Ministry of Labour circular no. 19 of 20 September 2022: new Transparency Decree clarifications

In addition to information already provided by the National Labour Inspectorate (circular no. 4 of 10 August 2022), the Ministry of Labour, with this circular, outlined the application of the new information requirements introduced by Legislative Decree no. 104 of 27 June 2022 “Transparency Decree”).

As already noted in National Labour Inspectorate Circular no. 4/2022, the employer must provide the worker with the basic information on individual provisions under the new Art. 1 of Legislative Decree 152/1997. For detailed information, they can refer to the collective agreement or company documents that must be delivered or made available to the worker under company practice.

According to the Ministry, the underlying basis of the reform is to broaden and strengthen the information obligations, but this must be set within the employment relationship, emphasising that the information obligation cannot “be considered fulfilled by abstractly referring to the legal provisions regulating the terms under information obligation. This must be done by providing information on the legal practical application of these measure on the parties’ relationship. This can be done by referring to the collective agreement applicable to the employment contract.”

As part of the new employer information obligations, the circular explained specific profiles, as follows.

Leave

For information on the “employee leave duration and other paid leave, (if this cannot be specified, the methods used to define and take leave)”, the Ministry clarified that:

• The employer must specify leave “duration.”
• “Leave”, means “paid leave”, so there is no communication obligation for unpaid leave.
• The obligation to provide information concerns those periods expressly qualified by the legislator as “leave”, such as: (i) maternity and paternity leave; (ii) parental leave; (iii) extraordinary leave for care of the disabled; (iv) leave for care of the disabled; (v) leave for women who are victims of gender violence.

Remuneration

The Ministry clarified the following for the obligation to inform the worker of “the initial remuneration or remuneration and its components, specifying the payment period and method.”

• This wording refers to remuneration components that are “objectively possible to determine at the time of hiring.”
• The employer “may not specify the amount of the variable remuneration components” but must specify the “criteria” used to calculate and pay these variable components to the employee.
• Company welfare or meal vouchers do not ordinarily form part of remuneration and are not subject to information obligations, unless they are provided for by collective bargaining or company practice as remuneration components.
• Scheduled working hours

The employer must inform on “ordinary working hours, overtime conditions and remuneration, and conditions for changing shifts, if the employment contract includes predictable working hours.”

The Ministry of Labour specified that:

• the information must concern, “not only the general legal regulation but references to the national collective and company agreements”;
• the information must focus on the “practical application of working hours” on the employee, “the methods and limits for overtime and related remuneration.”

Further information obligations if automated monitoring or decision-making systems are used

Art. 1-bis of Legislative Decree no. 152/1997, inserted by Article 4, letter b) of the Transparency Decree, requires employer additional information obligations if they use automated decision-making or monitoring systems.

In its circular, the Ministry of Labour clarified that the decree identifies two different mandatory information cases, if the employer uses automated decision-making or monitoring systems that:

1. implement a decision-making process which affect the employment relationship;
2. affect the monitoring, assessment, performance and fulfilment of workers’ contractual obligations.

The circular provides several examples for letter a) cases where the disclosure obligations under Art. 1 bis apply, namely:

• Recruitment or assignment using chatbots during the interview, automated profiling of candidates, CV screening, emotional recognition software and psycho-aptitude tests, etc;
• employment management or termination with automated assignment or revocation of tasks, duties or shifts, definition of working hours, productivity analysis, remuneration, promotions, etc., using statistical analysis, data analytics or machine learning tools, neural networks, deep learning, etc.

the provision under letter b), includes “guidelines impacting the monitoring, assessment, performance and fulfilment of workers’ contractual obligations.” According to the Ministry, the employer must inform the worker of such automated systems, such as: tablets, digital devices and wearables, GPS and geotracking, facial recognition, rating and ranking systems, etc.

Other related Insights:

• Transparency Decree: new obligations for the employer
• Transparency Decree, new employer obligations
• DID YOU KNOW THAT…The Transparency Decree outline been definitively approved by the Council of Ministers?
• Transparency and contracts, rules to avoid litigation