Did you know that… an individual allowance that has remained unchanged for years may become non-absorbable?

In judgment no. 24475 of 5 August 2026, the Employment Section of the Italian Supreme Court confirmed that an individual allowance (i.e. “superminimo”), although normally subject to the principle of absorption into subsequent salary increases arising from collective bargaining, may be considered non-absorbable where the parties’ conduct makes it possible to ascertain a different contractual intention. In particular, the Supreme Court upheld the lower court’s decision, which had inferred the non-absorbability of the individual allowance from the fact that it had remained unchanged for many years despite the numerous collective bargaining renewals that had taken place during the employment relationship.

In the case at hand, an employee challenged the deductions made by the company from February 2018 onwards following the absorption of the individual allowance from which he benefited. By partially reforming the first-instance judgment, the Naples Court of Appeal declared the individual allowance paid as of January 2018 to be non-absorbable and ordered the company to repay the sums that had been deducted.

The lower courts attached significance to a circumstance that was deemed undisputed between the parties, namely that the individual allowance had remained unchanged over time “despite the salary increases granted during the employment relationship on the occasion of the numerous collective bargaining renewals that had taken place”. Such conduct was held to be capable of revealing a contractual intention incompatible with the rule of absorption.

The company appealed to the Supreme Court, arguing that the Court of Appeal had incorrectly construed the parties’ intention as excluding the absorbability of the individual allowance.

The Supreme Court, however, dismissed the appeal, reiterating that the interpretation of a contract cannot stop at its literal wording but must also take into account extrinsic elements and, in particular, the overall conduct of the parties throughout the employment relationship.

The Supreme Court Justices recalled that Article 1362 of the Italian Civil Code requires the identification of the “common intention of the parties” and that, for this purpose, conduct subsequent to the conclusion of the agreement must also be taken into consideration. Precisely on the basis of this principle, the Court held that the Court of Appeal had correctly attributed significance to the employer’s conduct over time, consisting in not absorbing the individual allowance upon the repeated salary increases resulting from renewals of the collective bargaining agreement.

The Supreme Court also referred to its settled case law according to which an individual allowance namely the portion of remuneration individually granted in excess of the contractual minimum salary levels, is normally absorbable by subsequent economic improvements provided for under collective bargaining, unless the collective agreement provides otherwise or the parties have attributed a specific autonomous function to that remuneration item.

In the judgment under review, however, the Court reiterated that ascertaining the parties’ contractual intention and assessing whether there has been an effective derogation from the general rule of absorption constitute findings of fact reserved to the lower courts and are not subject to review by the Supreme Court where supported by logical and consistent reasoning.

In conclusion, the judgment confirms that the non-absorbability of an individual allowance may be inferred not only from express contractual provisions, but also from the conduct actually adopted by the parties throughout the employment relationship. In particular, maintaining the individual allowance unchanged for a long period of time, despite salary increases granted under collective bargaining agreements, may be regarded as conclusive conduct capable of demonstrating the intention to exclude its absorption.