The National Employment Inspectorate (”INL”), with note no. 9550 of 6 September 2022 set the new provisions of Legislative Decree no. 105 of 30 June 2022, (the “Decree“) on leave and time off and other measures for the protection of caregivers.
The Decree, also known as the “Work-Life Balance Decree” entered into force on 13 August 2022, implemented Directive (EU) no. 2019/1158 of the European Parliament and Council on the work-life balance for parents and caregivers.
The INL note summarises the main changes introduced by the Decree for the individual measures.
Compared to the previous regulations, the Decree introduced Art. 27-bis of Legislative Decree no. 151, of 26 March 2001 ( Consolidated Law supporting maternity and paternity – “TU”), on compulsory paternity leave. It established that the working father (including adoptive or foster) must abstain from work for ten working days, not divisible into hours from the two months preceding the presumed date of birth and within the following five months, and can be used on a non-continuous basis.
The leave is doubled to 20 days for multiple births.
This leave is in addition to the alternative paternity leave, governed by art. 28 of the Consolidated Law, to which the father is entitled in the event of the mother death, serious infirmity or abandonment, and when there is the father exclusive custody of the child, as an alternative to maternity leave.
The leave entitles the father to a daily allowance equal to their entire salary.
The INL note stated that during the paternity leave (mandatory and alternative) the working father cannot be dismissed, for the leave duration and until the child is one year old. In resignation cases, during the period when dismissal is prohibited, the father who has taken paternity leave is entitled to the allowances under the law and contractual provisions for dismissal (such as notice allowance and NASPI) and is not required to give notice.
The Decree amended paragraph 1 of Art. 34 of the Consolidated Law and established that until the twelfth year (and not the sixth) of the child’s life (or from the child’s entry into the family for adoption or fostering cases), the mother and father are entitled to a compensable period of three months, non-transferable to the other parent.
Both parents are individually entitled to a further indemnifiable period of three months, for a maximum indemnifiable period taken collectively of nine months (and not six).
The INL note stated that the parents’ maximum limits under Art. 32 of the Consolidated Law were unchanged.
The single parent (including those having sole custody) is granted 11 months (and not ten) of continuous or non-continuous parental leave, of which nine months (and not six) can be compensated at 30 per cent of the salary. In sole custody cases, the other parent loses the right to the unused leave.
INL stated that, if the parental leave is used continuously, this includes any public holidays. This applies to non-continuous leave, where the different periods of absence are not alternating with returning to work.
INL pointed out that parental leave is counted in the seniority and does not entail a reduction of holidays, rest, thirteenth month salary or Christmas bonus, except for accessory remuneration connected to actual workplace presence. This is without prejudice to more favourable collective bargaining provisions.
Based on the new provisions introduced by the Decree, in priority order, the cohabiting spouse is treated in the same way as the cohabiting partner under civil partnership and the de facto cohabitant of the disabled person in a serious condition.
Leave may be taken within 30 days (and not 60) from the application, and cohabitation may be established after submitting the application, provided that it is guaranteed throughout the leave.
With the new provisions introduced by the Decree, the “sole caregiver” principle is superseded. The principle under the previous system established that no more than one worker could be granted leave for assistance to the same severely disabled person. This excluded parents for whom this option was always available.
As a result of the changes introduced by the Decree, priority was given to the change of employment contracts from full-time to part-time. This applies to oncological or serious chronic degenerative illnesses affecting the spouse, civil or de facto cohabiting partner.
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The Labour Inspectorate, with note no. 1037 of 26 November 2020, intervened on an investigation of offences against an employing party in a “labour-intensive” contract.
Art. 4 of the Decree Law 124/2019 (the “Fiscal Decree“) added to Legislative Decree 241/1997 the new art. 17bis, which imposes new obligations on employing parties in labour-intensive contracts.
Particularly, as of 1 January 2020, contracting companies must request their contractor and subcontractors, a copy of the payment authorisations relating to withholding taxes, which were withheld from workers directly employed in any work or service under the contract. The payment of withholding tax is made by the contractor and subcontractor, with separate powers of attorney for each employing party, without the possibility of compensation.
The same provision stated that if there were a violation of these obligations, payment of the fees accrued by the contractor could be suspended up to 20 per cent of the value of the work or service “or by an amount equal to the unpaid withholding tax according to the data resulting from the documentation sent.”
The Labour Inspectorate, in its note, referred to the Inland Revenue circular no. 1E of 12 February 2020 which pointed out that the explanatory report in art. 4 identifies the purpose of the obligations to counter the “phenomenon consisting in the omitted or insufficient payment, including through undue compensation, of withholding taxes on employees and similar income recipients.” This takes place through systems which charge the employing party involved with the “labour-intensive” contracts.
The violation of the employing party’s obligations is sanctioned by a pecuniary sum equal to that imposed on the contractor for the incorrect determination and execution of withholding taxes, or late payment, without the possibility of compensation.
The Inspectorate note stated that the Inland Revenue specified: “this sum is not due when: despite the employing party not having correctly fulfilled the obligations under paragraphs 1 to 3, the contractor or subcontractor correctly fulfilled the obligations, or availed itself of the voluntary correction of tax return under article 13 of Legislative Decree no. 472 of 18 December 1997, to remedy the violations committed prior to being contested by the control bodies”.
According to the Inspectorate, the employing party ‘s control obligations were aimed exclusively at making the tax obligations of entrusted companies effective. Their violation cannot be ascribed to labour and social legislation violations, for which the Inspectorate may have jurisdiction.
Ready to go again but with what rules?
The National Labour Inspectorate provides detailed instructions to the territorial inspectorates to undertake checks on compliance with the contents of the protocol shared between the Government and the social partners on 14 March 2020 and on compliance with the precautionary measures to be taken for the safety of workplaces and workers. Vittorio De Luca, Antonella Iacobellis and Martina De Angeli analyse for Guida al Lavoro of Il Sole 24 Ore the operational guidelines to manage Phase 2.
Click here to read the DLP insights related to the matter and the considerations of the Firm.
In order to facilitate the activity of the Prefects at a decisive moment such as that of the so-called Phase 2, the National Labour Inspectorate (“INL”), on 20 April 2020, published note no. 149 (“Note INL no. 149”), with which it provides a real operating guide for its territorial offices, to contribute, at the request of the Prefectures, to the necessary checks on the occurrence of the conditions provided for the prosecution – in case where it is permitted – of production, industrial and commercial activities, with a view to indispensable synergy in the management of the current pandemic emergency.
These requests are in response to the circular of the Ministry of the Interior dated 14 April 2020, prot. no. 15350/117 (Annex A to the INL Note no. 149) which provides clarifications regarding the D.P.C.M. 10 April 2020 and which, among other things, highlights the need for the Prefectures to request the collaboration of the competent services of the Local Health Authorities (“ASL”) and the support of the INL’s territorial articulation, for the purposes of control:
Source: full italian version published on Guida al lavoro – Il Sole 24 ore.
The National Labour Inspectorate (“INL”) issued two notes, one shortly after the other, used to provide the first clarifications concerning the inspection procedures for worksites in light of the pertinent guidelines, shared in the “Joint Protocol on regulation of measures for contrasting and containing the spread of the Covid-19 virus” (the “Protocol”) signed by the stakeholders on 14 March 2020 (recently updated last 24 April).
Note 131 of 10 April 2020
Note no. 131 of 10 April 2020 has the objective of making workplace conduct uniform and consistent including due to the evolution of the pertinent emergency regulatory framework. A regulatory framework which, as should be recalled, has:
According to the INL inspection activity will be primarily focussed on implementation procedures, by the employers, of organisational and management procedures set up by the authorities and subject matter of the aforesaid Protocol.
It was further explained that the professionalism of the inspectors may be useful also in terms facilitation, mediation, deflation and verification of the processes for using public resources dedicated to support for families, workers, companies and credit, such as those to access social safety nets.
Note 149 of 20 April 2020
With the subsequent note no. 149 of 20 April 2020, INL provided further explanations concerning its inspectors’ control procedures on observance of the conditions required to continue production, industrial and commercial activities.
The note states that the Inspectors must perform inspection activities in close collaboration with the competent offices of the Local Healthcare Agencies, and with which they must previously establish a plan containing lists of companies to focus controls on. This is also envisaged to make it easier to correctly identify the objectives to pursue. However, should the inspectors find themselves faced with clear violations of a certain seriousness and urgency, requiring immediate on-site inspections, they may still perform them even without compliance with the aforesaid procedure.
In addition, the note specifies that for these types of inspections, the selection of inspectors to use must primarily be done on a voluntary basis and, above all, they must be provided with personal protection equipment suitable for the purpose.
Lastly, the note contains annexes such as (i) “guidelines for inspections on the anti-contagion protocol”, (ii) a report form for access and inspection entitled “Covid-19”, (iii) a list of personal protection equipment (PPE), with relative instructions for use for inspection personnel and, lastly, (iv) a check list with the inspections to perform; this is a type of questionnaire with yes/no answers to be filled out by the inspector.
In terms of punishment, if the inspectors find failure to comply with one or more of the prevention measures in the “Protocol”, they will not proceed by imposing a sanction on the employer. They must transmit the results of the inspection to the competent Prefecture, i.e. the access report and filled in check list, summarising the omissions and/or failures they found for adoption of any pertinent measures. It is then up to the Prefecture, based on this report, to adopt any measures, including of an interdictory nature, applied to the company.