18. Obligativitatea şi opozabilitatea hotărârii judecătoreşti prin care se constată nulitatea unei clauze din contractul colectiv de muncă într un litigiu în care nu figurează ca părţi toate entităţile semnatare
18. The binding and enforceable nature of a court judgment by which the nullity of a clause in the collective employment agreement is established in litigation where not all the signatory entities are parties

Summary/Abstract: Res judicata does not entitle a party, in its own case, to rely on any court judgment delivered in other proceedings in which it did not appear as a party but whose outcome could be favourable to it. Although it may appear unfair for certain clauses of a collective employment agreement to be considered null and void for some employees but valid for others, nullity cannot be held in the absence of judicial proceedings involving all the contracting parties. By definition, invoking nullity by way of exception involves putting forward a defence intended to defeat a claim. However, the claimant trade union invokes nullity by way of exception precisely as the basis of the action, in that it seeks thereby to set aside the application of a clause in the unit level collective employment agreement, correlatively with the application of a statutory provision in the Labour Code concerning overtime. In practice, under the guise of this alleged exception, the claimant trade union resorts to a procedural step whose legal configuration corresponds exactly to the situation in which nullity is invoked by way of action, the only difference being that no specific head of claim has been formulated actually seeking a declaration of nullity. The nullity of the clause in the collective employment agreement, invoked by way of exception, cannot itself constitute the very basis of the claims brought before the court, the claimant’s approach amounting to a genuine reversal of the mechanism for invoking nullity by way of exception.

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