Stefania Raviele attended as speaker at the “Legal and Contractual Regulation of Working Hours” conference, organised by Assolombarda on 16 October in Milan.
Stefania Raviele, starting from the legal regulation of working hours, discussed the issue of possible checks, by the employer, of working hours, partly in light of the very recent ruling of the European Court of Justice, as well as the margins and limits of derogation of collective contracting, to the legal regulation of the various institutions associated with working hours. Specific attention paid to risks, including of a compensatory nature, associated with breaches of the reference legislation and with the main jurisprudential guidelines on this matter.
Click here for further information on the conference.
With its judgement no. 21562 filed on 3 September 2018 (decision in camera on 13 March 2018), the Court of Cassation examined the issue of breaks at work (in the case in question, the lunch break), with specific attention paid to the case of a part time worker.
The Facts
An employee hired under a part time employment contract appealed to the Labour Court to ascertain his right to payment for hours worked over and above the working hours contractually agreed upon (which were 30 hours, as compared to the standard 37.5 hours of work per week), including, inter alia, the 30-minute lunch break which was unilaterally imposed by the employer subsequently to the beginning of the relationship. The Court rejected to worker’s claim. The worker filed an appeal against this first instance ruling. The local Court recognised the worker’s entitlement to receive the additional pay for the overtime work, but did not include the 30-minute lunch break in the calculation of the working hours. In confirming the first instance ruling in regard to the claim for indemnity connected to the late notification of the shift schedules, the Court pointed out that, conversely to what he had claimed in his own defence brief, the worker had not submitted the applicable regulatory and contractual sources indicating that there did in fact exist an obligation to promptly notify the shift schedules. As if that did not suffice, according to the Court of Appeal, the worker had neglected to submit specific facts that would indicate the alleged violation of the principles of fairness and good faith in the performance of the contract, nor had he identified specific monetary and non-monetary effects on his working and personal life that would have enabled the acknowledgement of the damage he was claiming indemnification for. The worker then resorted to the Court of Cassation, which rejected his claims.
Notion of working hours and breaks
To contextualise the case the Court of Cassation examined, one must start from the notion of working hours and outline the provisions which have been amended and revised over the last few decades. To date, it is Legislative Decree 66/2003, with its transposition of two EU directives (i.e., 93/104/EC and 2000/34/EC) that has dictated a regulatory framework applicable to working hours. Based on the legislation, working hours can be defined as “any period in which the worker is at work and available for the employer and performs his or her activities and functions.” Therefore, the remuneration obligation does not apply only when the employer can prove that the employee is free to act at will or is not subject to the hierarchic powers at the given time. In relation to said breaks, when such a break is provided during the work activity, if there is no express legislative (i.e., breaks for workers who work in front of video terminals) or contractual provision that considers such a break as part of the working hours, it is the worker’s obligation to prove that the break is in some way connected or related to the work itself, and ordered by someone other than the worker, and is therefore not left to the worker’s free choice.
The ruling of the Court of Cassation
In the ruling in question, the worker’s appeal to the Court of Cassation essentially consisted of two main claims: (a) the first is related to the need to consider lunch breaks as part of working hours and (b) the second is related to the conduct of the employer, who had imposed a 30-minute lunch break after the beginning of the employment relationship.
Concerning the first claim, the Court of Cassation recalled a now established principle (see, most recently, Court of Cassation 13466/2017) and reiterated the principle of law according to which working hours are nevertheless part of the “time a worker spends at the company while pursuing the activities that are preliminary and ancillary to the duties assigned to that worker, in the strict sense (…). Therefore, in order to be exempted from the remuneration obligation, the employer must prove that to pursue said activities connected to his or her services the worker is free to act autonomously and is not subject to [the employer’s] hierarchical power.” That same Court of Cassation then indicated that “ lacking a legal or contractual provision that includes that period of time as being a break in the working hours (…) it is the worker’s obligation to allege and prove that the break time is connected or related to his or her services, has been ordered by someone other than the worker and the duration of the break time is not left to the worker’s free choice.” The Court of Cassation underlined that in the case submitted to it, there was no legislative or contractual provision that would lead it to consider the lunch break as an integral part of the working hours (which would therefore require remuneration). Similarly, the Court observed that the worker had not proven that there existed a relation between his working activity and the lunch break during the working day. Consequently, the Court of Cassation found that the worker was not entitled to the claimed remuneration differences in regard to the lunch breaks.
Regarding the second claim, the Court of Cassation deemed lawful the unilateral modification of the working hours ordered by the employer, with the introduction of a 30-minute lunch break. In fact, the Court of Cassation underlined that “according to his or her specific requirements, the employer is obviously allowed to organise activities in shifts. Nevertheless, even if there are no specific legal or contractual provisions, these shifts must be notified to the workers reasonably ahead of time so as to allow them to arrange their plans … The good faith in the performance of the contract lies, among other things, in a general obligation of solidarity that requires each party to act in such a manner as to protect the interests of the other party (…). Verification in practice of the violation of these duties of fairness shall be carried out by the court in charge that will rule on the basis of the allegations made by the parties.” Therefore, according to the Court of Cassation, the mere introduction of a break or the organisation of the work in shifts cannot be considered as a change in status from full time to part time.
Conclusions
In conclusion, as expressed by the Court of Cassation in its judgement above, without prejudice to the legal and contractual exceptions and the possibility afforded to the worker concerned of proving the causality between the break and the pursuit of the work, a break is not considered to be part of working hours and is therefore not to be remunerated. Moreover, and again according to the reasoning followed by the Court, a break can be imposed by the employer, consistently with the organisation of the company and fulfilling contractual obligations fairly and in good faith, without requiring the consent of the worker, adequate notification being considered sufficient.
The Court of Cassation, with judgement No. 88 dated 4 January 2018, ruled that an employer’s decision to change working hours without consulting the trade union delegation but merely providing a notification cannot be deemed anti-union conduct if the employer implemented an agreement already reached between management and labour. In this case, Poste Italiane S.p.A. was sued for anti-union conduct on the assumption that it had changed working hours in violation of the provisions referred to in the National Labour Collective Bargaining Agreement (CCNL) in force, that is without prior consultation with the trade union delegation. However, the Court of Cassation, in upholding the decision of the Territorial Court, pointed out that the company and the trade union organizations reached a specific agreement effective in the case of application of new working hours in the production unit of reference and calling for an obligation to inform the Trade Union Delegation, which was in charge, within five days, to summon a consultation, if necessary. However, in the Court’s opinion, the company complied with the information obligation, since the Delegation remained inactive, with the consequent correct conduct of the company, which complied both with the CCNL provisions and the trade union agreement.
