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Snacks: Digestible Weekly Labour News – Issue 1108 June 2023


"In labour intensive service contracts instructions and supervision of the workers can be regularly done through a chat on social network."

Open-ended collective agreement and unilateral termination
Collective agreements have a purpose and function in society that precludes their provisions being permanently fixed. Collective bargaining regulations can only apply for a limited time period as they must be able to adapt to continuous social and economic changes. For these reasons, when parties enter into an open-ended collective agreement, the agreement must safeguard each party’s right to unilaterally terminate it, even if that right is not expressly provided for by the parties. Where an employer unilaterally withdraws from a collective agreement only the rights acquired by the employees under the agreement (e.g. back pay or other remuneration for services provided prior to the withdrawal) are unaffected. In contrast, an employee’s expectations on the basis of the previous and more favourable regulation are not protected.
Supreme Court 23/05/2023 no. 14216

“Labour intensive” sub-contracting and power of direction and control via WhatsApp
Services provided under a sub-contract are predominantly or almost exclusively work provided by employees are called “labour-intensive” or “light” sub-contracts. In these sub-contracts a contractor organises the resources to perform the sub-contract and therefore exercises the power of direction and control over the employees. Moreover, the contractor may exercise this power of direction and control through a specific WhatsApp chat to coordinate activities, organise work shifts, grant leave and exercise disciplinary actions over sub-contracted employees. In relation to business risk, this criteria is met if the sub-contract contains a detailed system of penalties to be paid by the contractor if it does not fulfil its contractual obligations and gives the principal the right to appoint another company if the contractor fails to perform the services. In this case the related costs will be charged back to the contractor.
Court of Rome, 10/05/2023 no. 5025

Transfer of business without written agreement
The transfer of a business does not necessarily need to be in writing and may take place de facto with the transfer of the material components needed for the transferred business to carry on. Any transaction involving a change in the ownership of a business, provided that the entity transferred retains its identity following the transfer, constitutes a transfer of a business under Article 2112 of the Italian Civil Code. The fact that the transfer of a business unit is not for profit is not decisive; the determining factor is the existence of an organisation with the resources necessary to carry on the business activity. As there is no legal requirement for a transfer of business to be in writing, the transfer of the resources to carry on the business does not require the signing of a contract between the transferor and the transferee. The transfer of a business may be effected de facto, by the actual transfer of the tangible components constituting the business unit.
Court of Catanzaro 17/02/2023 no. 161

Indemnity in lieu of weekly rest is remuneration not compensation
Payments to employees for missed daily and/or weekly rest days are considered remuneration and are subject to standard IRPEF taxation. The Supreme Court found employees’ arguments that payments to compensate them for missed rest days are compensation and, therefore, tax exempt to be incorrect. The indemnity in lieu of weekly rest is comparable to the indemnity in lieu of holidays accrued but not taken, which is clearly remuneration and subject to IRPEF. The indemnity in lieu of rest days, like the indemnity in lieu of holidays not taken, also arises on the basis of work performed during time taken away from rest.
Supreme Court (ord.) 18/05/2023 no. 13727

Absence due to illness and carrying on other activities
The dismissal of an employee who, on the same days that he was absent from work due to an injury to his left ankle, carried out activities incompatible with his medical prescription for “rest and treatment” was lawful. The employer established that their employee had gone for long walks, ridden a scooter and had been loading and unloading supplies at his family shop during his sick leave, and considered that these activities were likely to impair or delay his recovery. Disciplinary dismissal had been ordered on this basis. The Supreme Court upheld the dismissal. It reaffirmed that the obligations of diligence and loyalty connected with sick leave were both breached when the employee carried out the activities that were considered “incompatible” with their injury, which is in itself was sufficient to prove the non-existence of the supposed injury.
Supreme Court 12/05/2023 no. 12994

Employee’s death due to illness and commencement of limitation period for claim for damages
The limitation period for bringing a claim for damages following death caused by an occupational disease runs from the time when the claimants became (or could have become) aware that the illness or disease originated at the workplace or through working, and of the resulting damage. This limitation period runs from the time when, as a result of one or more concurrent facts, there is certainty of the knowledge of the disease, of its occupational origin and of the attainment of the minimum compensable amount. The limitation period begins when the illness was (or could have, using ordinary diligence) been perceived as wrongful harm attributable to carrying out work activities. In contrast, the time of the event that caused the illness, and the moment when the illness manifested itself externally are not decisive. These principles also apply to the survivors of an employee who died as a result of an occupational disease. Therefore the limitation period will start to run in this case too only from the time when, after the death of the relative, there is knowledge or awareness of the occupational cause of the death.
Supreme Court 19/05/2023 no. 13806

Solidarity contributions due with option for (some) corporate welfare measures
The INPS has clarified the use of company welfare and on the option to replace performance bonuses with the use of welfare measures. A list of welfare benefits and services has been provided which, according to the tax regulations (Article 51, paragraphs 2 and 3, TUIR), do not constitute employee income. They are, therefore, exempt from the obligation to pay contributions. INPS noted that, if employees opt for corporate welfare measures in substitution (in whole or in part) of a performance bonus, the use of contributions for supplementary social security and supplementary health care is exempt even if the ordinary tax deductibility limits are exceeded (i.e. €5,164 for supplementary social security and €3,615 for supplementary health care). The INPS has settled an interpretative conflict as to whether or not employers are obliged to pay the 10% solidarity contribution on the sums paid, in lieu of the performance bonus, to supplementary pension funds and supplementary health care funds. The answer is that the contributions paid for these two items (supplementary social security and supplementary health care) are always subject to the 10% solidarity contribution to be paid by the employer.
INPS, Circular 31/05/2023 no. 49

Increased monthly allowance for extracurricular traineeships
ANPAL has clarified that, from 25 May 2023, the allowance for extracurricular traineeships under the national “Youth Employment Initiative” programme has been raised to €500 per month from €300 per month. This applies to extracurricular traineeships that involve temporary placement in a company to provide the trainee with vocational training useful for entering – or re-entering for unemployed young people – the labour market. The traineeships are implemented through an agreement between the trainee’s school/body and the company and are to facilitate the student’s professional transition into the world of work and to reintegrate unemployed young people. The trainee’s training project must be attached to the agreement, including the duration and planned location of the activity.
ANPAL, Note 26/05/2023 no. 6902

Manager’s dismissal for failure to activate anti-Covid measures lawful
If an employer accuses a manager of failing to take certain steps, in this case failure to implement Covid-19 workplace containment measures, it fulfils its burden of proof by proving the substantive failure to perform. The accused manager must then prove that they failed to perform the assigned task for a reason not attributable to them and not to a lack of diligence. On the basis of this principle, a disciplinary dismissal of a medical director in charge of a hospital, for not having implemented, during the Covid-19 emergency period, the safety containment measures ordered by the national and regional authorities was confirmed. Even if middle managers were responsible for implementing the measures, the senior manager remained liable for not having verified that the hospital’s Covid containment measures had been implemented.
Court of Monza, 16/05/2023