An employer who does not want to recognise a new company union representative should not limit themselves to being silent in the face of exclamations, expectations and initiatives of said representative. Their silence could be interpreted as assent to the constitution of the new RSA (Company Union Representative): with consequent recognition in favour by them of all the prerogatives foreseen by the Statute of the workers (leave, meetings, rooms, bulletin board, etc.).
As is known, an RSA can be formed by unions who have signed collective agreements (national and company) applied in the production unit (according to art. 19 of Law 300/70) and those who have at least participated, even if they haven't undersigned, in the negotiations preceding their stipulation (as established by the ruling 231/13 of the Constitutional Court).
But nothing prevents the employer from recognising an RSA even in the absence of the aforementioned jurisprudential and legal requirements. This can be an explicit recognition, but also a tacit recognition, for conclusive facts. An RSA can therefore be considered existing and validly constituted even because of the employer’s silence, or rather his failure to react to the initiatives and claims of the workers and the union that gave rise to it. But these must be acts or behaviours that are unequivocally directed to affirm the existence of an RSA. It may be an exchange of correspondence between RSA and the company without the latter confirming the valid constitution of the aforementioned (but the letter of the territorial secretariat of the union would not suffice). Or the participation of the RSA managers in negotiations with the employer (however, it would not be enough to have an informative meeting with the external managers of the union that claims to have constituted the company representation). The use of the bulletin board and / or company premises and / or trade union permits could be considered to be a conclusive behaviour. However, permission should be requested by the managers of the RSA and not by the employee as a local or national union leader, to attend meetings or assemblies of his O.S (Trade union).
In all cases in which it may be seen as conclusive behaviour that is favourable to the RSA, the employer who would, in the future, deny representative one of the prerogatives provided for by the Statute of workers would risk being accused of anti-union behaviour for having earlier implicitly acknowledged the RSA applicant (see judgment of the Court of Appeal of Milan No. 1756/17).
It is therefore necessary that, in relation to the newly established RSA, the employer should adopt a clear and unambiguous line: recognising it if he deems it necessary to do so or wants to relate to it; otherwise, explicitly contesting its legitimacy, if the constitutional requirements of the law (article 19 of law 300/70) and case law (ruling 231/13 of the Constitutional Court) previously mentioned are not recognizable.
Silence should be avoided. Because it could be mistaken for assent. (LC)
