Fortunato Lo Papa, General Secretary of Fisascat Cisl Calabria
The lawyer’s argument was accepted. Gaetano Mancuso of the disputes office of the UST CISL MAGNA GRECIA.
June 19, 2024 4:43 pm
The CISL Magna Grecia makes a great statement for the court in the courtroom recognition of the right to employment stability of workers who operate in the service sector subject to public procurement.
These are employees who, during company changes in the management of the service, live in conditions of great uncertainty and due to the numerous decisions which have – in fact – transformed the right to the application of social clauses into a mere expectation.
In the name of freedom of company organisation, we have gone so far as to recognize that the successful companies have the right to decide whether to hire the staff employed by the terminating company and under what conditions.
In this certainly not favorable context, the CISL disputes office, coordinated by Fortunato Lo Papa, managed to make inroads using the leverage of the binding nature of the CCNL due to the clear provision contained in the art. 11 Legislative Decree 36/2023 pursuant to which “the CCNL in force for the sector and for the area in which the work is carried out and the one whose scope of application is connected with the activity covered by the contract must be applied to the staff employed in the services covered by the public contract”
The thesis supported byLawyer Gaetano Mancuso and accepted by the Court of Catanzaro is substantially based on solid arguments: the collective agreement that an entrepreneur has signed certainly represents an aspect, certainly not secondary, of his business organization, given that it contains the conditions under which he has chosen to employ the personnel employed by him, and incidentally, to bear the related costs; in this perspective, “the social clause contained in the CCNL signed by the competitor of a public tender, even containing a non-elastic constraint of staff absorption, is an expression of the organizational faculties of the entrepreneur, thus overcoming the balancing profiles with the economic freedoms referred to in the art. 41 Constitution.
Thanks to the tenacity of the CISL Disputes Office, i workers at the Juvenile Justice center they obtained, as a matter of urgency, the right to remain in service until the date of effective expiry of the procurement contract as well as for the time of any future extensions of the same procurement contract. And i employees at companies operating on behalf of the Municipality of Badolato, the one to be hired by the company which – as a result of a direct assignment which, from the initial 15 days, is destined to continue until 31 August 2024 – currently manages the waste collection service.
To these workers, with an order dated 16 June, the Court of Catanzaro recognized the right to be “considered as employees of the same company from the aforementioned date for the purposes of the social clause provided for by the collective bargaining agreement and the related communication obligations placed on the outgoing company to allow companies that intend to participate in the tender (for the awarding of the public contract) the correct evaluation of the necessary economic costs and, therefore, the formulation of the offer deemed most suitable”.
Great satisfaction was expressed by the secretary of the UST CISL Magna Grecia, Daniele Gualtieri, for the effective action to protect its members.
