Law 157/2019 converting, with amendments, Decree Law 124/2019 was published in Official Journal 301 dated 24 December 2019. “Tax Decree“). Therefore, as of 1 January 2020, companies that entrust one or more works or one or more services for a total annual amount of more than €200.00 to a company – through “a contract of tender, subcontracting, entrusting to consortium members or negotiating relationships, however denominated, characterised by the prevalent use of labour at the headquarters of the client with the use of capital goods owned by the latter or traceable to it in any form” – must request the same copy of the payment proxies relating to the payment of withholding tax for employees directly employed in the execution of the work/service. The payment of withholding tax is made, with separate powers of attorney for each client, without the possibility of remuneration. In order to allow the client to acknowledge the total amount of the sums paid, the companies, within 5 working days after the due date of payment of the withholding tax, are required to send it: (a) the payment proxies and (b) a list of the employees directly employed in the execution of the work/service in the previous month, identified by means of a Tax Code, with details of the hours worked by each employee involved, the amount of remuneration paid to the same and details of withholding taxes made in the previous month, with a separate indication of those relating to the service entrusted by the client. In the event of non-transfer by the undertakings or if it is established that withholding tax has not been paid or is insufficient, the client shall suspend, for as long as the default persists, the payment of the fees accrued. This is up to 20% of the total value of the work/service or for an amount equal to the withholding tax not paid but resulting from the documentation submitted. The client is also required to notify the relevant Italian Revenue Agency within 90 days. If the client fails to comply with the obligations in question, it shall incur a penalty equal to the penalty imposed upon the contractor/subcontractor. These obligations do not apply if the companies have informed the client, attaching the relevant certification, of the existence, on the last day of the month preceding the expiry date, of the following requirements: (i) that they have been in business for at least 3 years, in compliance with their declaration obligations and that they have made, during the tax periods to which the tax returns submitted in the last three years refer, total payments recorded in the tax account for an amount of no less than 10% of the amount of revenues and income or remuneration resulting from such returns; (ii) that they have no entries or executive assessments or debit notices entrusted to collection agents relating to income tax, IRAP (Corporate Income Tax), withholding tax and social security contributions for amounts in excess of €50,000, for which the payment deadlines have expired and payments are still due or no suspension measures are in place.
La Cour d’appel de Milan, Division du travail, par jugement n°780 du 5 octobre 2015, confirmant la décision du tribunal de première instance, a déclaré légitime le licenciement pour dépassement du congé maladie d’un travailleur survenu plus d’un an après l’expiration du congé maladie et après une période de maladie ininterrompue. La Cour d’appel, en rejetant l’exception d’intempestivité de la résiliation avancée par le travailleur, a rappelé l’orientation de la jurisprudence selon laquelle le comportement de l’employeur qui attend le retour au travail de l’employé malade pour être en mesure d’évaluer sa réutilisation dans l’organisation de l’entreprise est légitime, sans que cette attente ne constitue une renonciation au droit de résiliation.
Security Decree, in force since December 2018, has amended the Legislative Decree 286/98 (“Immigration Act”) concerning corporate immigration in Italy. The 2019 edition of the international comparative legal guide to corporate immigration, published by Global Legal Group in partnership with American Immigration Lawyers Association, now available for free on line, provides an analysis of 34 different jurisdiction. The Italian chapter, curated once again by De Luca & Partners, offers useful insights to manage new hires, intra- and inter-company transfers of foreign workers in light of the latest changes in immigration law.
Read the full guide here.
In order to make it easier for employers to submit applications for the release of Form A1, INPS has developed a new procedure aimed at computerizing the procedure for the issue of this certification. The portable document A1 is issued to certify the social security legislation applicable to the worker, holder of the form, in cases where the worker is employed in one or more States that apply European Community rules. Starting 1 September 2019, applications for the A1 form must be submitted electronically exclusively. For all approved applications, the A1 certification to be issued to the worker will be produced. The application, for each request accepted with the output protocol number enhanced, allows you to download in PDF format the A1 certification that will be stored in the application. The applicant, in addition to being able to view the result on the web dashboard dedicated to him, will be notified of the settlement of the application by e-mail and/or SMS respectively to the address and mobile phone number indicated in the application (if any). A copy of the A1 portable document will be sent to the applicant by PEC or e-mail. If, at the request of the foreign institution, it is necessary to acquire the portable document A1 in original format, the certification will be available for collection at the competent INPS territorial structure.
The Court of Cassation, in judgement 21357/2019, stated that a company cannot unilaterally withdraw from the collective agreement signed by the employers’ association to which it adhered before its expiry. This, even though this contract has become too expensive over time.
The facts
The Court of Appeals of Turin upheld the decision of first instance when it had rejected the opposition of the Federazione Italiana Lavoratori Chimica Tessile Energia Manifatture FILCTEM [Italian Federation Chemical Textile Energy Manufacturing Workers] – CGIL [Italian General Confederation of Workers] Provincial of Turin and the counter-claim of the employer company against the aforementioned decree, which had declared the anti-union nature of its conduct. This conduct consisted in not having informed and consulted the FILCTEM trade union about the negotiations that resulted in the agreement of 13 December 2011, involving the extension to all employees of the specific collective bargaining agreement of 29 December 2011 in its final version, concluded with FIM CISL, UILM, FISMIC, UGL and Associazione Quadri e Capi Fiat [Fiat Executives and Leaders Association].
The District Court, denying the inferred anti-unionism, confirmed the legitimacy of the stipulation of a new collective agreement with the trade unions in full or in part different (even by sector – metalworker) than those who had stipulated the previous one. In deciding in this sense, the Court of Appeals had referred to a ruling of the Supreme Court, according to which there is no obligation in the legal system for the employer to negotiate and enter into collective agreements with all the trade unions, the possibility of signing a new collective agreement with the trade unions falling within the autonomy of negotiations even different from those that had negotiated and signed the previous one.
The reason given for concluding the different contract was that in eight of the thirteen plants the CCNL for the metalworking sector had been applied even before 1 January 2012, to which was added the fact that the majority of the 27 RSU of the five plants in which the CCNL for the rubber-plastic sector was applied was not attributable to FILCTEM – CGIL, as was the majority of the 58 RSU of all the plants.
FILCETEM appealed against that decision to the Court of Cassation, entrusting the challenge to a single reason to which the company filed a counter-claim.
The decision of the Court of Cassation
The Court of Cassation, in upholding FILCETEM’s appeal, referred to a well-established orientation according to which“in the collective labour agreement the possibility of termination is the sole responsibility of the contracting parties, i.e. the trade unions and employers’ associations, which normally also regulate the consequences of termination; the individual employer, therefore, is not allowed to unilaterally withdraw from the collective agreement, not even on the grounds of its excessive burden, pursuant to Article. 1467 Italian Civil Code, resulting from its own situation of economic difficulty, except for the hypothesis of company contracts entered into by the individual employer with local trade unions of the workers” (see Cassation. 8994/2011, Cass. 3296/2002, and Cass. 15863/2002 reiteration by Cass. 25062/2013). Therefore “it is not legitimate for the employer to unilaterally terminate the applied contract even if it is accompanied by a reasonable period of notice. Only at the time of the contractual expiry will it be possible to withdraw from the contract and apply a different one on condition that the conditions set out in art. 2069 of the Italian Civil Code are met“ (cfr. Cass. 25062/2013).
The employer must be granted the right to withdraw from a collective agreement under general law concluded for an indefinite period and without predetermining the expiry date, since the contract cannot bind all the contracting parties forever. Otherwise, the cause and social function of the collective bargaining would be worthless, the discipline of which, always modelled in terms of time that are not excessively extended, must be configured on a constantly evolving socio-economic reality. It is understood that the withdrawal must be exercised in accordance with the criteria of good faith and fairness in the execution of the contract and must not be detrimental to the intangible rights of workers, arising from the previous more favourable rules and entered definitively in their assets (see Cass. 25 February 1997 no. 1694; Court of Cassation 18 October 2002 no. 14827; Court of Cassation 20 September 2005 no. 18508; Court of Cassation 20 December 2006 no. 27198; Court of Cassation 20 August 2009 no. 18548; Court of Cassation 28 October 2013, No. 24268). There is, however, no similar early termination option for collective agreements with a predetermined duration.
In view of the above, in the opinion of the Supreme Court, the application of a new national collective bargaining agreement cannot be allowed before the scheduled expiry of the one currently being applied, which the parties have undertaken to comply with.
In this context, according to the Court of Cassation, the company’s argument that a possible second-level contract may give the employer the power to withdraw early from a higher-level collective agreement cannot be accepted either.
The Court of Cassation, however, overturned the ruling and referred the case back to the Court of Turin, in a different composition, which will carry out the new examination on the basis of what it highlighted.
