On Sunday, June 8 and Monday, June 9, referendum voting is taking place, and important space is given to labor questions.
ItaliaOggi heard from four different law firms to understand what would change, from a practical point of view, if either the yes or the no vote wins.
“Exclusion of joint and several liability of the principal, contractor, and subcontractor for injuries sustained by the employee of contracting or subcontracting company as a consequence of the specific risks peculiar to the activities of contracting or subcontracting companies: Repeal.
The fourth question, which is related to occupational safety, seeks to extend the liability of the contracting company to injuries that are a consequence of the specific risks associated with the activities of contractors and subcontractors.
What changes? Lawyer Vittorio De Luca, managing partner De Luca & Partners, answers.
For workers
In the case of injuries and accidents suffered by a worker employed by the contractor, liability will always be joint and several, i.e., both in the hands of the client company and the company to which the work was contracted, with no exceptions.
Continue here to read the full version of the interview published in ItaliaOggi.
On December 12, 2024, the Court of Cassation admitted the referendum requests filed in July by the CGIL concerning, among other things, the regulation of unlawful dismissals under the so-called the so-called increasing protection employment contract (“contratto a tutele crescenti” in Italian parlance) under Legislative Decree No. 23/2015.
This system has always interested public opinion and political debate, and still represents a point of fracture between the social partners. Suffice it to say that while, last September 8, 2024, at the first public meeting between CGIL leader Maurizio Landini and Confindustria president Emanuele Orsini, the latter confirmed that “overcoming the Jobs Act would be a plunge into the past, we have a gap between labor supply and demand that is worth 43 billion a year. For us today the issue is attracting people, not overcoming a measure that is working,” on the other hand, the CGIL leader said that with the Court of Cassation’s green light to the referendum questions “a great opportunity opens up for the Country.”
Given the persistent gap between the positions of the social partners and the strong impact that the “contratto a tutele crescenti” has on public opinion (proof of this is, most recently, the achievement of the referendum quorum), it seems useful to assess whether, from a mere technical/legal point of view, the legislation set forth in Legislative Decree No. 23/2015 currently presents substantial differences from the protection offered by Article 18, of the Workers’ Statute, as amended by Law No. 92/2012, such as to make its repeal – in the opinion of the referendum supporters – indispensable with a view to expanding the scope of applicability of reintegration protection.
In its original formulation, the legislature’s intervention was characterized by the automatic determination of the compensation due in cases of wrongful dismissal, based on a mathematical formula, to overcome a system hinging on the discretion of the judge.
Continue reading the full version published in Il Sole 24 Ore.
Six years ago, on 7 March 2015, the Jobs Act came into force, providing innovative protection if there is an unlawful dismissal for new employees under permanent contracts. At the time, this measure was considered revolutionary for the principles governing the existing protections. It intended to regulate the consequences of unlawful dismissal automatically and based on a mathematical formula. It was an ambitious project of overcoming the uncertainties of a system that had hinged on the judge’s discretion.
Based on the new rules, the scope of the debated right to reinstatement was redefined for companies with more than 15 employees. This was relegated to a residual hypothesis applicable only to the most severe cases (lack of evidence against the employee, or discriminatory dismissal or otherwise radically null and void). It gave way to compensation protection, from a minimum of four to a maximum of 24 monthly salary, which was rather low for the applicable criteria, especially in the first years of service.
At least in its intentions, the reform should have encouraged new employment and reduced the regulatory obstacles to attracting Italy’s investment.
A few years later, however, it can be said with a degree of certainty that the increasing protection had a short and troubled life.
The real economy, which is the engine of all employment development and growth forms, has not seen the hoped-for trend. It had to face the pandemic, which was unimaginable in 2015, making it impossible to see the expansive impact of increasing protection from an employment point of view over time. Regulatory measures by successive governments and, soon after by the Constitutional Court, were not long in coming, and they distorted the reform’s features, leaving little of what was initially envisaged.
The first blow to the increasing protections system was dealt with by the Dignity Decree (Decree Law no. 87/2018), which, without changing the formula for calculating the compensation due based on two months salary for each year of service, increased the compensation range from six to 36 monthly salary.
With surprising timing, a few days later, the Constitutional Court, no. 194/2018, declared the legislation unconstitutional insofar as it provided for a “rigid and automatic criterion, based on length of service” to identify the compensation due to an employee unjustly dismissed. In the Court’s view, the protection against damages required a quantification based on multiple factors (such as the parties’ behaviour and “conditions”) to be assessed at the judge’s discretion in adequately valuating compensation for the prejudice suffered by the worker.
In the space of a few weeks, the system designed to overcome discretion once again became centred on it.
Continue reading the full version published in Norme & Tributi Plus Diritto de Il Sole 24 Ore.
The Court of Justice of the European Union (CJEU), with its ruling of 17 March 2021 (case C-652/2019), decided on prejudicial issues raised by the Court of Milan on 5 August 2019 on the legitimacy of the collective dismissal provisions contained in the Jobs Act.
The case regards an employee hired with a fixed term contract before the Jobs Acts became effective, changed to open-ended at the end of March 2015 and then dismissed in 2017 in a collective dismissal procedure.
The employees involved in the procedure in question, including the employee, petitioned the Court of Milan which declared the challenged dismissals as unlawful, due to violation of the selection criteria. The Court granted the worker – unlike her colleagues who had been reinstated because hired with open-ended contract before the enactment of Legislative Decree no. 23/20215 (so-called Jobs Act), i.e. before 7 March 2015 – only the indemnity protection.
The Court, noting the existence of two different disciplinary systems in the event of unlawful collective dismissal resulting from the introduction the seniority-based protection contract, asked the Court of Strasbourg if a similar treatment difference was against European Union Law.
The Court of Justice recognised the conformity of Legislative Decree no. 23/2015 with European Union law, clarifying that a regime that has only one indemnity (and not also reinstatement) is not discriminatory for the worker hired with fixed-term contract before 7 March 2015 and becoming permanent afterwards. This is because the different treatment is justified by the fact that the workers involved in the seniority-based protection obtain, in exchange for a regime with less protection, a form of employment stability.
According to the Court of Strasbourg it is a type of incentive aimed at fostering the conversion of fixed-term contracts into open contracts which constitutes a legitimate objective of social and employment policy, the selection of which is fully within the discretion granted to Member States.
According to the Court of Strasbourg this consideration is in line with a decision made by the Court in 2018, which, involving basically the same issue, had considered it legitimate that the remedial legislation could be differentiated based on the hiring date.
Other related insights:
Budget Law 2021 covers a wide range of measures in labour, taxation, liquidity support areas and business development and, in 1,150 paragraphs, outlines the financial manoeuvre rules.
Art. 1, paragraph 279, of Law 30 December 2020, no. 178, extended until 31 March 2021 the possibility of extending or renewing fixed-term contracts by repealing the strict and controversial obligation to include reasons introduced in the fixed-term contracts’ general regulations by Legislative Decree no. 81/2015 ( Jobs Act), as amended by the Dignity Decree (Decree Law 87/18 as converted by Law 96/18).
This important exception, which provides newfound flexibility in the use of fixed-term contracts, was first introduced by the Relaunch Decree until 31 August 2020, extended until 31 December 2020 and further extended until next spring by the Budget Law. This “favourable” extension or renewal is allowed only once and for a maximum of 12 months, within the maximum duration limit of fixed-term employment contracts of 24 months.
Continue reading the full version published in Guida al Lavoro of Il Sole 24 Ore.