Transparency Decree changes “exclusivity clause” (Il Sole 24 Ore and Il Quotidiano del Lavoro of Il Sole 24 Ore, 1 August 2022 – Vittorio De Luca, Claudia Cerbone)

Chapter III of Legislative Decree 104/2022, implementing the European Transparency Directive 2019/1152, published in the “Official Gazette” 176 of 29 July and in force since 13 August, identified the minimum working conditions requirements. The first provision related to the probationary period maximum duration (Article 7), emphasises certain case law existing principles. The probationary period may not exceed six months unless the collective agreement applied to the relationship requires a shorter duration. The probationary period in fixed-term contracts must be proportionate to the contract duration, and the tasks assigned based on the employment type. If there is a contract renewal for the same tasks, a new probationary period may not be imposed.

If there are suspensions (such as illness, accident and compulsory leave), the probationary period duration is extended to a time equal to the employee’s absence.

One of the decree changes refers to the combination of jobs (Article 8), i.e., the better known “exclusivity clause” which entitled the employer to prohibit the employee from carrying out a different profession. For the first time, the decree forbids the employer (and the principal) from preventing the employee from carrying out another job outside the agreed working hours or treat them unfavourably for that reason. Exceptions can be applied if the second job is detrimental to the worker’s health and safety (including compliance with rest regulations) or does not guarantee the integrity of the public service or is in conflict of interest with the main job (but not in breach of the loyalty duty).

Another change concerns the minimum predictability of work (Article 9). The employer may not require the employee to perform work if working hours are not predetermined. The employee has the right to refuse to work, without suffering any prejudice, including disciplinary action.

Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.