With this circular the Italian Ministry of Labour provided its first guidelines on the most significant new initiatives introduced by Italian Decree-Law no. 48 of 2023, converted into law with amendments by Italian Law no. 85 of 3 July 2023, on fixed-term contracts.
From among these, the most significant clarification provided by the Ministry concerns the provision referred to in Article 24, paragraph 1-ter of Italian Decree-Law no. 48/2023, added when converting it into law, which provides that “For the purpose of calculating the 12-month period provided for in Article 19, paragraph 1, and Article 21, paragraph 1, of [Italian] Legislative Decree no. 81 of 2015 […], only contracts already entered into on the date of entry into force of this decree are taken into account” (Editor’s note: 5 May 2023).
In this regard, the Ministry has clarified that, under above provision, any fixed-term employment relationships between the same parties under contracts entered into before 5 May 2023 do not count towards the 12-month period within which the use of fixed-term employment contracts is permitted without restriction.
From 5 May 2023, employers will therefore be able to use fixed-term employment contracts for an additional period (maximum) of 12 months, regardless of any relationships already existing between the same employer and the same worker under contracts entered into before 5 May 2023, without prejudice to the maximum duration of fixed-term contracts provided for by law or national collective bargaining.
For example, the Ministry has clarified that, if after 5 May 2023, a fixed-term employment contract entered into before that date expires, that contract may be renewed or extended “without restriction” for a further 12 months.
Otherwise, again by way of example, if in the period between 5 May 2023 and 4 July 2023 – the date of entry into force of paragraph 1-ter – the parties have already renewed or extended a fixed-term employment relationship for six months, they may enter into a fixed-term contract for a further period not exceeding six months “without conditions”.
It is therefore the time when the employment contract was entered into – before or after 5 May 2023 – that must be referred to for application of this provision.
In this regard, the Ministry continued, the expression “entered into” used in Article 24, paragraph 1-ter must be considered to refer both to the renewals of previous fixed-term employment contracts and to the extensions of existing contracts.
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Decree of the Italian President of the Council of Ministers (‘Decree’) of 6 July 2023 set out the guidelines for planning entry flows of foreign workers for the three-year period 2023-2025.
The Decree provides the criteria for determining new entry flows, setting a three-year quota of a total of 452,000 admissions for employees (both seasonal and not seasonal) and self-employed foreigners residing abroad. Of these, 136,000 are planned for 2023, 151,000 for 2024 and 165,000 for 2025. In addition, there is a three-year quota of 28,500 admissions for domestic workers and carers (9,500 for each year).
In addition, the Decree also establishes the deadlines for submitting applications for authorisations relating to the new quotas.
Under the Decree employers must conduct a search for personnel in Italy before making an application for authorisation for non-EU citizens. The definition of “unavailability of a worker within Italy” and the related reasons will be the subject of a ministerial circular that will be issued by the Italian Ministries of Labour, Tourism, Interior, Foreign Affairs and Agriculture. In any event, the employer will have to self-certify, by means of a declaration in lieu of affidavit, the reason justifying the unavailability of a worker already present in Italy to hold the same position.
As soon as the Decree is published in the Italian Official Gazette, it will be possible to identify the deadlines for submitting applications for authorisations under the new quotas for 2023.
De Luca & Partners signed off on the Italian pages of the Employment & Labour Law guide, 2023 edition published by English publisher Global Legal Insights. The volume gathers information and analysis on employment trends, changes in the legislative framework, relevant rulings, and reforms in progress and under discussion in 18 countries. Aimed at General Counsel, HR professionals, lawyers, advisors and managers who wish to have a series of useful global snapshots on relevant labour law issues, the Employment & Labour Law guide is now online.
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On 4 May 2023, Italian Decree Law No 48/2023 (the ‘Employment Decree’ (‘Decreto Lavoro’)) containing ‘Urgent measures for social inclusion and access to the workplace’ was published in the Italian Official Gazette.
The Decree introduced important initiatives on employment law, social security and social assistance, with effect from 5 May 2023.
One of the main initiatives in the employment law field are changes to the permitted reasons for fixed-term employment contracts, with a strengthening of the role of collective bargaining.
The permitted reasons justifying a fixed-term contract of between 12 and 24 months, the extension for more than 12 months, or the renewal of a fixed-term contract are exclusively those provided for by the collective agreements concluded by the associations comparatively more representative at national level, or in the absence of such provisions and until 30 April 2024, the individual parties, for technical, organisational and production needs.
The Decree also simplifies the employer’s information obligations introduced by the ‘Transparency Decree’.
In contrast to the past, some of the information that the employer was required to provide in the employment contract or in a specific information notice can now be provided to employees simply by referring to the relevant legislation or collective bargaining agreement, which may also be the company’s bargaining agreement, applied to the employment relationship. This information relates to, for example, probationary period duration, training, paid holidays and leave, notice of dismissal and resignation, salary components, working hours, overtime, social security and insurance institutions.
To simplify the obligation, and to ensure uniformity in the employer’s communications, the employer will be required to deliver or make available to staff, including through publication on the website, national, regional and company collective bargaining agreements, as well as any company regulations applicable to the employment relationship.
The employer’s information obligations on the use of automated decision-making and monitoring systems have also been reduced, thus further simplifying these information obligations.
Further measures introduced by the Decree concern:
The Decree also provided a series of measures relating to social security and assistance, aimed above all at supporting youth employment, promoting the permanent integration into the labour market of beneficiaries of the Inclusion Allowance and reducing the ‘tax wedge’ (cuneo fiscale).
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Transparency Decree: new obligations for the employer
With Order No 7029, of 9 March 2023, the Italian Court of Cassation, reversing the conclusions reached by the Court of Appeal of Bologna, deemed legitimate since justified by a just cause the dismissal of a worker who, derisorily, had turned against a colleague telling her in dialectal form ‘but why did you get pregnant too?’, ‘but why aren’t you a lesbian’, ‘and how did you get pregnant?’.
The facts of the case
The situation in question had occurred at a bus stop, where the colleague was waiting to take up service as a driver, in the presence of other people, while both the fired worker and the person they spoke to were in uniform and therefore recognizable as employees of the company employer.
The employee, fired by the company, challenged the dismissal and obtained, on appeal, partial acceptance of his appeal. Specifically, the appeal judges believed that the episode contested against the employee, albeit undisputed from a factual point of view, should be relegated to ‘substantially uncivilized’ conduct punishable at the most with a conservative sanction (suspension from pay and service) .
The order of the Italian Court of Cassation
The Italian Court of Cassation, in overturning the decision of the appeal judges, reiterates that, according to established jurisprudence, the ‘just cause’ of dismissal pursuanttoArticle 2119 of the Italian Civil Code integrates a general clause, which requires to be actualised by the interpreter through appreciation of external factors relating to the general awareness and the principles tacitly referred to by the law, therefore through declinations that have a legal nature and whose non-application can be deduced before the Italian Court of Cassation as a violation of the law.
According to the Judges of the Court of Cassation, the assessment made by the trial judge in attributing the disputed conduct of the employee to mere “uncivilised” behaviour would not conform to the values present in the social context and to the principles of the legal system, referring, in fact, to a behaviour contrary only to the rules of good manners and the formal aspects of civil life, where the content of the expressions used and the further factual circumstances in which the behaviour of the employee must be contextualized are instead in contrast with much more meaningful values now rooted in the general awareness and are expression of general principles of the legal system (Articles 2, 3, 4 and 35 of the Italian Constitution).
General principles which, the Court continues, find precise declination in the legal system through the provision of anti-discrimination regulations in various ways aimed at preventing or repressing forms of discrimination linked to gender, among which Italian Legislative Decree no. 198/2006 (Italian Code of equal opportunities between men and women) whose Article 26, first paragraph, also identifies harassment as discrimination, namely those unwanted behaviours, carried out for reasons connected to gender, with the purpose or effect of violate the dignity of a female or male worker or create an intimidating, hostile, degrading, humiliating or offensive environment.
In the light of the above considerations, the Court quashed the decision of the Court of Appeal for the review of the overall case in order to verify the existence of just cause for the dismissal notified to the concerned worker in the light of the correct reference value scale reconstructed by the Court itself in the order in question.
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