The National Employment Inspectorate (the ”NEI”), with note no. 1156 dated 22 December 2020, provided to the territorial inspectorates clarifications on the procedure to be followed in the event of a request to enter into a fixed-term contract in assisted form in accordance with Art. 19, paragraph 3 of Italian Legislative Decree 81/2015. This refers, in particular, to cases where derogations are made from the requirements envisaged by the legislation by virtue of a “proximity contract” lacking the requirement of greater representativeness.
The fixed-term contract may not have a total duration exceeding 24 months or the longer duration envisaged by the industry’s National Collective Labour Agreement, subject to the possibility, in accordance with Art. 19, paragraph 3 of Italian Legislative Decree 81/2015, of signing a further contract having a term of 12 months at the relevant Territorial Employment Inspectorate.
Art. 8 of Italian Decree Law 138/2011, converted into Italian Law 148/2011, states that collective agreements signed at company or territorial level by trade union associations comparatively most representative on a national basis may implement specific agreements with effect in relation to all workers involved. The agreements may concern the regulation of issues related to the organisation of work and production with reference, inter alia, to fixed-term contracts.
The note in question specifies that the Inspectorate’s activity must be limited to verifying (i) the completeness and formal correctness of the fixed-term contract, (ii) the genuineness of the worker’s consent and (iii) the signature of the same. However, if violations of the imperative rules are identified (e.g. lack of justifying causes), the recourse to the “assisted procedure” will not be admissible.
In the case submitted to the NEI, the derogation from the requirements envisaged by the legislation on fixed-term contracts derived from the regulation contained in proximity contracts signed in accordance with Art. 8 of Italian Decree Law 138/2011 (converted into Italian Law 148/2011).
In that regard, the NEI specifies that if the proximity contracts were signed in violation of Art. 8 – with particular reference to constraints of purpose, in addition to those imposed by the Constitution or, also, in relation to the requirement of greater comparative representativeness of the signatory organisations – they have no effect. Therefore, it will not be possible to enter into further fixed-term contracts according to the “assisted procedure” in application of these proximity contracts.
On the point, then, the NEI cited the indications provided with circular no. 3/2018 relating to circumstances of proximity agreements entered into by associations not having the requirements of representativeness required by Art. 8 of Italian Decree Law 138/2011.
In particular, with this circular, the NEI clarified that proximity contracts signed by entities “not authorised” may not produce effects of derogating from the provisions of law and regulations envisaged by the National Collective Labour Agreement. During the assessment, the inspectors must consider these contracts ineffective and adopt the consequent measures.
With reference to fixed-term contracts, in the same circular, the NEI stated that if the employer has applied rules dictated by a collective agreement not signed by the comparatively most representative organisations, the effects derogating or supplementing the regulatory rules cannot be applied. This, according to the NEI, involves the lack of application of the flexibility institutions envisaged by Italian Legislative Decree no. 81/2015 and, depending on the circumstances, also the “transformation” of the employment relationship into a permanent employment relationship.
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