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ON THE CONCEPT OF ESTABLISHMENT RELATING TO COLLECTIVE REDUNDANCIES

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It is very important for the Italian legal system, the judgment on the issue of geographical and quantitative requirements with regard to collective redundancies of the Court of Justice of the European Union (Case C-80/14 Union of Shop, Distributive and Allied Workers ( Usdaw) & B. Wilson / WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd, & Secretary of State for Business, Innovation and Skills).
Specifically, the company WW Realisation and Ethel Austin were retail businesses, operating under the brands Woolworths and Ethel Austin.
Become insolvent, they have been subject to receivership, resulting in redundancy of thousands of employees across the UK.
Ms Wilson, one of the employees laid off, and the Usdaw, trade union organization which has over 430,000 members in the UK, have acted against these two companies, seeking an order employers to pay severance to employees protection redundant, since it was not followed the procedure for prior consultation to the adoption of social plans provision in British law.
During the first trial, a number of employees laid off was granted indemnity protection.
By contrast, about 4,500 former employees have instead got this benefit on the grounds that they had worked in establishments with fewer than 20 employees and that each plant had to be considered in its own right.
On appeal, however, the Court of Appeal asked the Court of Justice whether the expression at least in Article 20. 1, paragraph 1, first paragraph, letter a), ii) of Directive 98/59 of the Council of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies refers to the number of redundancies in 'all the establishments of the employer where layoffs occur during a period of 90 days, or if it only refers to the number of redundancies in each individual plant. The Court questioned, on the specific point, before coming to the conclusion of the legal matter, however, has two considerations.
With the first, first it held that the concept of establishment, which is not specified in the Directive itself, is a concept of European Union law and not be defined by reference to the laws of the United States and therefore where an undertaking encompassed more entities, is the extent to which workers made redundant are assigned to carry out their duties to constitute the establishment.
With the second, the Court observes that the interpretation that you should take into account the total number of redundancies in any establishment of an enterprise, while it would increase the number of workers who could benefit from the protection of the Directive, on the other hand, however, such an interpretation would be contrary to the other objectives of the directive, namely to ensure protection of workers' rights similar in the various Member States and to harmonize the costs which such protective rules entail for companies Union.
Without these two considerations, the Court finds, therefore, that the interpretation of at least 20, requires that they be taken into account redundancies in each establishment taken separately.
At this point, there seems to be all the conditions for the legal framework regarding collective redundancies, dumb even in Italy, given that according to the provision of the law, collective redundancies is understood that relative to firms with more than 15 employees who plan to at least five layoffs - numerical requirement - over one hundred and twenty days, in each production unit or in several production units within the territory of a single province (co.1 art.24 L.223 / 91).
E 'of this new address, that the Italian law must take into account, no longer able to consider as already done in the past that the reduction of staff must, in principle, invest the entire business complex, and may be limited to specific business units only if they are characterized by autonomy and specificity of professionalism used, compared to other non-perishable.
(Cass. 06/14/2007 n. 13876, Pres. Senese East. Picone, in Riv. It. Dir. Lav. 2008. Or as always done by the Supreme Court of 31/10/2013 n. 24575, Pres. Maisano Rel. Garri, in Lav. swore in. 2014, 182, establishing that as part of a collective dismissal procedure, the identification of workers to oust should normally be accomplished with regard to the whole complex of the enterprise.
Finally, it can not be recalled, as the European Commission has already referred Italy to the European Court of Justice, for failing to take adequate measures in order to implement EU legislation concerning collective redundancies with particular reference to the fact that Italian legislation, as applied by the courts, currently excludes executives from the scope of the mobility procedure, depriving these workers of the protection afforded by this procedure.
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