The National Employment Inspectorate (the ”NEI”), with note no. 1156 dated 22 December 2020, provided to the territorial inspectorates clarifications on the procedure to be followed in the event of a request to enter into a fixed-term contract in assisted form in accordance with Art. 19, paragraph 3 of Italian Legislative Decree 81/2015. This refers, in particular, to cases where derogations are made from the requirements envisaged by the legislation by virtue of a “proximity contract” lacking the requirement of greater representativeness.
The fixed-term contract may not have a total duration exceeding 24 months or the longer duration envisaged by the industry’s National Collective Labour Agreement, subject to the possibility, in accordance with Art. 19, paragraph 3 of Italian Legislative Decree 81/2015, of signing a further contract having a term of 12 months at the relevant Territorial Employment Inspectorate.
Art. 8 of Italian Decree Law 138/2011, converted into Italian Law 148/2011, states that collective agreements signed at company or territorial level by trade union associations comparatively most representative on a national basis may implement specific agreements with effect in relation to all workers involved. The agreements may concern the regulation of issues related to the organisation of work and production with reference, inter alia, to fixed-term contracts.
The note in question specifies that the Inspectorate’s activity must be limited to verifying (i) the completeness and formal correctness of the fixed-term contract, (ii) the genuineness of the worker’s consent and (iii) the signature of the same. However, if violations of the imperative rules are identified (e.g. lack of justifying causes), the recourse to the “assisted procedure” will not be admissible.
In the case submitted to the NEI, the derogation from the requirements envisaged by the legislation on fixed-term contracts derived from the regulation contained in proximity contracts signed in accordance with Art. 8 of Italian Decree Law 138/2011 (converted into Italian Law 148/2011).
In that regard, the NEI specifies that if the proximity contracts were signed in violation of Art. 8 – with particular reference to constraints of purpose, in addition to those imposed by the Constitution or, also, in relation to the requirement of greater comparative representativeness of the signatory organisations – they have no effect. Therefore, it will not be possible to enter into further fixed-term contracts according to the “assisted procedure” in application of these proximity contracts.
On the point, then, the NEI cited the indications provided with circular no. 3/2018 relating to circumstances of proximity agreements entered into by associations not having the requirements of representativeness required by Art. 8 of Italian Decree Law 138/2011.
In particular, with this circular, the NEI clarified that proximity contracts signed by entities “not authorised” may not produce effects of derogating from the provisions of law and regulations envisaged by the National Collective Labour Agreement. During the assessment, the inspectors must consider these contracts ineffective and adopt the consequent measures.
With reference to fixed-term contracts, in the same circular, the NEI stated that if the employer has applied rules dictated by a collective agreement not signed by the comparatively most representative organisations, the effects derogating or supplementing the regulatory rules cannot be applied. This, according to the NEI, involves the lack of application of the flexibility institutions envisaged by Italian Legislative Decree no. 81/2015 and, depending on the circumstances, also the “transformation” of the employment relationship into a permanent employment relationship.
Altri insights correlati:
INPS (the Italian Social Security Institution), with its message no. 4805 dated 22 December 2020, provided clarifications on the issuance of A1/E101 social security certificate for periods of employment in the United Kingdom, concluding after the end of the transition period, namely 31 December 2020.
In particular, INPS specified that requests to issue Form A1 for periods of employment with start date prior to 31 December 2020 and end date thereafter will be accepted and the respective portable A1 documents will be valid until the end of the certified period, if the same are received by 31 December 2020.
INPS has also clarified that requests to issue A1/E101 Forms, which have been rejected as they relate to periods commencing from 1 January 2021, will be automatically rectified by way of the issuance of new certificates for the entire requested period, provided that there is seamless continuity in the applicable legislation already certified by the A1/E101 forms. The regional INPS departments will be responsible for communicating to the social security institution present in the United Kingdom that a new A1/E101 form has been issued for rectification of the period.
Finally, INPS has clarified that E101 certificates dated after 31 December 2020 may also be issued, if the conditions are in place, for citizens of Third Countries, notwithstanding that, for secondments, the maximum limit of duration for the certified period is 12 months.
INPS, with its message no. 2797 of 14 July 2020 provided clarifications related to private and public workers, as well as NASPI (Italian unemployment) beneficiaries, who work for brief periods in Germany.
Specifically, for private employees, they first underlined that the applicable legislation, based on the provisions contained in article 13, paragraph 1 of the EC Regulation 883/2004, is that of the State of residence of the worker as long as substantial work is performed there. Moreover, for the purposes of determining the applicable legislation, marginal employment should not be considered, i.e. work that is not very significant in terms of time and remuneration.
The message in question clarifies that if the worker is employed in Italy and performs a job of a marginal nature in Germany or one that is not substantial, the applicable legislation is solely Italian with the consequent obligation for the worker to inform INPS of his employment situation. Failure to comply will result in forfeiture of recognition of the German insurance period if considered as marginal by INPS.
The fragmented and often cryptic regulatory framework of reference is creating long delays and operational difficulties in accessing the redundancy fund in derogation. Let us take stock.
Law provisions, ministerial decrees, circulars and framework agreements have regulated in a not always consistent way the concrete modalities of access to the redundancy fund in derogation in the context of the current epidemiological emergency and, in particular, in relation to the actual existence of an obligation of a company trade union agreement in order to be able to access wage supplementation.
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Source: Agendadigitale.eu
The territorially competent Court, by judgment No. 106/2019 published on 3 February 2020, stated that the existence of A1 certificates creates a presumption of regularity of contributions of the posted worker.
The facts
An Airline company whose registered office is outside Italy brought an action before the Italian National Social Security Institute (‘INPS’), as it received a single inspection report contesting the non-payment of social security contributions in Italy for 31 employees.
In particular, the INPS, recalling the principle of the lex loci laboris for which workers employed in the territory of a Member State must be subject to the legislation of that State, objected that:
The decision of the Court
The judge hearing the case upheld the Airline’s appeal, following the European case law produced by the same company, according to which: the existence of A1 certificates creates a presumption of regularity of contributions of the posted worker.
The Judge, in arguing their decision, proceeded to say that the INPS has no jurisdiction to rule on the whether or not the A1 certificates are valid.
According to the Judge, on the basis of European law, the only instrument recognised to the social security institution is the dialogue and conciliation procedure, according to which the aforementioned should have previously contacted the Authority of the foreign country to put it in a position to assess how correct the A1 forms issued were.
In the event of failure to reach agreement, the INPS should have referred the matter to the European Administrative Commission, which, in spite of the forms, has nevertheless charged the contribution omitted in Italy.
In view of the above, the Judge of first instance declared the claim brought by INPS unfounded, by offsetting the costs of the proceedings.
