Alberto De Luca will be the speaker at the “Flexible contracts put to the test by the Dignity Act” conference organized by Convenia in Milan on 2 October and in Rome on 9 October.
Place:
The event will take place in Milan at the NH Machiavelli Hotel, Via Lazzaretto 5, and in Rome at the Ambasciatori Palace Hotel, Via Vittorio Veneto 62.
Focus:
The event will focus in particular on the following subjects.
Staff leasing fixed-term contracts
– references to the legislation governing fixed-term contracts – protection of the profiles with special nature and references to the collective bargaining agreements – aspects concerning the computation of relevant periods in relation to the maximum duration of contracts – justifications and pertinence thereof to employment contract – implications on the corrective actions
Staff leasing fixed-term contracts
Regulations set forth for the fixed-term contracts apply also to staff leasing fixed-term contracts, except Article 21, paragraph 2 (governing the so-called “stop & go”), Article 23 (“Total number of fixed-term contracts”) and Article 24 (“Rights to take precedence”), of Legislative Decree No. 81/2015. In addition, it is also established that the number of employees hired under a staff leasing fixed-term contract shall not exceed in total 30% of the number of employees under an open-term contract working for the employer as of 1 January of the year in which said contracts have been signed. This without prejudice to other provisions established in the collective bargaining agreements applied by the employer and without prejudice to the quota limit pursuant to article 23 of Legislative Decree No. 81/2015. The so-called fraudulent staff-leasing repealed by Legislative Decree No. 81/2015 is reintroduced and sanctioned with a monetary fine to be paid by the staff leasing company and the employer in the amount of EUR 20 per each employee involved and per each day of leasing.
Speech
Alberto De Luca participated as one of the speakers at the conference to further explore the changes introduced by the Dignity Decree:
“If according to the Dignity Decree the fixed term contract without specified reason (including through staff leasing contracts) can last no more than 12 months, it is also true that according to the employment trend in the Country recorded in 2017, and thus according to the previous rules that allowed greater flexibility, this was the term for the majority of fixed-term contracts entered into by businesses”.
“With the Dignity Decree, the collective bargaining agreement takes on an even more important role, to allow businesses not only to expand the use (at least in terms of quantity) of fixed-term contracts, but also to adopt coding and verifications of the reasons actually allowed”.
“With the restrictions on fixed-term contract hirings, the individuals with less professional skills will be the ones that potentially will experience greater job insecurity. In fact, it is possible that, upon termination of the first 12 -months contract without specified reason, the employer may decide to hire another individual in order to continue to benefit from the opportunity not to have to provide a reason, thus increasing job insecurity instead of decreasing it”.
Alberto De Luca and Valentino Biasi will be speakers to the next HR Breakfast organized by De Luca & Partners on 13 September.
The Dignity Degree has been converted into law: all the news affecting businesses The Senate, in yesterday’s session, has approved, converting it into law, Law Decree No. 87 regarding “Urgent Provisions for the dignity of employees and companies” (the so-called “Dignity Decree”) as it was approved by the Chamber of Deputies.
Soon it will be published on the Official Gazette.
Below we report the major changes that the decree will bring in labour-law.
Fixed-term contracts
The new rules apply to fixed-term contracts entered into after 14 July 2018 as well as to the extensions and renewals occurring after 31 October 2018.
Staff leasing fixed-term contracts
Regulations set forth for the fixed-term contracts apply also to staff leasing fixed-term contracts, except article 21, paragraph 2 (governing the so-called “stop & go”), 23 (“Total number of fixed-term contracts”) and 24 (“Rights to take precedence”), of Legislative Decree No. 81/2015. In addition, it is also established that the number of employees hired under a staff leasing fixed-term contract shall not exceed in total 30% of the number of employees under an open-term contract working for the employer as of 1 January of the year in which said contracts have been signed. This without prejudice to other provisions established in the collective bargaining agreements applied by the employer and without prejudice to the quota limit pursuant to article 23 of Legislative Decree No. 81/2015. The so-called fraudulent staff-leasing repealed by Legislative Decree No. 81/2015 is reintroduced and sanctioned with a monetary fine to be paid by the staff leasing company and the employer in the amount of EUR 20 per each employee involved and per each day of leasing.
Increasing Protections Employment Contract
The criteria for the indemnification protection established in the case of unlawful dismissal pursuant to article art. 3, paragraph 1, of the Legislative Decree 23/2015 have changed from a minimum of 6 to a maximum of 36 monthly salaries. In addition, the conciliatory proposal established on art. 6 of the Legislative Decree 23/2015 has been increased from a minimum of 3 to a maximum of 27 monthly salaries.
Occasional Employment
Hotels and tourist structures operating in the tourism sector may make use of occasional employment contracts if they do not employ more than 8 open-term employees and the total number of hours foreseen in terms of time does not exceed 10 days.
Bonus for hiring youths under 35
A new exemption from social security contributions has been approved when hiring youths under 35 years of age in the period 2019-2020. It is partial exemption (at a rate of 50%) and it is granted for 36 months, up to a maximum limit of EUR 3,000 per year.
Con sentenza 17 agosto 2018, n. 20761, la Corte di cassazione, Sezione Lavoro, è tornata ad occuparsi del licenziamento per superamento del periodo di comporto, confermando il proprio orientamento sui potenziali vizi formali che potrebbero inficiarne la validità.
Nello specifico – tra le ragioni del ricorso – il lavoratore aveva denunciato la falsa applicazione delle norme applicabili, avendo, il datore di lavoro, mancato di informare il lavoratore dell’approssimarsi del termine del periodo di comporto, mancanza che gli avrebbe impedito di esercitare il diritto di richiedere un periodo di aspettativa non retribuita superato tale termine.
La Cassazione, in coerenza con il proprio orientamento sul punto, ha confermato la legittimità del licenziamento, precisando che non è ipotizzabile un obbligo per il datore di lavoro di segnalare al lavoratore l’imminente scadenza del comporto, ribadendo che un simile onere non sarebbe individuabile estensivamente neppure in base ai principi di correttezza e buona fede.
La Corte ha infatti rilevato come tale tipo di comunicazione ‹‹servirebbe in realtà a consentire al dipendente di porre in essere iniziative, quali richieste di ferie o aspettativa, sostanzialmente elusive dell’accertamento della sua inidoneità ad adempiere l’obbligazione››.
Leggi qui la versione integrale dell’articolo pubblicato su Il Quotidiano del Lavoro de Il Sole 24 Ore.
The Court of Cassation with judgement No. 17978 dated 9 July 2018 established that:
– recognition of compensation for non-material damages is not automatic in the case of a “demotion” if it is not adequately proven;
– when the employee alleges a demotion associated to a breach by the employer to meet the obligation established by art. 2103 of the civil code, it is the latter that must provide proof of proper fulfilment of said obligation.
On this matter, the Court of Cassation reiterated that “It must be considered that when an employee alleges a demotion associated to a breach by the employer to meet the obligation established by art. 2103 of the civil code, it is the latter that must provide proof of proper fulfilment of said obligation, either by proving the effective lack of demotion, or by proving that it was justified by the legitimate application of entrepreneurship or disciplinary powers, based on art. 1218 of the civil code, due to the impossibility of the performance due to a reason beyond its control”.
This verification conferred to the trial judge can be faced only by carrying out an investigation in three chronological steps in logical sequence: 1) practical verification of the work tasks actually carried out, 2) identification of the qualifications and categories of work established by the national collective bargaining agreement applicable to the industry sector, as well as 3) comparison between the results of the first investigation and the rules established by the contractual regulations identified in the second one.
Click here to read the original version of the article.
The Court of Cassation, with ruling No. 17358 dated 3 July 2018 has issued another ruling on the dismissal ordered for failure to successfully pass the trial period and on the protections applicable when the employer’s withdrawal is unlawful if ordered on the incorrect assumption of the validity of the related agreement. In the case in question, the Court of Appeals having local jurisdiction confirmed the ruling of the Judge of first instance who had verified that the probation period agreement attached to the employment agreement was void thus declaring unlawful the withdrawal of the employer and applying the reintegration and indemnification protection as per article 18 of the Law No. 300/1970. In this respect, the local Court argued that the probation period had to be deemed void because only during the appeal, and thus late, the company had attached suitable justification to demonstrate the need for a longer period respect to the one established by the National Collective Bargaining Agreement applicable to the sector. Moreover, the local Court confirmed the ruling of the Court of first instance regarding the applicability of the actual protection, refusing the exception established by the aliunde perceptum and percepiendum principle, due to the fact that it was brought forth late, at the time of the appeal. The company filed an appeal at the Court of Cassation against said ruling. On the lawfulness of the matter, the Court restated its opinion (inter alia see Cassation ruling No. 17921/2016) according to which dismissal ordered on the erroneous assumption of the validity of the probation period agreement, in fact void since the probation between the parties had already occurred successfully, does not represent an exception of the application of the limitations on dismissals. This because freedom of decision as part of the probation period requires that said probation period is validly set-up. Therefore, since the requirements of substance and form called for by the law did not apply, the clause was void – given that the clause was partial and did not extend to the overall contract – leading to a “conversion” into a standard contract, with applicability of the related protection regime for unlawful individual dismissals, thus leading to the legal verification of whether or not the just cause or justified reasons principles applied. Therefore, the Court of Cassation has deemed the dismissal in question as occurred when the employment relationship had already become an open term relationship and having verified the lack of reason, applying the established case law principles of lawfulness regarding the responsibility of proof to be borne by the employer, also regarding the dimensional requirement.
