Union consultation goes digital amid renewed debate over traditional principles of union recognition

Elena Ryolo
Cappelli Riolo Calderaro Crisostomo Del Din & Partners, Milan
elena.ryolo@crccdlex.com

Mohammad Qasim Shamal
Cappelli Riolo Calderaro Crisostomo Del Din & Partners, Milan
mohammad.shamal@crccdlex.com

Digitalisation of union consultation

The Italian Supreme Court has recently dealt with the evolution of social dialogue, assessing whether union consultation obligations can be fulfilled through digital communication tools such as WhatsApp and email. Rather than treating digitalisation as a rupture, in a context where no formal constraints are imposed by law, the courts have adopted a more calibrated approach. Procedural forms may evolve, provided that the constitutional and statutory functions of representation, participation and collective dialogue remain intact.

Specifically, two Court of Cassation ordinances of 14 January 2026 addressed whether consultation carried out through digital means, instead of formal meetings, can satisfy statutory requirements.

In Ordinance No 789/2026,^[1] the Court of Cassation examined the consultation which had taken place during the early stages of the Covid-19 pandemic through instant WhatsApp messaging exchanges rather than formal meetings as envisaged by the applicable collective agreement. Information flowed back and forth digitally: management explained proposed measures, unions raised concerns and suggested modifications, decisions incorporated union input. Later, the union sued the company for alleged anti-union conduct, arguing that WhatsApp messages could not substitute for real consultation.

The Court rejected a purely formal approach. It reaffirmed that anti-union conduct must be assessed considering its objective impact on protected collective interests. The relevant question is whether the union’s rights to information and participation were effectively impaired. In this case, given the extraordinary circumstances, consultation had genuinely occurred. Information was exchanged, and the union’s positions were communicated. The union’s participation was not sidelined or neutralised. The digital medium, in itself, did not constitute anti-union behaviour.

On the same day, in Ordinance No 787/2026^[2] the Court reached a similar conclusion in a case involving modifications to police shift schedules following email exchanges instead of an in-person meeting. Again, the Court focused on substance rather than form, finding that the unions had been informed, had expressed their views and had engaged in dialogue before decisions were finalised.

Both rulings emphasise something crucial: digital tools work when they ensure meaningful information sharing and real participation. But if an employer uses digital channels to compress union dialogue, avoid genuine input, or short-circuit the consultation process, that still violates union rights. The principle is substance over form. What matters is whether consultation’s protective functions were actually served, not whether it followed a prescribed ritual.

Union recognition in the workplace

While certain decisions are facilitating a shift towards a more modern approach of managing industrial relations, others have reverted to longstanding and widely debated principles concerning trade union recognition and representation in the workplace.

The focus is specifically on Article 19 of the Workers’ Statute, a legislation which dates to 1970 and governs the establishment of Work Councils (RSAs) within a company or production unit. RSAs are in fact the workplace-level employees’ representative bodies entitled to union statutory rights, such as access to workplace facilities, dedicated communication spaces, paid permits, the right to be consulted on certain issues and major decisions and – last but not least - the body which negotiates collective bargaining at the workplace.

Article 19 addresses the core of trade union law, and namely who is entitled to establish union representation in the workplace. In its original formulation, it rested on the principle of ‘alleged representation’: RSAs could be established by trade unions belonging to the most representative confederations at a national level.

Following legislative amendments in 1995 (and a subsequent interpretation by the Constitutional Court in 2013), the approach shifted from ‘alleged’ to ‘effective representation’. Under this framework, an RSA could be established only by unions that participated in, or were otherwise involved in, company-level collective bargaining – in other words, unions that had signed or at least taken part in negotiating the collective agreements applicable at the company. As a result, a union with substantial national support could be excluded from workplace representation solely because it had not been involved in bargaining with that employer.

Constitutional Court Decision No 156 of 8 October 2025 revisited this approach.^[3] The Court held that conditioning RSA rights exclusively on participation in bargaining is incompatible with constitutional guarantees of trade union freedom and pluralism, as it unfairly excludes unions that –  although ‘comparatively more representative at the national level’ – are prevented from exercising their rights and prerogatives at company level.

Accordingly, the Court shifted the reference point again: unions that can demonstrate objective indicators of worker support should be entitled to establish RSAs regardless of whether they participated in company-level negotiations.

Although the Court acknowledged that legislative reform would be necessary, it made clear that Article 19 must be interpreted in line with these principles until Parliament acts. This means some uncertainty ahead, but the principle is clear: union recognition must rest on objective measures of worker support. If a union demonstrates significant national presence through membership numbers, bargaining participation across industries, or other verifiable indicators it will always be entitled to workplace representation.^[4]

Conclusion

Italian courts are interestingly examining how industrial relations are evolving in a digitalisation era and they are charting a flexible course. Procedural flexibility is possible. Digital consultation, email communication and intranet-based bulletin boards are not inherently problematic. But flexibility cannot mean marginalisation. The touchstone remains whether union rights are effectively exercised, not just whether boxes are ticked.

For employers, this message presents both a warning and an opportunity. They may adapt consultation methods to modern communication tools. They may use digital channels for union interactions. But they cannot use procedural innovation as cover for avoiding genuine union participation. Courts will look past the form to assess whether substantive rights were respected.

While in consultation and communication courts have embraced technological adaptation, the Constitutional Court has recently shifted back to a position that risks greater bureaucratisation, with many more unions now eligible for representation in RSAs, and the introduction of additional layers of formalism.

Notes