Decree-Law 48 of 4 May 2023, so-called “Decreto Lavoro“, which came into force on 5 May, lays down new measures to, inter alia, simplify the employment disclosure requirements to which companies are subject under the so-called “Decreto Trasparenza” (Legislative Decree 104/2022).
Unlike in the past, some of the information that employers were bound to provide in detail in the employment contract or in a specific policy (length of probationary period, training, paid holidays and leaves, notice of dismissal and resignation, components of remuneration, working hours, overtime, social-security and insurance institutions) may now be given to workers just by referring to the relevant provision of law or of the collective agreement that applies to the employment, including the company agreement. For simplification purposes, and in order to ensure uniformity in the employer’s communications, the latter shall deliver and make available to workers, including through publication on the website, the national, local and company collective agreements, as well as any company rules that apply to the employment.
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
On 24 January 2023, the Italian Data Protection Authority (Autorità Garante per la protezione dei dati personali, the ‘Authority’) provided some interpretative and operational guidelines on data protection, which arose following the entry into force of Italian Legislative Decree of 27 June 2022, No 104 (also known as the ‘Transparency Decree’).
As is well-known, Article 1-bis of the Transparency Decree identified specific information obligations in the event of use of automated decision-making or monitoring tools, used to provide information (i) relevant for the purposes of recruitment or assignment, management or termination of the employment relationship, assignment of tasks or duties, or (ii) affecting the monitoring, assessment, performance and fulfilment of the contractual obligations of workers.
In this context, by means of the clarification under consideration, the Authority has identified both some additional information that the employer must provide to the data subject – in addition, therefore, to what is already provided for in Articles 13 and 14 of Regulation (EU) 2016/679 (the ‘GDPR’) – and some operational guidelines specifying the scope of the articles just mentioned.
Additional information includes: (i) the aspects of the employment relationship that are affected by the use of automated decision-making or monitoring systems; (ii) the operation of such systems; (iii) the main parameters used to program or train automated decision-making or monitoring systems, including performance evaluation mechanisms; (iv) the control measures adopted for automated decision-making or monitoring systems, any correction processes and the quality management system manager; (v) the level of accuracy, robustness and cybersecurity of the automated decision-making or monitoring systems and the metrics used to measure those metrics, as well as the potentially discriminatory impacts of those metrics.
In addition, each controller must, by way of example but not limited to:
Furthermore, if systems are used which give rise to exclusively automated decision-making processes which produce legal effects or which significantly affect the data subject, the employer will also have to evaluate alternative solutions which allow the worker to exercise the right to obtain human intervention, to express his or her point of view or to contest the decision.
In the light of the above, employers will have to carry out analyses and assessments of company processes to identifying the presence of the systems described, so as to develop and identify the activities to be adopted on a case-by-case basis, in order to ensure compliance with the regulations, both in the field of employment law and data protection.
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On 24 January 2023, the Personal Data Protection Authority (the “Authority”) gave the first interpretative and operative indications on the processing by employers of employees’ personal data using automated decision-making or monitoring systems aimed at providing information (i) that is relevant for the recruitment or appointment; for the management or termination of the employment; for the assignment of tasks or duties; or (ii) that affects the supervision, assessment, and performance of employees and the fulfilment of their contractual obligations. Under Legislative Decree 104/2022, the so-called “Transparency Decree”, in fact, any employer using one or more of the above instruments must provide the interested workers with supplementary information in addition to that required under articles 13 and 14 of the GDPR (Regulation (EU) 2016/679). In light of, inter alia, the latest indications of the Authority, this implies that employers need to check the internal processes of the reference organisations for the presence of any such system, and accordingly develop and define the necessary actions to be taken in order to ensure compliance with labour law and data protection legislation.
In addition to information already provided by the National Labour Inspectorate (circular no. 4 of 10 August 2022), the Ministry of Labour, with this circular, outlined the application of the new information requirements introduced by Legislative Decree no. 104 of 27 June 2022 “Transparency Decree”).
As already noted in National Labour Inspectorate Circular no. 4/2022, the employer must provide the worker with the basic information on individual provisions under the new Art. 1 of Legislative Decree 152/1997. For detailed information, they can refer to the collective agreement or company documents that must be delivered or made available to the worker under company practice.
According to the Ministry, the underlying basis of the reform is to broaden and strengthen the information obligations, but this must be set within the employment relationship, emphasising that the information obligation cannot “be considered fulfilled by abstractly referring to the legal provisions regulating the terms under information obligation. This must be done by providing information on the legal practical application of these measure on the parties’ relationship. This can be done by referring to the collective agreement applicable to the employment contract.”
As part of the new employer information obligations, the circular explained specific profiles, as follows.
For information on the “employee leave duration and other paid leave, (if this cannot be specified, the methods used to define and take leave)”, the Ministry clarified that:
The Ministry clarified the following for the obligation to inform the worker of “the initial remuneration or remuneration and its components, specifying the payment period and method.”
The employer must inform on “ordinary working hours, overtime conditions and remuneration, and conditions for changing shifts, if the employment contract includes predictable working hours.”
Art. 1-bis of Legislative Decree no. 152/1997, inserted by Article 4, letter b) of the Transparency Decree, requires employer additional information obligations if they use automated decision-making or monitoring systems.
In its circular, the Ministry of Labour clarified that the decree identifies two different mandatory information cases, if the employer uses automated decision-making or monitoring systems that:
The circular provides several examples for letter a) cases where the disclosure obligations under Art. 1 bis apply, namely:
the provision under letter b), includes “guidelines impacting the monitoring, assessment, performance and fulfilment of workers’ contractual obligations.” According to the Ministry, the employer must inform the worker of such automated systems, such as: tablets, digital devices and wearables, GPS and geotracking, facial recognition, rating and ranking systems, etc.
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