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23.062015

JOBS ACT: THE REFORM OF ARTICLE 2103 OF THE CIVIL CODE AND TWO CASES OF IUS VARIANDI

The Legislative Decree on contracts passed by the Council of Ministers reforms article 2103 of the Civil Code including the possibility for employers to unilaterally change a worker’s job duties within the same level and contractual legal employment category. Thus it will no longer be necessary to perform an evaluation on the equivalence of the duties for the purpose of clarifying the legitimacy of ius variandi. In this sense the legal orientation has been superseded, which had become consolidated on the point, whereby to verify the employer’s legitimate exercising of ius variandi, it was necessary to verify the actual uniformity between duties later assigned to the worker and the original duties, in terms of their concrete equivalence compared to the skills requested, professional level reach and use of the professional background acquired by the employee. This without being significant that from a formal standpoint, both types of duties are part of the same operating area. Superseding of this orientation will certainly result in a significant reduction in the number of disputes concerning demotion, this is also based on the fact that this possibility of modification does not even require particular formalities. A change in duties which determines a lower level, with the same legal category, will be possible in two cases: a) when it is based on a “change in company structure that affects the worker’s job” and b) in cases included in collective contracts. The hypothesis in letter a) raises questions regarding interpretations which will presumably be resolved in light of the idea of objective justified reason connected in turn to “reasons connected with production activity, organisation or work and its regular functioning”. In the latter cases unilateral modification of duties requires complying with certain limits: it can take place only within the same category (manager, middle manager, white collar worker, blue collar worker) and must be notified in writing, or it is invalid. In addition, the worker shall have the right to maintain the current employment level and salary, with the exception of remuneration elements connected to particular procedures for performing the previous job. Lastly, in the interest of the worker to maintain his job, acquire a new profession or improve working conditions, the possibility has been included to stipulate various agreements changing the duties, legal category, employment level and related salary, in a trade union venue before a judge or certification commissions. This solution adopted in practice already in the past for private employment, definitively clarifies its legitimacy. The greater flexibility introduced by the revision of article 2103 of the Civil Code changes the legal orientations into law that were reached trying to provide answers for the current job market.