The implementing legislative decree of the Jobs Act on the overhaul of contract types is ready for publication in the Official Gazette. Article 3 of the decree will significantly change provisions governing job duties and so called jus variandi of the employer, the day after its publication in the “Gazette”: the decree calls for the substitution of article 2103 of the Italian Civil Code.The decree abandons the concept of equivalent duties, confirming that the worker must be assigned to duties at least “linked to the same level of legal employment category of the last duties actually performed”. With this formulation the legislator, through an implicit and direct referral to collective bargaining, thus aims at reducing the amount of employer discretion in the event of a change in duties, introducing objective indices to use as a reference in exercising jus variandi. Moreover, the decree governs cases where demotion, to date expressly forbidden by the law, is legitimate. The new provisions state that the employer, if there are changes in the company structure that affect the worker’s job, can unilaterally assign the worker to job duties belonging to a lower employment level, compared to his current one. In this case, the worker assigned to lower job duties, maintains his current employment level and salary, with the exception of remuneration elements connected to particular procedures for performing his previous job.
The possibility is also included for national/company collective bargaining to include other cases where unilateral assignment to lower job duties is allowed. In any case, assignment to new job duties must be notified in writing or it is invalid. Therefore, with the new provisions, the employer is allowed the possibility of changing in pejus the job duties assigned to the worker, as long as the new duties are at least linked to those belonging to just one employment level lower compared to the one before the demotion.
The decree also states that a change in duties be accompanied – where necessary – with fulfilment of the obligation to train the worker in question, but that failure to do so may not determine the invalidity of the act of assignment to new duties. In addition, the decree referring to consolidated legal orientation, also introduces the possibility of assigning the worker to lower duties with simultaneous reduction in salary, legal category and employment level, as long as the worker gives his consent.
However, this possibility is exclusively lawful in the interest of the worker to keep his job, acquire a different profession or improve the quality of his life and as long as the worker’s consent is backed by a written agreement in one of the venues pursuant to article 2113, paragraph 4 of the Italian Civil Code. Brief mention must also be made of the promotion of workers assigned to higher duties (article 3, paragraph 7 of the decree).
The new provisions state the permanent acquisition of the higher duties and relative salary occur after six continuous months of assignment (instead of three, as stated in the previous formulation of article 2103 of the Civil Code) or after a period established by collective bargaining has elapsed, but is excluded where it occurs to replace another worker “in service”.
The principle whereby a worker cannot be transferred from one production unit to another unless there are proven technical, organisational and production reasons, remains confirmed. Lastly, the sanction of invalidity remains for agreements stipulated in violation of the provisions contained in article 2103.
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