On 16 June 2021, Confcommercio Imprese per l’Italia and Manageritalia signed an agreement to extend the NCLA of 21 July 2016 until 31 December 2021. With the same agreement, the Social Partners have amended some Agreement provisions. The main changes include the maximum duration of the protected period, which is confirmed as 240 days in a calendar year, clarifying that “calendar year” means 365 days backwards from the last illness. In addition, from July 1th , 2021, the employer shall pay to an organisation called CFMT (Centro di Formazione Management del Terziario – Tertiary Management Training Centre), , a contribution of €2500 – if there is an employment relationship termination, including following a settlement agreement or conciliation, except in the case of termination for just cause, disciplinary dismissal, voluntary resignation and consensual termination – for the activation of an outplacement service or for access to active policy programmes aimed at outplacement of executives. New concepts are introduced about the notice period commencement in case ofresignation or dismissal. The notice period for dismissal, from 1 July 2021 shall commence on the 1st or 16th day of each month, depending on whether the employer receives the resignation notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. Effective from 1 July 2021, the notice period for dismissal shall run from the 1st or 16th day of each month, depending on whether the executive receives the dismissal notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. The executive shall be entitled to receive their full remuneration for the portion of the month in which the dismissal notice was received.
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On 12 April 2021, the Palermo Court ruled that early withdrawal by a food delivery company from a fixed term cooperation agreement with a rider was invalid, as it was the direct consequence of his refusal to accept the governing conditions of the collective agreement chosen by the company and signed by trade unions he had not joined. Citing supreme court case law on subjective effectiveness of collective agreements, the Court observed that under our industrial relations system a worker is not required to passively accept an unsatisfactory union agreement. The Court held that the company could only exercise early withdrawal in fairness and good faith, principles that were not observed as the termination was not “needed” and the non-continuation of the relationship evidently constituted “discrimination on trade union grounds”. The company was ordered to reinstate the worker at the same contractual conditions, pay the wages he would have received from unlawful termination to effective reinstatement and compensate non-material damage.
Under order no. 27757, published 3/12/2020, the Cassation Court confirmed that renewal of a National Collective Bargaining Agreement (CCNL) only signed by some employer associations, has no effect on application of clauses regarding pay even for companies that belong to non-signatory unions. In detail, a worker obtained an order for payment, part for failure to pay contractual increases in the sector CCNL and part due to the contractual increases in the renewed CCNL. The order was upheld in the first instance, while in the second it was revoked and the company sentenced to pay the difference between the amount of the order and the sum it paid to the worker as a one off for the settlement reached between the workers’ union and employers’ unions that had not initially signed the renewal. According to the Court, appealed to by the employer, in employment the remuneration under the CCNL acquires, as a general rule, a “presumption” of meeting the principle of proportionality and adequacy in the contract economic provisions including in internal relationship between the single compensations established therein.
The Supreme Court of Cassation, by Order no. 27422 dated 1 December 2020, established that the clauses of the national collective agreement stating that workers are required to respect not only the provisions contained therein but also those established in internal regulations does not automatically bind employees to the compensation obligation envisaged therein in the event of a violation of its provisions.
In this case, a company had made a withholding from an employee’s pay packet in relation to reckless safekeeping of property after 56 tickets were taken from the same after a bag was stolen. This was done by virtue of a provision contained in an internal circular, previously communicated to employees, according to which they were obliged to compensate a certain amount in the event that tickets were stolen. In the company’s opinion, the provision was immediately applicable precisely by virtue of the reference made by the industry’s National Collective Labour Agreement to internal regulations, with which employees were required to comply. The Supreme Court of Cassation was not of the same opinion.
According to the Supreme Court, the indication of compensable damage in a circular or in an internal regulation for the violation of one of its provisions equates to a penalty clause which, as such, only binds employees in the face of their express acceptance.
In the opinion of the Supreme Court of Cassation, the penalty clause is a means of enforcing specific contractual obligations and constitutes an “agreed early settlement” of the damage deriving from their violation. The penalty clause presupposes, by its characteristics, a meeting of wills which the parties formalise in a deed, in the absence of which its application cannot be enforced. The establishment of the penalty does not fall among the employer’s unilateral powers, as its specific negotiation and formal approval are its irreplaceable presuppositions.
Therefore, regulations, circulars and service orders that envisage an obligation to compensate a certain amount, in order to be binding, may not simply be communicated or affixed to the company notice board. A deed of acceptance and adhesion from each individual worker is required.
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Following what was announced to the social partners at the meeting held on 18 November 2020, the Ministry of Labour issued the following 19 November Circular no. 17 explaining the regulations governing digital platforms’ delivery cyclists (riders).
The Ministry outlined the essential features of Legislative Decree of 15 June 2015, no. 81, as amended and integrated by Law no. 128 of 2 November 2019, converting Legislative Decree no. 101/2019. The introduction specified that this legislation was addressed to two different groups of delivery persons: those who work with digital platforms based on a continuous and coordinated service contract and those who were self-employed.
For those with a continuous and coordinated service contract, the circular clarified that the existence of elements attesting to the delivery person work organisation based on multiple factors make the mechanism referred to art. 2 of Legislative Decree 81/2015 (as interpreted by the Court of Cassation’s ruling 1663/2020) applicable. This means employment rules apply to this type of work. This does not apply if there are collective agreements entered into by trade unions that are comparatively more representative nationally and, due to the relevant sector’s special production and organisational needs, provide compensation and contract terms rules.
For the self-employed category, the circular stated that, in the absence of the requirements set out in art. 2 of Legislative Decree 81/2015, delivery persons must be guaranteed the minimum levels of protection laid down in Chapter V bis of Legislative Decree no. 81/2015.
Among these, article 47 quater, first paragraph, gives collective agreements the right to define criteria for determining the overall remuneration, which consider the way the service is performed and the customer’s organisation. The second paragraph stated that in the absence of such contracts, riders may not be remunerated based on the deliveries made, and they must be guaranteed a minimum hourly remuneration based on the minimum wage. This minimum wage must be established by national collective agreements of similar or equivalent sectors, signed by the trade unions and employers’ organisations that are nationally comparatively more representative. The third paragraph stated that these workers must be guaranteed a supplementary indemnity of not less than 10 per cent for work carried out at night, during holidays or in unfavourable weather conditions, determined by collective agreements, or, failing this, by decree of the Minister of Labour and social policies.
Under Legislative Decree 81/2015, the Ministry clarified that the collective bargaining agreements which overrule laws, in article 2 and article 47 quater, are those negotiated by trade unions that are nationally comparatively more representative.
To confirm the greater representation requirement, according to the Ministry, reference must be made to: (i) the traditional indicators defined by case law (i.e. the Trade Union’s membership, a significant national presence, participation in self-defence actions, formation and stipulation of collective bargaining agreements, and involvement in individual, multiple and collective disputes); (ii) the participation of negotiating agents in the permanent observatory established by art. 47 octies of Legislative Decree 81/2015: (iii) the signatories of the national collective bargaining agreement for the broader sector, within which, due to special production and organisational needs, requires compensation and contract terms for certain categories of workers.
If the conditions described above are not met, in the Ministry’s opinion, the collective agreement is unsuitable to derogate from legal provisions. In this case the provisions of article 2, first paragraph, or article 47 quater, second paragraph, of Legislative Decree 81/2015.
This framework, considering the recent development of the food delivery market and labour law developments, includes the experimental protocol signed on 6 November 2020, by Assodelivery and CGIL, CISL and UIL at the Prefecture of Milan.
This protocol aims at respecting the legality and the rights of workers in the sector to provide a valid contrast to labour exploitation. The Assodelivery member companies undertake to
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