On 5 December 2023, the agreement renewing the National Collective Bargaining Agreement for Executives of Cooperative Credit Banks (Contratto Collettivo Nazionale di Lavoro per i Dirigenti delle Banche di Credito Cooperativo, ‘CCNL’) signed by Federcasse and the unions FABI, FIRST/CISL, FISAC/CIGL, UGL Credito and UILCA/UIL was published.
The changes introduced concern, firstly, financial aspects relating to differentiated salary adjustments (so-called “double track”). Specifically, from 1 January 2024, the minimum annual remuneration due to executives will be EUR 73,000. In addition, executives who do not receive a total gross annual fixed remuneration of at least EUR 80,000 will be granted an additional economic emolument called “Supplementary Remuneration Payment” equal to the difference between their remuneration and up to the sum of EUR 80,000, divided into 13 monthly payments.
Finally, again from 1 January 2024, the following will no longer be paid: (a) on-call payments (Article 21); (b) remuneration for attendings meetings outside of working hours (Article 24) as well as the business travel allowance (Article 40).
Moving on to look at the changes to the regulations, the following are of particular interest:
With message no. 4027 of 18 November 2021, INPS published on its institutional website the following 19 November a clarification stating that the decree law no. 146 of 21 October 2021, fiscally linked to the 2022 Budget law, changed the regulations on protections envisaged during the Covid-19 healthcare emergency, inter alia, for quarantined workers. The legislation states that: classifying as an illness the period of time that a private sector worker passes in quarantine with active-monitoring or voluntary homestay with active monitoring is granted until “31 December 2021” based on a specific allocation. To date such classification has not been refinanced for 2022. This means that starting from 1 January 2022, unless there are any and future provisions, private sector workers who cannot perform their jobs using an agile procedure (because such procedure would be incompatible with the expected employment characteristics) and are forced to comply with a period of quarantine due to close contact with a confirmed Covid case would not have the right to compensation paid by INPS. The same INPS in its message explained that “benefits will continue to be granted to private worker jobs entitled to sick leave benefits, according to the normal procedures, even for events occurring in 2021, in chronological order, as required by law”.
Other related insights:
Court of Cassation, 1 March 2021, no. 5540
“Concerning the non-competition agreement entered into with an employee, the mere provision that the agreement is onerous excludes the extreme sanction of the agreement’s nullity may be applied if there is a financial imbalance of the services, unless there is an agreement of symbolic compensation or manifestly unfair or disproportionate to the employee’s sacrifice and loss of earning potential.”
The Court of Appeal of Milan, reforming the ruling of first instance,
It argued as follows: “the agreement in question is null and void because there is no determination or determinability of the remuneration paid to the employee considering the professional limitations imposed by the employer and because it is consequently impossible for the employee and the judge to ascertain its fairness with the professional sacrifice required.”
The local Court held that it was clear from a reading of the agreement clauses that no provision had been made for a minimum duration of the agreement or for the employee’s payment of a guaranteed minimum amount to be established in advance if there was an employment relationship termination.
The agreement was structured so that if there was an employment relationship early termination, the employee was not entitled to full compensation, i.e. €18,000 gross (€6,000 gross multiplied three years), but only the amount accrued during the year or part of it.
The remuneration amount was not established and could not even be determined based on objective parameters. Instead, it depended on a variable linked to the relationship duration, which led to an imbalance between the parties and an unbalanced contractual structure in the employer’s favour. This made the established remuneration incongruous and the agreement null.
The company appealed to the Court of Cassation against that ruling, claiming a strong contrast between opposing statements and objectively incomprehensible reasoning. The employee responded with a counter-appeal.
The Supreme Court found the employer’s complaint to be well-founded and, in support of its decision, made the following points.
The non-competition agreement is an autonomous form of negotiation (Court of Cassation, ruling no. 16489/2009) and nothing more than a contract for pecuniary interest and remuneration in return for which:
As an entirely autonomous agreement from the employment contract, the remuneration agreed upon must meet the general requirements of determination or determinability imposed by Art. 1346 of the Italian Civil Code for the service subject, under penalty of agreement nullity.
What are the interests underlying the agreement?
The purpose of the non-competition clause is to safeguard the entrepreneur from any “transfer to competing undertakings” of the company’s intangible assets and protect the employee. This prevents the clause from excessively restricting possibilities to direct work towards other more convenient occupations (most recently, Court of Cassation, ruling no. 9790/2020).
Continue reading the full version published in Guida al Lavoro of Il Sole 24 Ore.
As known, in our legal system the general principle of irreducibility of remuneration is applicable whereby the worker has the right to receive the remuneration agreed upon with the employer.
In this regard, the Court of Turin, with the ruling no. 440 of 18 February 2015 had stated that “The principle of irreducibility of remuneration, set forth by art. 2103 of the Italian Civil Code, implies that remuneration agreed upon at the time of hiring cannot be reduced even following an agreement between the employer and employee and any agreement to the contrary is null and void in any case where the agreed upon compensation including for an individual contract is reduced” and had further explained that “in case of lawful exercise, by the employer, of the “ius variandi”, the guarantee of irreducibility of remuneration extends to the sole remuneration of the essential intrinsic professional qualities of the previous duties, but not those remuneration components that are paid to compensate particular procedures of the job, and i.e. extrinsic characteristics not correlated with the proposed professional qualities of the same and, as such, susceptible to reduction once those extrinsic characteristics that were compensated cease to exist in the new duties”.
Continue to read the full version of the article (in Italian).
With its order 24139/2018, the Court of Cassation clarified that in order to render the office of a company’s director gratuitous rather than remunerated, a lack of requests for payment is not sufficient, as a specific clause indicating the gratuitous nature of the director’s services must be included in the contract or the company’s articles of association.
The Facts
This case began from a request for payment made by a director of a limited liability company, which was accepted in the first instance, but rejected on appeal.
In particular, the director had claimed remuneration for the period he was in office from 2001 to 2006. The Court of first instance had accepted the claim and recognised that remuneration was due. The Court of Appeal having jurisdiction for the action brought by the company had accepted the latter’s claims, finding that the lack of a claim for remuneration, whether while the director was in office or after termination, constituted a waiver due to conclusive facts.
The Court of Cassation dealing with the director’s appeal once again reversed the ruling and accepted the reasons put forth for the claim.
The ruling of the Court of Cassation
According to the Supreme Court the office of a director is presumed to be remunerated in accordance with Article 1709 of the Italian Civil Code, stating that: “The office is presumed to be against remuneration. If not determined by the parties, the amount of the remuneration shall be determined based on professional fees or practices; in the lack thereof, it shall be determined by the court.” By accepting the office, the director therefore acquires the right to receive remuneration and any failure to act, i.e. failure to claim the remuneration, while in office and upon termination, is not in and of itself sufficiently indicative of a tacit, valid and effective waiver pursuant to Article 1236 of the Italian Civil Code. This is because in this case no intention that was objectively incompatible with maintaining the right to be remunerated was detected. Finally, the Court underlines that, given the presumption of remuneration, the gratuitous nature of the office must be established expressly or through a specific provision in the company’s articles of association or a specific agreement to this end with the Director.
Conclusions
The director of a company is entitled to receive remuneration for his or her service, which is presumed to be provided against remuneration. This is notwithstanding any failure to act by the director. The gratuitous nature of the office can therefore only ensue from an ad hoc arrangement.
