It goes without saying that if Italian law is today (or so it is said) in favor of the worker, it is true that once the law was made, the deception was found…
There are many possible paths to take for mass layoffs, mostly one followed: the transfer of employment relationships from one company to another, usually a service company, which serves as a more or less capacious container for the unfortunates.
The transfer takes place formally through a transfer of the company branch which, pursuant to current legislation (art. 2112 of the civil code) also involves, among other things, the transfer of all employment relationships.
Article 2112 of the civil code means by company transfer "any operation which, following a contractual transfer or merger, involves the change in the ownership of an organized economic activity, with or without profit, pre-existing to the transfer and which retains its identity in the transfer regardless of the type of negotiation or the provision on the basis of which the transfer is implemented, including usufruct or company lease" and by company branch the transfer of part of the company "understood as functionally autonomous articulation of an organized economic activity, identified as such by the transferor and the transferee at the time of its transfer". Article 2112 of the Civil Code further establishes that, in the event of a company transfer, the employment relationship continues with the transferee (the acquiring company) and the worker retains all the rights deriving therefrom.
That is, once the transfer of the company has taken place, the employment relationships existing before the transfer continue with the new owner without the need for the consent of the workers, with the effect that each worker can assert the rights accrued against the new owner previously and exercisable against the assignor (Civil Cassation, labor section, 07 December 2006, n. 26215).
Indeed, the article establishes that both companies (assignor and assignee) are jointly and severally liable for all the credits that the worker had at the time of the transfer.
However, the law allows the worker to release the transferor from the obligations deriving from the employment relationship through the procedures envisaged in the event of an agreement on labor matters (and therefore with the intervention of the unions or the employment office).
This, which appears to be an exception to the rule, is in fact the rule.
In fact, it usually happens (and has happened) that the top management find an agreement with the unions (which in the end represent not only the outgoing workers but everyone) and so the workers find themselves, for their part, having to free the transferring company ( which is generally the most solvent) against an apparently certain job and in a less solid company.
Furthermore, if it is true that the transferee is required to apply the economic and regulatory treatments envisaged by the collective agreements in force at the date of the transfer (unless they are replaced by other collective agreements applicable to the transferee's company) it is also true that the same is not obliged to continue the exercise of the business unit acquired, with the paradoxical consequence that
