A non-compete agreement which is conditional upon the preservation of the original duties introduces an element of vagueness that undermines the entire agreement.

This principle was confirmed by the Italian Court of Cassation in order no. 10679 of 19 April 2024. In this case, the non-compete agreement provided that if the employee’s duties changed during the term of the relationship, the employee would be free from the non-compete obligation 12 months from the new duties. Moreover, the agreement provided that the geographical area subject to the non-compete agreement related to the Veneto region and to a further area that the company reserved the right to define on termination of the relationship.

In light of the above, it follows that the content of the non-compete agreement must be determined in advance and any clauses that result in its vagueness (such as the modification of the duties or of the geographical area) result in its nullity.

Other related insights:

• Non-competition agreement remuneration. How the nullity cases work (Guida al Lavoro de Il Sole 24 Ore, 19 March 2021 – Vittorio De Luca, Antonella Iacobellis)

On 19 February, Assogrocery and the trade unions NIdiL, CGIL, FeLSA, CISL and UILTemp signed a collective agreement that grants protection for “shoppers”, i.e. collaborators who prepare and deliver shopping to customers’ homes using the client companies’ digital platforms.

The agreement implements the provisions of Article 2, paragraph 2 of Italian Legislative Decree no. 81/2015, which applies to so-called “principal-organised” (“etero-organizzate”) collaborators, which explicitly exclude the automatic application of subordinate employment legislation in the presence of collective agreements that provide for specific economic protections for collaborators.

The agreement provides that the “shoppers” remain self-employed to the extent that they are granted the possibility of freely choosing when to carry out the work, choosing the slots indicated by the platform and also being able to withdraw their availability.

From a financial point of view, among the most important measures, there is the recognition of a minimum remuneration of EUR 12.50 per assignment (lasting one hour) and an availability allowance of EUR 1.30 with guaranteed increases for Sunday and holiday work.

The agreement also provides specific protection for illness, which takes the form of the suspension of the account and the payment of a daily allowance upon the occurrence of specific events, as well as maternity protection, for which financial compensation is provided and the maintenance of the collaboration relationship through the suspension of the account.

Other related insights:

• Co.co.co.: collective agreement excludes the protection of employment – De Luca & Partners (delucapartners.it)

Decree-Law 48 of 4 May 2023, so-called  “Decreto Lavoro“, which came into force on 5 May, lays down new measures to, inter alia, simplify the employment disclosure requirements to which companies are subject under the so-called “Decreto Trasparenza” (Legislative Decree 104/2022).

Unlike in the past, some of the information that employers were bound to provide in detail in the employment contract or in a specific policy (length of probationary period, training, paid holidays and leaves, notice of dismissal and resignation, components of remuneration, working hours, overtime, social-security and insurance institutions) may now be given to workers just by referring to the relevant provision of law or of the collective agreement that applies to the employment, including the company agreement.  For simplification purposes, and in order to ensure uniformity in the employer’s communications, the latter shall deliver and make available to workers, including through publication on the website, the national, local and company collective agreements, as well as any company rules that apply to the employment.       

The National Labour Inspectorate (Ispettorato Nazionale del Lavoro, ‘INL’), in note No 2572 of 14 April 2023, provided operational guidelines for the issuance of authorisations for video surveillance systems and instruments which enable remote control of workers within the meaning of Article 4 of the Workers’ Charter (Italian Law No 300/1970). As set out in the operational note, the guidelines are based on application experience and operational problems that have emerged over time, including in the light of the technological evolution of the instruments that can be adopted, while also taking into account the guidelines of the Italian Data Protection Authority (Garante per la protezione dei dati personali).

The INL has, among other things, specified that:

• the installation of an audio-visual system or other instruments which may enable remote control of workers must necessarily and as a priority be preceded by a collective agreement with the workplace unions (Rappresentanza Sindacale Aziendale/Rappresentanza Sindacale Unitaria, ‘RSA/RSU’). The authorisation procedure, in fact, appears to be only contingent and subsequent to failure to agree with the unions and is conditional on proving the absence of the RSA/RSU;
• the installation of such instruments cannot be justified by any consent, even informed consent, of the individual workers concerned. In this case, installation would not only be unlawful but also criminally sanctioned;
• undertakings with several production units located within the competence of the same INL area office may submit only one authorisation application;
• companies located in several provinces, as an alternative to concluding individual agreements with the RSA/RSU, may conclude a single agreement with the trade unions that are comparatively more representative at national level;
• Article 4 of Italian Law No 300/1970 applies to companies where there are workers: (i) in the case of establishing a new company that at the time of the application has no workers but plans to employ staff as soon as the business activity starts, it may submit the authorisation application indicating the number of workers that there will be when the activity starts; (ii) in the event that a company already in operation with a plant legitimately installed and functioning but without workers, intends to employ personnel, it may submit an application but must – at the same time – certify the decommissioning of the plant, which will be put into operation only after the authorisation measure, if any.

The note also clarifies how geolocalisation systems can be used. The INL, expressly referring to the conclusions that the Italian Data Protection Authority has over time provided on the subject, refers to the Authority’s requirements for the configuration of these systems. The systems, in fact, must:

• exclude continuous monitoring of the worker;
• allow authorised persons to view the location only when strictly necessary in relation to the purposes pursued;
• allow the device to be deactivated during breaks and outside working hours;
• process by pseudonymising personal data;
• provide for the storage of collected data only when necessary and with retention times proportionate to the purposes pursued.

The INL also clarifies that the procedure imposed by Article 4 of Law No 300/1970 also applies to the types of work to which the protections given to subordinate employment relationships are extended by law. This includes collaborations that take the form of predominantly personal, continuous services organised through an employer (etero organizzate), even if organised through platforms, including digital ones.

Other related insights:
Video surveillance: the repetition of the procedure following a change in the ownership structure is unnecessary

Video surveillance: note of the Ministry of Labour no. 1241 dated 1 June 2016

In its message no. 1269 of 3 April 2023, the INPS [Italy’s National Social Security Institute] extended the deadline for submitting the request for social security contribution exemption for private employers who are in possession, as of 31 December 2022, of the gender equality certification referred to in Article 46-bis of Legislative Decree of 11 April 2006, no. 198

In particular, the application deadline for the 1% social security contribution exemption (initially set for 15 February 2023) was postponed to 30 April 2023.

In the same message, INPS also announced that special indications will be provided, in agreement with the Ministry of Labour, to allow – also in light of the results of the first phase of the application for the exemption – access to the social security contribution relief to employers who have obtained the gender equality certification after 31 December 2022.

Lastly, it should be noted that the Ministry of Labour, in its press release of 28 November, announced the ministerial decree of 20 October 2022, which defines the criteria and procedures for granting the social security contribution exemption for private employers who achieve the gender equality certification introduced into our system by Law No. 162/2021.

This is a voluntary certification that the most virtuous companies can apply for, and obtaining it brings with it a series of benefits, including: relief from social security contributions of no more than 1% and up to a maximum of €50,000.00/year for each company; advantageous criteria in the case of tenders; possibility of access to a bonus score for the evaluation, by national and regional European funds authorities, of project proposals for the granting of State aid to co-finance the investments made.