Decree of the Italian President of the Council of Ministers (‘Decree’) of 6 July 2023 set out the guidelines for planning entry flows of foreign workers for the three-year period 2023-2025.

The Decree provides the criteria for determining new entry flows, setting a three-year quota of a total of 452,000 admissions for employees (both seasonal and not seasonal) and self-employed foreigners residing abroad. Of these, 136,000 are planned for 2023, 151,000 for 2024 and 165,000 for 2025. In addition, there is a three-year quota of 28,500 admissions for domestic workers and carers (9,500 for each year).

In addition, the Decree also establishes the deadlines for submitting applications for authorisations relating to the new quotas.

Under the Decree employers must conduct a search for personnel in Italy before making an application for authorisation for non-EU citizens. The definition of “unavailability of a worker within Italy” and the related reasons will be the subject of a ministerial circular that will be issued by the Italian Ministries of Labour, Tourism, Interior, Foreign Affairs and Agriculture. In any event, the employer will have to self-certify, by means of a declaration in lieu of affidavit, the reason justifying the unavailability of a worker already present in Italy to hold the same position.

As soon as the Decree is published in the Italian Official Gazette, it will be possible to identify the deadlines for submitting applications for authorisations under the new quotas for 2023.

De Luca & Partners signed off on the Italian pages of the Employment & Labour Law guide, 2023 edition published by English publisher Global Legal Insights. The volume gathers information and analysis on employment trends, changes in the legislative framework, relevant rulings, and reforms in progress and under discussion in 18 countries. Aimed at General Counsel, HR professionals, lawyers, advisors and managers who wish to have a series of useful global snapshots on relevant labour law issues, the Employment & Labour Law guide is now online.

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On 4 May 2023, Italian Decree Law No 48/2023 (the ‘Employment Decree’ (‘Decreto Lavoro’)) containing ‘Urgent measures for social inclusion and access to the workplace’ was published in the Italian Official Gazette.

The Decree introduced important initiatives on employment law, social security and social assistance, with effect from 5 May 2023.

One of the main initiatives in the employment law field are changes to the permitted reasons for fixed-term employment contracts, with a strengthening of the role of collective bargaining.

The permitted reasons justifying a fixed-term contract of between 12 and 24 months, the extension for more than 12 months, or the renewal of a fixed-term contract are exclusively those provided for by the collective agreements concluded by the associations comparatively more representative at national level, or in the absence of such provisions and until 30 April 2024, the individual parties, for technical, organisational and production needs.

The Decree also simplifies the employer’s information obligations introduced by the ‘Transparency Decree’.

In contrast to the past, some of the information that the employer was required to provide in the employment contract or in a specific information notice can now be provided to employees simply by referring to the relevant legislation or collective bargaining agreement,  which may also be the company’s bargaining agreement, applied to the employment relationship. This information relates to, for example, probationary period duration, training, paid holidays and leave, notice of dismissal and resignation, salary components, working hours, overtime, social security and insurance institutions.

To simplify the obligation, and to ensure uniformity in the employer’s communications, the employer will be required to deliver or make available to staff, including through publication on the website, national, regional and company collective bargaining agreements, as well as any company regulations applicable to the employment relationship. 

The employer’s information obligations on the use of automated decision-making and monitoring systems have also been reduced, thus further simplifying these information obligations.

Further measures introduced by the Decree concern:

• amendment to the health and safety at work regulations, with particular reference to the appointment obligations and the obligations to be fulfilled by the occupational doctor for the issue of the fitness for work certificate, as well as the introduction of further employer training obligations in the event of use of equipment that requires special knowledge;
• the possibility for companies with more than 1,000 employees that have signed group expansion contracts by 31 December 2022 and that are not yet concluded, to enter into a supplementary agreement at ministerial level until 31 December 2023;
• the possibility of requesting a further Extraordinary Wage Guarantee Fund (Cassa Integrazione Guadagni Straordinaria, ‘CIGS’) period, until 31 December 2023, by way of derogation from the maximum duration limits, for companies that, in 2022, have activated a reorganisation and restructuring plan and that, due to the prolonged unavailability of company premises, have not been able to complete them.

The Decree also provided a series of measures relating to social security and assistance, aimed above all at supporting youth employment, promoting the permanent integration into the labour market of beneficiaries of the Inclusion Allowance and reducing the ‘tax wedge’ (cuneo fiscale).

Other related insights:
Transparency Decree: new obligations for the employer

With Order No 7029, of 9 March 2023, the Italian Court of Cassation, reversing the conclusions reached by the Court of Appeal of Bologna, deemed legitimate since justified by a just cause the dismissal of a worker who, derisorily, had turned against a colleague telling her in dialectal form ‘but why did you get pregnant too?’, ‘but why aren’t you a lesbian’, ‘and how did you get pregnant?’.

The facts of the case

The situation in question had occurred at a bus stop, where the colleague was waiting to take up service as a driver, in the presence of other people, while both the fired worker and the person they spoke to were in uniform and therefore recognizable as employees of the company employer.

The employee, fired by the company, challenged the dismissal and obtained, on appeal, partial acceptance of his appeal. Specifically, the appeal judges believed that the episode contested against the employee, albeit undisputed from a factual point of view, should be relegated to ‘substantially uncivilized’ conduct punishable at the most with a conservative sanction (suspension from pay and service) .

The order of the Italian Court of Cassation

The Italian Court of Cassation, in overturning the decision of the appeal judges, reiterates that, according to established jurisprudence, the ‘just cause’ of dismissal pursuanttoArticle 2119 of the Italian Civil Code integrates a general clause, which requires to be actualised by the interpreter through appreciation of external factors relating to the general awareness and the principles tacitly referred to by the law, therefore through declinations that have a legal nature and whose non-application can be deduced before the Italian Court of Cassation as a violation of the law.

According to the Judges of the Court of Cassation, the assessment made by the trial judge in attributing the disputed conduct of the employee to mere “uncivilised” behaviour would not conform to the values present in the social context and to the principles of the legal system, referring, in fact, to a behaviour contrary only to the rules of good manners and the formal aspects of civil life, where the content of the expressions used and the further factual circumstances in which the behaviour of the employee must be contextualized are instead in contrast with much more meaningful values now rooted in the general awareness and are expression of general principles of the legal system (Articles 2, 3, 4 and 35 of the Italian Constitution).

General principles which, the Court continues, find precise declination in the legal system through the provision of anti-discrimination regulations in various ways aimed at preventing or repressing forms of discrimination linked to gender, among which Italian Legislative Decree no. 198/2006 (Italian Code of equal opportunities between men and women) whose Article 26, first paragraph, also identifies harassment as discrimination, namely those unwanted behaviours, carried out for reasons connected to gender, with the purpose or effect of violate the dignity of a female or male worker or create an intimidating, hostile, degrading, humiliating or offensive environment.

In the light of the above considerations, the Court quashed the decision of the Court of Appeal for the review of the overall case in order to verify the existence of just cause for the dismissal notified to the concerned worker in the light of the correct reference value scale reconstructed by the Court itself in the order in question.

Other related insights:

Verbal assault and dismissal for just cause (Il Quotidiano del lavoro de Il Sole 24 Ore, 25 January 2021 – Enrico De Luca, Antonella Iacobellis)

 The 2018 Budget Law for the protection of employees who are victims of harassment (Newsletter Norme & Tributi no. 126 – Italian-German Chamber of Commerce – Vittorio De Luca, Luciano Vella)

With an Order dated 11 January 2023, the Italian Data Protection Authority (Autorità Garante per la protezione dei dati personali, the ‘Authority’) imposed on a company the payment of an administrative fine equal to EUR 5,000 for having kept active and read the contents of the email account of a collaborator.

The facts

During some negotiations aimed at defining the acquisition of a cooperative company, a company agreed that a representative of the latter should collaborate, using the name of the purchasing company, in the promotion of a common supplier on the occasion of a trade fair.

A company email account was then activated for the collaborator in order to allow her to communicate with potential customers met at the event.

A few months later, the negotiations between the two companies were interrupted and the complainant requested the deactivation of the email account assigned to her. In order not to lose the contacts of potential new customers collected during the event, the company kept the account active and set up a system for forwarding incoming communications to the sales manager’s email, deactivating the complainant’s email address only after (approximately) six months from activation.

The outcome of the investigation by the Authority

The Authority first of all noted that the company has not complied with its obligation to inform the complainant about the processing of data carried out on her email account as instead required by Article 13 of Regulation (EU) 2016/679 (the ‘Regulation’). This obligation, the Authority recalls, also applies in the context of any pre-contractual negotiations as an expression of the principles of fairness and transparency (see Article 5 of the Regulation).

In the present case, the company:

1. processed personal data in the absence of a legitimation criterion to the extent that it has (i) viewed, without an appropriate legal basis, the correspondence received and sent to the account during collaboration with the complainant and (ii) set up, at the end of the collaboration, an automatic email forwarding system to a different company account;
2. did not achieve an adequate balancing of ‘the interests at stake’: on the one hand, in fact, the need for the company to continue its economic activities is recognized and on the other, the right to privacy of the data subject (namely the complainant). In this regard, the order reads, ‘the (legitimate) purpose of not losing useful contacts for one’s commercial activity, […], could have been pursued with less invasive processing activities and, therefore, compliant with data protection regulations, with respect to that carried out in the present case’;
3. did not comply with the obligation to facilitate the exercise of the rights of the data subject to the extent that it has not provided a suitable response to the request for cancellation – the so-called ‘right to be forgotten’ – submitted several times by the complainant.

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That said, the Authority recalls that: ‘[…] the legitimate interest in processing personal data to defend one’s legal claim [can]not lead to an a priori cancellation of the right to the protection of personal data recognized to the data subjects […]’.

The order in question also recalls a well-established orientation of the Authority according to which an adequate balancing of the interests as mentioned in letter b) above is achieved by activating an automatic response system with which the sender is provided with alternative addresses through which to contact the company, data controller, without accessing incoming communications, as instead done in the case in question in breach, among others, of the principle of data minimization (see Article 5 of the Regulation).

Other related insights:

Employers who keep the former employee’s email account active commits an offence

Company e-mail account and data processing (Legal – Le Fonti, N. 24 May 2018, Vittorio De Luca)