility, all the more so if linked to criminal investigation against the employee concerned, cannot be accepted because it would represent an «unjustified narrowing of the scope of application of Article 22 cited above, in contrast with the ratio of the provision» which is aimed at avoiding prejudice to Association Union activity in the workplace where the RSU member concerned by the transfer operates.
In fact, the transfer ordered against the Association Union leader without prior authorisation is irremediably vitiated by a presumption of anti-union status, regardless of the actual existence of situations of environmental incompatibility that under Article 2103 of the Civil Code would justify the measure.
Lastly, the Court of Cassation also rejected the doubts as to the active legitimacy of the executive, recalling its own consolidated orientation on the point, according to which the same Association Union executive is legitimated to bring a direct and autonomous action to assert the illegitimacy of the transfer for failure to request Union authorisation (Court of Cassation no. 11521/1997).