In tenders, the obligation to specify the applicable collective agreement (Il Sole 24 Ore, 20 February 2025 – Vittorio De Luca, Alessandro Ferrari)

The Corrective Decree on Public Procurement (Legislative Decree No. 209/2024), which came into force on December 31, 2024, was introduced to provide greater protection for workers employed in outsourced activities, as well as to ensure increased transparency regarding their economic and contractual conditions.

The Corrective Decree amended and supplemented Legislative Decree No. 36/2023 (Public Contracts Code), establishing, among other things, the obligation for contracting authorities to specify, at all stages of the tendering procedures, the applicable national collective labor agreement for the personnel employed under the contract.

Similarly, it was established that in the case of contracts that include separable, secondary, ancillary, or subsidiary services, where such services differ from the main subject matter of the contract or concession and represent, for a threshold equal to or greater than 30%, the same homogeneous category of activity, the contracting authority must indicate in the tender documents “the national and territorial collective labor agreement in force for the sector and for the area where the work is to be performed, signed by the most representative employers’ and workers’ associations at the national level, applicable to the personnel engaged in such services.”

Also of significance is the amendment to Article 11, paragraph 4, of the Code, which clarifies that the verification of the declaration of equivalence of protections relating to the personnel employed in the contract, submitted by the economic operator, must be carried out in accordance with the procedures set out in Article 110 of the Code and in line with the new provisions of Annex I.01. Equally relevant is the amendment to Article 119, paragraph 12, which provides that in the case of subcontracting, “the subcontractor… is required to apply the same collective labor agreement as the main contractor, or a different agreement, provided that it guarantees employees the same economic and regulatory protections as the one applied by the main contractor, where the subcontracted activities coincide with those that characterize the subject matter of the contract or concern the services falling under the prevailing category.”

In practice, according to Annex I.01, agreements signed by the same trade unions (that are comparatively more representative), even if concluded with different employers’ associations from those that signed the collective agreement indicated by the contracting authority, are presumed to be equivalent. However, this presumption of equivalence applies only insofar as the collective agreement pertains to the same sub-sector and is “corresponding to the size or legal nature of the undertaking.”

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