Within the scope of private-law agreements, the principle of ensuring equality of pay and/or of classification to all employees fulfilling the same duties does not exist

With judgment dated 17 July 2020, the Court of Florence has ruled that “article 36 of the Constitution limits itself to establish the principle of sufficiency and adequacy of the pay, regardless of any intersubjective comparison and that article 3 of the Constitution imposes the equality of citizens vis-à-vis the law and not also in any relations between private persons”.

Facts of the case

Some temporary workers seized the Court of first instance against the agency and the client company. In her own claim, one of the claimants – in the case at issue, a female employee hired by the agency under a fixed-term employment agreement – claimed, amongst others, to have worked for the agency’s client from 22 June 2015 until the following 30 September, being classified as follows: level VI of the Collective Bargaining Agreement for Armed Private Security Services (hereinafter, the “CCNL”), with a full-time timetable and vault clerical duties.

Having stated the above, the claimant inferred her right to be classified at level IV of the CCNL instead of at level VI formally assigned to her, thus requesting the agency’s client be ordered, jointly and severally with the agency, to pay the relevant differences in the pay, as per the calculations attached to the claim.

The agency and its client appeared before the court with standalone statements of defence, by challenging the claimants’ claims and by requesting that the latter be rejected, since groundless; by being awarded the costs for the legal proceedings.

In particular, the agency claimed:

• the lack of capacity to be sued, since it was under no obligation whatsoever to inquire the level of classification of temporary workers and
• notified the tardiness of the lodging of the document concerning the calculations.

The case was prepared for trial based on the documentation produced by way of disclosure, since the Judge had rejected the further preliminary motions brought by the parties and the relevant judgment was handed down pursuant to article 83 of Law by Decree No. 18/2020, turned into Law No. 27/2020, after having granted the parties with the double term for lodging notes and replies.

The Court’s decision

In the case at issue, the Judge seized held that the development of “vault clerical” duties (that is clerks assigned to activities related to the counting and dealing with money, included in the examples under article 31 CCNL) had not been specifically challenged (in any event, this circumstance is proven documentarily).  In so far as the above-mentioned activity is concerned, the CCNL foresees the classification within level VI for the first 24 months of actual employment and, subsequently, the employee’s right to automatically pass to level V and to level IV, once the term specifically mentioned under the aforesaid article 31 has elapsed.

Consequently, in the Judge’s opinion, the claimant’s initial classification within level VI for carrying out the activity related to counting money is right since, moreover, she had not accrued the necessary seniority of employment for automatically passing to level V and to level IV.

Again, in the Judge’s opinion, it is not important that level IV had been granted to the other claimant at the moment of hiring since “pursuant to a firm and shareable stance of the case law of the Court of Cassation, in our legal system, there is no principle whatsoever imposing an employer, within the scope of the relevant private law agreements, to ensureequality of pay and/or of classification to all employees fulfilling the same duties, since article 36 of the Constitution limits itself to establish the principle of sufficiency and adequacy of the pay, setting aside any intersubjective comparison and that article 3 of the Constitution imposes the equality of all citizens in front of the law and not also in any relations between private persons; therefore, the mere circumstance (lacking any further specification whatsoever) that certain duties had been entrusted beforehand to employees to whom the employer used to grant a higher status is totally irrelevant for the employee, with a different and lower status, to whom the same duties have been entrusted (cf. Court of Cassation L Division, Judgment No. 16015 of 19/07/2007 0, Rv. 598373 – 01)”.

From another standpoint, in the Judge’s opinion, it is not even possible to claim the breach of article 36 of the Constitution, since

•          the applicable Collective Bargaining Agreement (and, in particular, that applied by the employee)

•          and the relevant minimum pay

amount to the criterion to be taken into consideration in view of the judgment on the adequacy and sufficiency of the pay, pursuant to the article appealed to (since, in the case in point and also upon the claimant’s – vague – allegations, the breach of the principle of proportionality in connection with the quality and the quantity of the work done does not apply).

Upon the foregoing, the Judge of first instance fully rejected any claim under the writ of summons by ordering the claimant to pay the costs for the proceedings.

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