THE SALE OF THE BUSINESS OF COMPANY VIEW FROM THE ISF Accomplice contraction in pharmaceutical spending and the proliferation of generic, large pharmaceutical companies have agreed to make ends meet in their own way ... teste.Da cutting a couple of years, that In fact, witnessed a substantial simplification of the files in large aziende.Inutile reps say that if the Italian law is now (or so they say) in favor of the employee, it is true that the law passed, found the 'deception ... So many possible paths to take to the mass layoffs, mostly one that followed: the sale of the relationship Working from one company to another, usually of services, which serves as a container for more or less capacious malcapitati.La formally transfer takes place through a sale of the company that, under existing legislation (art.2112 cc) involves, among other things, the sale of all reports of lavoro.L 'Article 2112 of the Civil Code intended for transfer of business "means any operation, following a legal transfer or merger, involving a change in ownership organized economic activity, with or without profit, existing transfer and transfer that preserves its identity regardless of the type of negotiation or by the measure under which the transfer is completed including the usufruct or leasing of company "and company branch transfer of the company" understood as the functional self-organized economic activity, identified as such by transferor and transferee at the time of his transfer. "Article 2112 Civil Code still provides that in case of company transfer, the employment relationship continues with the transferee (the acquirer) and the employee shall retain all rights derivano.E it is, once materialized the transfer of business, labor relations background to the transfer continue with the new owner without the consent by workers, with the result that every worker is entitled to assert against the assignee the rights previously acquired and exercised in respect of the transferor (Civil Cassation, sez. lav., 07 December 2006, n. 26215). L 'Article provides in effect that both companies (the transferor and transferee) are bound, jointly and severally, for all claims that the employee had at the time of transfer. However, the law accepts that the worker, using the procedures in case of an agreement relating to employment (ie, with assistance from the unions or the labor office) release the assignor from its obligations arising from the report of lavoro.Questa, which apparently seems an exception clause to the rule, is regola.Infatti in fact, usually happens (and it happened) that the top management to reach an agreement with the unions (which in the end are not only workers but all outgoing calls), and so workers find themselves, for their part, to free the transferor company (which is usually the most solvent) compared to a job in an apparently reliable and less solida.Inoltre, it is true that the transferee is required to apply the economic and regulatory measures provided for collective agreements the date of the transfer (unless they are replaced by other collective agreements applicable to the transferee) is also true that it is not obliged to continue business of the business acquired, with the paradoxical result that the Court did not consider it "in circumvention of the law, nor reason for illegal ... concluded the contract of transfer of a person who, for its business and in the circumstances of the case, possibly making it the cessation of production and labor relations "(Civil Cassation, sez. lav., October 16, 2006, No. 22125). Which means that the company who purchases the insurance may cease activity even a month later, without having to account to any employee. ... A little protection for the worker to that effect set out in Directive 01/23/CE 12/03/2001 n.23 (Directive Council on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses) which provides that if the employment contract or employment relationship is terminated because the transfer involves the expense of the worker a substantial change in working conditions, the termination of employment or employment relationship is regarded as having the responsibility of the employer.
This provision is however difficult to apply.
Normally, when a company is large - such as pharmaceuticals - decide to transfer a business line, remain involved many lavoratori.A this end, Article 47 L.428/90 (as amended) expressly provides that in case of transfer of an undertaking or part thereof in which they occupied a total of more than 15 workers, the company should bring certain procedures for inspection of the unions in order to protect the safety occupazionale.Ma in recent years, against a takeover of power increasingly strong trade unions, there has been protection of the workers concerned less effective el ' imposition of the intervention made by the union legislature has in fact served to increasing political power of the union, but it has proved a handicap for the individual worker, who saw their position exclusively deal with a number, without regard to their personal history, unable to plead his case against a more or less correct procedures established by legge.Non experiment is, however, falls within the definition of the transfer of the contract with the company which is built the so-called "outsourcing" of services where these do not integrate a branch or part of the company in accordance with the above: in these cases, "the story translational, in terms of labor relations , must be regarded as a tax-related contracts, which requires for its completion the worker sold "(Supreme Court Civil, sec. lav., 16 October 2006 No 22,125). This trick is usually accompanied by a co-promotion agreement between the transferor company and the company accepting contracts lavoro.La co-promotion is when the promotion (scientific information, presentation, advertising and sales) for the same drug, under the same brand, is performed simultaneously by two companies, one of which is the holder of the authorization to release commercio.In this way the company does not give the branch, but, in fact, he fired all of us who working with the placid good stessi.In of these cases, normally the Assignor shall submit to the worker a small bonus and an offer of a new job, which is stable or not, yes obtain consent to the transfer, but also a real release from work for any claims relating to the employment relationship intercorso.In Typically, the worker, just to avoid the mobility, especially in areas where unemployment is rampant, such as the South, prefer to agree to step into the new company, freeing the old company of any liability accrued and not corrisposto.Se goes well, the worker has a new job, if it goes wrong it can no longer claim against the old company.
Attorney Maria Rita reputation of the Court of Milan
