If they have been elected on the list of a union that has entered into the CCNL (National collective bargaining employment contract) or at least participated in the negotiations.
With regard to trade union representation, the recent judgment no. 26011/2018 of the Supreme Court dictates that each member of the Unitary Workplace Union Structure (RSU), where elected and subsistent in the company, can hold assemblies pursuant to art. 20 of the Workers' Statute, without the prior resolution of the jointly-held RSU being necessary.
However, it is necessary that the member of the RSU that indexes the meeting has been elected on the list of a union that, in the reference company, has the authority to represent pursuant to art. 19 of the Statute, as interpreted by the Constitutional Court n. 231 of 2013: that is, they have signed collective agreements applicable to the production unit or have at least participated in the negotiations aimed at their stipulation.
We are now facing a consolidated orientation, as repeatedly stated previously by the Supreme Court (see Cass. 7th July 2014, No. 15437, Cass. 24th April 2013, No. 10001, Cass. 27th January 2011, No. 1955, Cass. 1st February 2005, No. 1892, Cass. 24th January 2006, No. 1307). The power of initiative, related to the calling of the assembly, was interpreted in this way, as stated by the second paragraph of art. 20 of the Statute, according to which shareholders' meetings “are called, individually or jointly, by the company trade union representatives in the production unit".
It is now undisputed that the right-holders themselves may be members of the RSU, established by the Inter-Confederal Agreement of 1993. Art. 4 of this Agreement speaks of the "takeover from the managers of the RSA in the ownership of rights, permits and freedom of trade unions and protections already available to them". The prevailing stance of the Supreme Court today comes from the consideration that, before the establishment of the RSU, it was undisputed that the RSA could exercise "singly or jointly", as the law recites, the right to hold assemblies (see: Cassation 3rd July 1984, No. 3894). From this point of view, even the members of the RSU substituted for managers of the RSA can call assemblies, individually or jointly, as stated by art. 20, whereas the subsequent art. 21 of the Workers’ Statute regarding the referendum expressly states that this worker consultation tool should be called by "all company trade union representatives": always jointly, therefore, and not individually, as is the case for the meeting.
Moreover, according to this stance, attributing the right to call the meetings to the joint body would risk impeding the right itself, not only to a minority trade union, but also to a relative majority, which, having a significant component in the RSU, could not, however, reach an absolute majority to convene the assembly.
According to the Supreme Court, the thesis that only the collective RSU could hold assemblies in the company would therefore imply the introduction of a requirement that is too selective. This is not reflected in the legislation and, in fact, would nullify the right provided for by art. 20 of the Statute, at least in companies where the RSU is present. (LC)
