Legislative Decree no. 104 of 27 June 2022, implementing EU Directive no. 2019/1152 on transparent and predictable working conditions was published in the Official Gazette
With the publication in the Official Gazette on 29 July 2022, the new provisions set out in Legislative Decree no. 104 of 27 June 2022, implementing EU Directive no. 2019/1152 on transparent and predictable working conditions in the European Union officially entered into force on 13 August.
The decree supplements the information obligations under Legislative Decree no. 152/1997, which extends mandatory information to be provided to the worker when hired, the range of recipients of the information obligations, and penalties for cases of delay or non-compliance.
The measure introduced the “Minimum requirements on working conditions”, in Chapter III. These concerned the probationary period, combination of jobs, minimum job predictability, compulsory training, and transition to more predictable, stable and secure forms of work.
Chapter IV identifies the protective measures for the worker if there are violations of the new obligations introduced by the legislation.
Aims and scope
The decree partly regulates the right to information about the essential elements of the employment relationship and working conditions by introducing new information obligations for the employer. These will apply to new hires after 1 August 2022 and can include the relationships in place before that date at the worker’s request.
Employers for employment contracts (open-ended or fixed term; full-time or part-time or temporary), staff leasing contracts, and occasional service contracts are recipients of new reporting obligations. The obligations apply to domestic labour relations subject to exceptions and maritime and fishing employment subject to any applicable special regulations.
Further parties obliged to provide information on the employment relationship essential elements are principals who stipulate contracts for continuative and coordinated services under Art. 409, paragraph 1, no. 3, Code of Civil Procedure and work contracts with predominantly personal and continuous services organised by the principal under Art. 2, paragraph 1, Legislative Decree no. 81/2015.
The decree applies to employment relationships of public administrations and public economic entities.
This decree broadly covers most applications and only excludes a few contractual types. It excludes self-employment relationships, contracts with a working time equal to or less than an average of three hours weekly in four consecutive weeks, agency relationships, employment relationships in family businesses and some special public employment relationships.
Mandatory information on the employment relationship and reporting methods
The decree expands the range of mandatory information that employers must provide to workers.
Without referring to the law or collective labour agreement, in addition to the employment relationship typical information (parties’ identity, place of work, classification, worker level and qualification, employment relationship start and end date), the employer must provide a series of additional information including:
– the identity of the user companies for workers employed by a staff leasing agency;
– probationary period duration;
– the right to receive any training by the employer;
– the duration of holiday leave and other paid leave to which the worker is entitled;
– termination notice procedure, form and terms sent by the employer or worker;
– any remuneration or compensation initial amount and its components, and payment period and method;
– ordinary working hours, overtime conditions and remuneration, and conditions for changing shifts, if the employment contract includes predictable working hours.
– the collective agreement, including the company agreement, applied to the employment relationship, specifying the parties that signed it;
– the bodies and institutions receiving the social security and insurance contributions and social security protection provided by the employer.
Where the employment relationship has unpredictable organisational arrangements or does not provide for ordinary scheduled working hours, the employer shall inform the employee about:
– working hours variability, the minimum amount of guaranteed paid hours and the remuneration for work performed in addition to the guaranteed hours;
– the reference working hours and days;
– the minimum notice period to which the worker is entitled before starting work and the period within which the employer may cancel the assignment, where permitted by the type of contract and if agreed.
The information referred to above must be provided in writing by the employer by handing over to the worker, at the time the relationship was established and before the work start date, either the employment contract or the copy of the employment establishment notice. Alternatively, the employer may provide the worker with a separate notice containing the above information, within seven days of the relationship start date. The information is kept and made accessible at any time at the worker’s request.
As an exception to the above and only for specific information (e.g.: duration of leave for holidays and other paid leave, right to training, where applicable, procedure, form and terms of notice, collective agreement, any company agreement, and social security and insurance institutions that receive contributions), the employer may provide it within 30 days of the employment start date.
If the employment ends before a month from the employment start date, the worker must be given a written statement containing the information, at the time of termination, if this obligation has not been fulfilled.
The information obligations apply, at the worker’s written request, to existing employment relationships on 1 August, and the employer or principal must fulfil the information obligations under the decree within 60 days.
Further information obligations if automated monitoring and decision-making systems are used
The decree includes more detailed information obligations for employers who use automated monitoring and decision-making systems. They must inform workers about systems which provide data relevant to the recruitment or assignment, management or employment relationship termination, assignment of tasks or duties, or data affecting the monitoring, assessment, performance, and fulfilment of worker contractual obligations.
Before the employment start date the employer shall also provide further information concerning:
– Employment relationship aspects which are affected by the systems;
– systems’ purposes and aims;
– systems’ logic and operation;
– categories of data and main parameters used to plan or train systems, including performance assessment mechanisms;
– controls on automated decisions, correction processes and quality management system manager;
– level of accuracy robustness and cybersecurity of the systems, metrics used and their potentially discriminatory impact.
The employer must supplement the information by providing employees with data security instructions and update the processing operations register on automated decision-making and monitoring. Tools used must be compliant with the GDPR and to check this, the employer/principal must carry out a risk analysis and an impact assessment of the processing operations. In some cases, they may require a Data Protection Authority prior consultation.
The employer must inform the worker, 24 hours in advance, of any change affecting the above information, which entails changes in the working conditions.
The above information must be sent to any RSA or RSUs (trade union representatives) established in the company or, failing that, to the trade union associations’ local offices that are comparatively more representative at a national level.
Information obligations in posting abroad cases
Specific information obligations are provided for worker’s posted abroad to an EU Member State or third-party country, as part of a transnational provision of services.
The information to be provided, prior to departure, concerns:
– the country or countries where the relationship is to be carried out and expected duration;
– remuneration currency;
– any additional benefits in cash or in kind;
– conditions governing repatriation;
– the remuneration to which the worker is entitled under the law applicable in the Member State;
– allowances for the posting and arrangements for reimbursing travel, board, and lodging expenses;
– the address of the institutional website of the host Member State where the information on the posting is published.
Changing the contract after recruitment
The employer and principal must inform the worker of any contractual modification, no later than the day before the changes take effect. This obligation does not apply to those changes that result directly from the amendment of legislative or regulatory provisions or applicable collective agreement terms.
Penalties
Failure to comply, delay, incomplete or inaccurate compliance with the reporting obligations could result in an administrative penalty ranging from € 250 to € 1,500 for each worker. This is subject to the worker’s complaint and an inspection.
Minimum working conditions requirements
Chapter III of the decree introduced important changes to several labour law provisions, including (i) probationary period; (ii) employment relationship exclusivity; (iii) minimum job predictability; (iv) transition to more predictable, secure and stable forms of employment; and (v) compulsory training.
Probationary period
The decree states that any probationary period maximum duration may not exceed six months. This is without prejudice to a shorter duration required by collective agreements.
The probationary period proportionality concept was introduced for fixed-term contracts, which states that the probationary period duration must be proportional to the contract duration and tasks connected to the type of employment.
If there is a fixed-term contract renewal for the performance of the same duties, the employment relationship is not subject to a new probationary period.
Any events interrupting the relationship, particularly, illness, accident, compulsory maternity, or paternity leave result in a probationary period extension equivalent to the absence.
Combination of jobs
Art. 8 of the decree introduced changes to the combination of jobs, i.e., the better known “exclusivity clause” which entitled the employer to prohibit the employee from carrying out a different profession.
Without prejudice to the employee’s obligation not to carry out work in competition with the employer, the latter may only prohibit other work when performed outside the agreed schedule if one of the following conditions exists:
– an impairment of the worker’s health and safety (including compliance with working time regulations);
– the need to guarantee the public service integrity;
– a conflict of interest between the additional and main work, even if there is not a breach of the duty of loyalty.
The same rules apply to principals as part of continuative and coordinated service contracts under Art. 409, paragraph 1, no. 3, Code of Civil Procedure, contracts with predominantly personal and continuous services organised by the principal under Art. 2, paragraph 1, Legislative Decree no. 81/2015.
Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation of Il Sole 24 ore.