Subcontracting, the general indication of peaks of intense activity is insufficient (Il Quotidiano del Lavoro de Il Sole 24 Ore, 2 December 2019 – Vittorio De Luca, Antonella Iacobellis)

The Court of Appeal, by order no. 28285 dated 4 November 2019, (i) established that, in order to resort to labour-only subcontracting, it is necessary that the factual elements in respect of which the court has the possibility of verifying the effectiveness of the grounds must be specified, given that the mere reference to “peaks of intense activity” and (ii) specified that the collective agreement can extend but not include prohibitions in addition to those stated in paragraph 5, Article 20, of Legislative Decree no. 276/2003. The legal case originates from an appeal filed by an employee at the Court of Pescara against the supplier company and the user company, so that the unlawfulness of the subcontracting agreement could be ascertained and, as a result, so that (i) the existence of a permanent employment contract with the user company and (ii) the ordering of the latter to pay the salaries accrued from the termination of the contract, or from the time of formal notice of termination, until the time of reinstatement, could also be ascertained. The regional Court of First Instance fully accepted the employee’s requests, acknowledging the existence of an employment contract with the user company, with the superior position – level B of the National Collective Bargaining Agreement applied, as technical assistant – and ordering the user company to pay both the remuneration differences and compensation proportional to 6 months’ worth of salary, calculated on the basis of Article 32, paragraph 5, of Law no. 183/2010. However, the Court of Appeal of L’Aquila reformed the first instance order, considering, inter alia, that – the reason for the employee’s employment contract was sufficiently specific; – the preliminary results confirmed the intensification of the activity during the reference period; – there had been no breach of the collective discipline, given that Legislative Decree no. 276/2003 did not require the collective employment contract to identify prohibitions in addition to those specified in Article 20 of said decree; – as provided for by Article 20, paragraph 4 of Legislative Decree no. 276/2003, the existence of ordinary replacement organisational, productive and technical reasons of the user to justify its use of subcontracting was sufficient, given that it is not necessarily required that the activity determined by the contract must be extraordinary and exceptional; – extensions based on the original reason for the subcontracting agreement were to be considered lawful. The employee filed an appeal with the Court of Appeal based on two reasons: the first with which he reported the breach and false application of Article 20, paragraph 4, of Article 21, paragraph 1, section c) and paragraph 4 of Article 27, paragraph 1, of Legislative Decree no. 276/2003 and the second with which he reported the breach and false application of the National Collective Bargaining Agreement applied, as supplemented by Memorandum of Understanding dated 26.07.2007. The Supreme Court accepted only the first ground of appeal, specifying that the reasons for which labour-only subcontracting is carried out must be explicitly stated in their factual nature, in order to make the need adopted by the user and the causal relationship between said user and the hiring of the individual subcontracted employee indisputable and evident.

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