The National Labour Inspectorate (Ispettorato Nazionale del Lavoro, ‘INL’) has issued Note No 453/2023, in which it provides clarification on the possibility of lodging an appeal under Article 17 of Italian Legislative Decree No 124/2004 before the Labour Relations Committee in the event of fraudulent internship.
The internship (tirocinio), also known as an ‘stage’, does not take the form of a subordinate employment relationship, since the underlying aim of the contract is training that enables the intern to gain temporary experience in the world of work to enrich his or her professional knowledge and offer himself or herself for future recruitment. At the same time, the internship is an opportunity for the employer to train, according to its needs, a potential resource to be employed later within its organisation.
To regulate the manner in which this form of contract is used, Italian Law No 234/2021 (“Budget Law 2022”), in Article 1, paragraphs 720 to 726, introduced a series of measures aimed at curbing the improper use of this form of contract.
The legislation in question has provided that, for extracurricular internships continued and/or concluded after 1 January 2022, the sanctions set out in Article 1, paragraph 723, apply if the internship is carried out fraudulently. For an internship to be considered ‘fraudulent’, it is sufficient to prove that the internship relationship was actually an employment relationship, since fraudulence consists, according to the regulatory provisions, in the use of employees in the fictitious capacity of interns.
Paragraph 723 of the aforementioned Article, after reaffirming that an internship is not an employment relationship and that it cannot be used as a substitute for employment, namely provides for a fine of EUR 50.00 for each intern involved and for each day of internship.
Since this is a criminal sanction, punishedwith a fine, it is subject to the mandatory statute of limitations under Article 20 of Italian Law No. 758/1994, that terminates an existing relationship which breaches of the principles governing it. This is without prejudice to the possibility, in addition to the imposition of the penalty, and at the intern’s request, of recognising the existence of a subordinate employment relationship from the date of the judicial ruling. If the hosting entity complies with the requirement issued by the inspectors and pays the fine, the offence is administratively extinguished.
As regards the correct determination of the applicable sanction, in light of the principles set out in Articles 1 and 2, paragraph 1 of the Italian Criminal Code as well as the relevant case law, is it considered that the offence referred to in paragraph 723 can only be committed as from 1 January 2022, with the sanction accordingly being applied only for the days starting from that date.
The National Labour Inspectorate, with the note under discussion, once again deals with the new regulations on internships, with particular regard to the sanctions introduced by Italian Budget Law 2022 to avoid any overlapping of judgments with criminal authorities.
Having ascertained the sanction regime applicable to the non-compliant use of the internship, therefore, the INL wished to clarify what remedies may be available to the hosting entity and whether or not the hosting entity may bring an appeal under Article 17 to ascertain whether, in relation to an internship, there is actually an employment relationship.
It should be pointed out that, under Article 17 of Italian Legislative Decree No 124/2004, the Labour Relations Committee assesses administrative appeals ‘against the assessment measures of the National Labour Inspectorate and the assessment measures of the Social Security and Insurance Institutions concerning the existence or classification of employment relationships’.
Notwithstanding the provisions of the legislation, in the present case, the Inspectorate wished to exclude the possibility of an administrative appeal to the Labour Relations Committee to avoid overlapping with judgments by the criminal authority. In fact, the incorrect qualification of the employment relationship in terms of subordination is directly sanctioned by a criminal law provision, under which the inspectors proceed with the drafting of the specific mandatory measure setting out the statute of limitations.
Moreover, the Inspectorate had already ruled out, in Note No 1551/2021, the possibility of lodging an appeal under Article 17 in the cases of unlawful outsourcing under Article 18, paragraph 5-bis, of Italian Legislative Decree No 276/2003. In that context no employment relationship is created since, also in this case, the choice of taking legal action to for a finding as to the existence of an employment relationship on the part of the beneficiary, under paragraph 3-bis of Article 29 and 4-bis of Article 30 of Legislative Decree no. 276/2003, is always devolved to the worker concerned.
The National Labour Inspectorate (Ispettorato Nazionale del Lavoro, ‘INL’), in its circular No 1 of 15 February 2023, stated that, in the context of transnational posting, proof of posting is provided by the delivery of the Model A1 application at the inspection stage. This document is to be regarded as equivalent to a compulsory communication, and can be used to prove the establishment of an employment relationship.
In its document, the Inspectorate reiterates the definition of transnational posting, which means the posting or transfer of an employee of one company to another company with a place of work abroad.
Throughout the posting period the employment relationship remains with the worker’s home company.
The regulations governing transnational posting is contained in Italian Legislative Decree No 136/2016, in line with the provisions of EU law in Directive 2014/67/EU.
Employers who post their employees to companies located abroad, and workers who have several employment relationships in different countries, are required to apply electronically to the social security institution for the issue of an A1 form.
The purpose of the A1 form is to certify that the posted worker is duly registered with the social security system of the country of origin.
In compliance with Article 10, paragraph 3 of Italian Legislative Decree No 136/2016, in fact, the employer is obliged to keep the documentation proving the posting until two years after the end of the relationship. In this regard, the Inspectorate raised the question as to how to verify the posting, if the law of a foreign country does not provide for prior notification to public bodies at the recruitment stage.
The Inspectorate’s interpretation enables employers, who do not have documentation proving the posting in the foreign country, to present equivalent documents. In this regard, INL has ruled that it is sufficient to submit an A1 form application.
The A1 Form application confirms the social security registration in the state of origin; therefore, it is to be considered as a valid document for the purpose of certifying the regularity of the relationship as it contains the identifying data of the same.
The Inspectorate has ruled, therefore, that it is sufficient to submit the application made, as opposed to directly submitting the A1 form itself. This interpretation avoids all sorts of problems arising from possible delays by the foreign country’s authorities in issuing documentation.
In ruling No 223/2023, the Italian Revenue Agency provided some clarification on the applicability of the ‘tax amnesty’ (remissione in bonis) regime – under Article 2, paragraph 1 of Italian Decree-Law No 16/2012 – in the event of failure to pay under Article 5, paragraph 2-bis of Italian Decree-Law No 34/2019, for the extension of the special regime for impatriate workers.
Article 16 of Italian Decree-Law No 147/2015 provides that only a maximum of 30% of employment income and self-employment income produced in Italy by workers who transfer their residence to Italy contributes to the calculation of their total income for five tax periods when the following conditions are met:
Moreover, as a result of Article 5 of Italian Decree-Law No 34/2019, subsequently converted into law, with amendments, by Italian Law No 58/2019, which introduced paragraph 3-bis to Article 16 of Italian Decree-Law No 147/2015, the special tax regime may be applied for a further five tax periods when it is established that the subjective requirements of the rule are met, namely:
In both cases, during the extension period of the preferential tax regime, a maximum of 50% of the income generated contributes to the formation of the overall income.
In the request to the Italian Revenue Agency for a ruling, the applicant pointed out that he had returned to Italy in September 2016, together with his entire household and had benefited, from the 2017 tax period, from the provisions set out in Article 16 of Italian Legislative Decree No 147/2015, in the version of the text in force pro tempore, which provided that employee income would be included in the calculation total income up to a maximum of 50% of its amount.
After the applicant’s repatriation, the legislation was subject to substantial amendments and Article 5, paragraph 1 of Italian Decree-Law no 34/2019 – converted into Italian Law No 58/2019, the so-called “Growth Decree” (Decreto Crescita) – amended certain subjective and objective requirements of the impatriate scheme, increased the percentage reduction of taxable income and provided for the possible extension of the preferential tax treatment for a further five years under certain conditions.
The possible extension originally applied only to persons who had transferred their tax residence to Italy on or after 30 April 2019. Subsequently, however, the Italian Budget Law 2021 – Italian Law No 178/2020 – allowed the application of the extension to those registered with the Registry of Italians residing abroad (Anagrafe degli italiani residenti all’estero) and to citizens of European Union Member States who had transferred their residence before the year 2020 and who, as of 3 December 2019, were beneficiaries of the scheme.
The extension option required the payment of an amount equal to 10%, or 5% under certain conditions, of the taxable employment and self-employment income produced in Italy, relating to the tax period preceding that in which the option is exercised.
Although the applicant met the requirements to exercise the option to extend the impatriate scheme for a further five years, ‘due to a mere oversight (forgetfulness) […] he did not pay the amount by 30 June 2022’.
Faced with this oversight, the applicant requested the Italian Revenue Agency to apply the ‘tax amnesty’ regime (remissione in bonis) – governed by Article 2, paragraph 1 of Italian Decree-Law No 16/2012 – to regularise the non-payment of the above-mentioned amount, which was a prerequisite to the extension of the preferential tax regime.
In response to the request made by the applicant, the Italian Revenue Agency recalled that, following the entry into force of Italian Budget Law 2021, taxpayers participating in the special regime for ‘impatriate’ workers could benefit from the extension for a further five tax periods on payment of 10% or 5% of the taxable employment and self-employment income in Italy relating to the tax period preceding that in which the option is exercised.
By director’s order published by the Italian Revenue Agency protocol No 60353/2021, the Agency identified the procedures for exercising the option, from which it follows that the option must be exercised by paying a lump sum of:
The amount must be paid by means of an F24 form no later than 30 June of the year following the year in which the first period of the use of the preferential treatment ends and there is no possibility of offsetting.
The Italian Revenue Agency, in its ruling on the application in question, referred to a previous ruling published in July 2022 – No 383 – in which it specified that ‘the extension for a further five years of the special regime […] is subject to the exercise of the option on payment of the amounts due within the indicated deadline’. Therefore, the Agency considers that, ‘where the payment of the amounts due is omitted or deficient, non-compliance precludes the application of the benefit in question’.
In light of the foregoing, the Italian Revenue Agency reiterated that recourse to the voluntary correction of tax return (ravvedimento operoso) regime is not permitted, nor as suggested by the applicant, is recourse to the ‘tax amnesty’ regime under Article 2, paragraph 1, of Italian Decree-Law No 16/2012.
That article, in fact, provides that ‘the enjoyment of tax benefits or access to optional tax regimes, which are subject to the obligation of prior notification or to formal compliance promptly performed, is not precluded, provided that the breach has not been established or access, inspections, audits […] of which the taxpayer has had formal knowledge have not commenced, where the taxpayer:
According to the Italian Revenue Agency, the failure to pay the sums due by the deadline of 30 June 2022 is clearly not attributable to ‘formal’ compliance and therefore the taxpayer will not be able to regularise this compliance by means of the tax ‘amnesty’ regime.
With its order no. 37021 of 16 December 2022, the Court of Cassation stated that a worker is entitled to compensation for damages if, under an extraordinary redundancy fund (CIGS) procedure, the employer decides discretionally and without defined criteria to suspend work without adequate rotation.
The case involved an employer’s appeal after the suspension of a female worker under the “zero hours” extraordinary redundancy fund was held unlawful at first instance. The employer was ordered to pay the difference in wages to the worker for the extraordinary redundancy fund periods. These differences consisted in the company integrating the INPS payment up to the full salary that the worker should have received if she had worked for the entire period of the “zero hours” suspension.
Given the Court of Appeal’s confirmation of the first instance ruling, the employer asked for its annulment on several grounds of appeal. These were rejected by the Court of Cassation based on the following.
The employer claimed a short statute of limitations of the sums claimed by the worker based on Art. 2948 of the Italian Civil Code. The Supreme Court held that “under case law, the worker’s claim for damages for the unlawful suspension following the extraordinary redundancy fund allocation is based on a claim for contractual breach (consisting of relationship management which does not conform with the rules), subject to the ordinary ten-year statute of limitations.”
The Court of Cassation stated that the agreements for starting each extraordinary redundancy fund period referred to “technical and organisational needs related to a re-organisation plan but did not specify the criteria used to identify those who were to be suspended.” The employer’s criterion was “completely discretionary, not agreed, not inferable from the generic reference to technical-production requirements and arbitrary.”
The employer “autonomously identified the workers to be suspended without complying with predetermined criteria establishing the priorities within the following parameters – seniority, burdens, production needs. Additionally, it needed criteria application methods, identification of the workers’ group based on their qualifications and duties as part of the company reorganisation and restructuring objectives ”.
The Supreme Court ruling showed that during corporate reorganisation and restructuring that involves access to the extraordinary redundancy fund, specific obligations are imposed on the employer including notifying the trade unions of the criteria for the choice of personnel subject to wage subsidy. This must guarantee adequate rotation. If this is not implemented, the extraordinary redundancy fund measure is unlawful, as the employer is not allowed to arbitrarily choose the workers to be suspended.
The selection criteria to be considered are related to company seniority, family burdens and organisational needs. They must be an integral part of the notifications and joint examination under the law and paragraph 7 of Article 1 of Law 223/1991. If these criteria are not followed or defined by an agreement, the extraordinary redundancy fund measure is unlawful. According to the Court of Cassation, the worker suspended without the employer having implemented the criteria laid down in the union agreement is entitled to claim the employer’s compensation liability for breach of the “rotation” clause. In this case, the employer is liable according to the “debtor’s default” principle under Art. 1218 of the Italian Civil Code, unless it proves that this was not due to force majeure or organisational reasons beyond its control.
The National Social Security Entity (Istituto nazionale della previdenza sociale, ‘INPS’), with Circular No 4 of 16 January 2023, provided a summary of the provisions in force on the subject of social shock absorbers relating to employment relationships for 2023.
In its circular, the Entity reviewed the legislation relating to the main wage guarantee tools for each sector, starting from the provisions of Italian Law No 197/2022 (hereinafter, ‘2023 Budget Law’).
The main financing initiatives established by the 2023 Budget Law
The 2023 Budget Law provided for various initiatives in the field of social shock absorbers envisaged for 2023; with the above-mentioned circular INPS set out the details. In particular, it describes:
The Circular then summarised the wage guarantee tools currently in force, as well as the provisions on income and family support, the main contents of which are set out below.
Financing for employees of companies operating in areas of complex industrial crisis
For workers at companies operating in areas of complex industrial crisis, there is an increase in funding from the Social Fund for employment and training, established by Italian Law No 2/2009, equal to EUR 250 million, starting from 2023.
Furthermore, there is funding of EUR 70 million for the continuation of income support financing (CIGS and special unemployment fund), for employees.
The funds will be distributed among the Regions, through an inter-ministerial decree, jointly between the Ministry of Labour and Social Policy and the Ministry of Economy and Finance.
Income support measures for workers in the call centre sector
Financing from the Social Fund for employment and training will be refinanced and disbursed according to INPS message No 1495 of 4 April 2022. The indemnity paid is equal to the maximum wage guarantee financing, notwithstanding current legislation. The measure is subject to the issuance of specific decrees by the Ministry of Labour and Social Policy, containing the data relating to the beneficiary company, the payment methods and the period of financing provision.
Extension of the extraordinary wage guarantee fund financing for complex reorganisation processes or complex crisis recovery plans
For the two-year period 2023-2024, the extension of the provisions under Article 22 bis of Italian Legislative Decree No 148/2015, relating to income support measures through the extraordinary wage guarantee fund financing.
Furthermore, in derogation from Article 22 bis of Italian Legislative Decree No 148/2015, companies of regional strategic importance may request the use of the financing in question beyond the legal deadlines. The extension may be six months on the basis of ‘Corporate Crisis’, or 12 months in cases of ‘Corporate Reorganisation’ and for ‘Collective Reduced Hours Agreement’.
CIGS intervention for reorganisations and situations of particular economic difficulty
Throughout 2023, the provisions of Article 44, paragraph 11-ter of Italian Legislative Decree No 148/2015 regarding the possibility of resorting to the extraordinary wage guarantee fund financing – CIGS – for situations of particular economic difficulty will continue to apply.
By way of derogation from the legislative provisions, employers who have already benefited from the maximum period of wage guarantee envisaged, equal to 12 months in the rolling five-year period, will be able to access this financing.
Provisions on CIGO and wage guarantee allowance provided for by Article 44, paragraphs 11-quinquies and 11-sexies, of Italian Legislative Decree No 148/2015
It should be noted that the previous provisions relating to CIGO and the Wage Guarantee Allowance of the Wage Guarantee Fund (Fondo di integrazione salariale, ‘FIS’), as described in INPS Circular No 97 of 10 August 2022, no longer apply with effect from 1 January 2023.
Parental leave
In the context of the provisions on support for families, Article 1, paragraph 359, of the 2023 Budget Law introduced an important change in relation to parental leave, namely that for the maximum duration of one month of leave and up to the sixth year of the child’s life, the indemnity was raised from 30% to 80% of salary.
In particular, the new measure – which can be used alternatively between parents – applies to employees who finish the period of maternity leave or, alternatively, paternity leave, after 31 December 2022 and will be explained in detail with the subsequent specific circular that will be issued by INPS.
The Italian Revenue Agency, with ruling No 168 of 26 January 2023, provided some clarification on the determination of employment income in the case of incentive plans that provide for payment in shares.
Application for clarification
The application for clarification was submitted by a company resident in Italy, which belongs to an international group headed by a German company. Shares in the German parent company have been listed on the Stock Exchange since 2021 following an initial public offering (IPO).
Two of the Italian resident company’s employees participate in incentive plans, which are substantially the same, operated at an international level by a group company for subsidiaries, in particular:
On the occurrence of certain conditions set out in the plan, employees are entitled to receive a cash payment by exercising an option (so-called exercise notes) within certain deadlines. Alternatively, the company may decide, at its discretion, that instead of paying cash, employees will be assigned shares (so-called Share Settlement) (to be delivered within six weeks of the option exercise date).
The IPO of the German company’s shares took place on 4 February 2021 and the two employees exercised the option on 22 November 2021, accruing the right to receive the Payout in relation to the assigned Virtual Shares. The German company opted for the payment in shares and these were transferred to the two employees on 15 December 2021.
The Italian resident company – the employer – as a prudential measure determined the employee income relating to the above-mentioned transaction and applied the withholding taxes, identifying the normal value of the shares on the date of exercise of the option.
In this context the applicant company asked whether, in the present case, considering that when the option was exercised (22 November 2021) the employees were entitled to the payment of a sum of money and that only following the German company’s decision did they receive payment in shares, the normal value of the assigned shares had to be determined on the basis of the average price of the listed shares on the date of their transfer (15 December 2021).
The Italian Revenue Agency’s ruling
In providing the answer to the application for clarification, the Italian Revenue Agency first of all referred to the reference regulatory framework, starting from Article 49 (Employment income) of Italian Presidential Decree of 22 December 1986, No 917 (Italian Income Tax Consolidation Act, Testo unico delle imposte sui redditi, ‘TUIR’), according to which employment income is that which ‘derives from relationships which have as their subject matter the performance of work, in whatever capacity, in the employment and under the direction of others’.
Furthermore, for the purposes of determining employment income, the Agency reiterated that the subsequent Article 51 of TUIR, established that ‘employment income consists of compensation of any nature, monetary or otherwise, received for any purpose during the fiscal period, including in the form of donations, in connection with the employment relationship’.
On the basis of the latter provision, the Agency emphasised that compensation in kind also constitutes employment income, including the assignment of shares in listed companies (as in the present case), the normal value of which is determined under Article 9, paragraph 4, letter a), of TUIR.
Therefore, as already clarified in the past by the practice notes provided by the financial administration – Resolutions No 29/E/2001 and No 366/E/2007, Circular No 54/E/2008 – in the context of employee stock optionincentive plans, to determine the moment at which the shares are received as a result of the exercise of the option right, the shares must be considered to be at the disposal of the employee and, consequently, to be treated as taxable employee’s income.
In particular, Circular No 54/2008 clarified that the option right follows the signing of a contract with which one party is given the right to establish a definitive contractual relationship through a new declaration of intent. Therefore, unlike the bound party (the employer) who is not required to issue other declarations of consent, for the exercise of the right attributed to him or her, the option holder (the employee) must expressly express the will to establish a definitive contract.
Therefore, the shares reserved for the employee become at his or her legal disposal, i.e. they are assigned to him or her, when he or she exercises his option right, regardless of whether the actual issue or delivery of the security (or any accounting entries) take place at a later time.
As regards the determination of the taxable base, in the Ministry of Finance Circular of 17 May 2000, no 98, it was specified that the shares must be subject to taxation for an amount equal to the difference between the normal value determined under Article 9 of TUIR, at the time of exercise of the option right, and the amount paid by the employee for the assignment itself.
With reference to the case in question, according to the Italian Revenue Agency as set out in ruling No 168/2023, the determination of the moment at which the shares are received as a result of the exercise of the option right, within the context of the employee incentive plans, is when the shares must be considered to be at the disposal of the employee.
Therefore, the assignment of Virtual Shares to employees does not give rise to the right to the assignment of shares in the German company, not even following the German company’s (unilateral) decision to make the payment through assignment of its own shares, but only grants the employees a right to receive a cash payment (Payout Entitlement) on the occurrence of certain events contemplated by the incentive plans, including the IPO transaction, which took place on 4 February 2021.
Consequently, on the date of exercise of the option by the two employees (22 November 2021), they would not have acquired shareholders’ rights nor the ownership of the shares that the German company would subsequently assign on 15 December 2021, deciding to make the above-mentioned payment in shares.
Therefore, taking into account that, for the purposes of taxation of the employees’ income, the transfer of ownership of the shares is relevant which, in the present case, appears to have occurred at the time of the material delivery of the shares, the Italian Revenue Agency considers that the normal value of the shares assigned, under Article 9 of TUIR, must be determined on 15 December 2021, the date on which the German company decided to make the payment.
A new task force made up of HR Capital consultants and the Compliance Focus Team of De Luca & Partners has been set up to support companies in implementing the new Decree
Our company is launching a new task forceto support companies implementing the Whistleblowing Legislative Decree,which requires employers to put in place a system of protection and safeguards for persons who report crimes and irregularities in the course of a public or private professional relationship.
The Decree implementing EU Directive 2019/1937 on the protection of persons who report breaches of law introduces important measures for preventing and combating corruption andensures the utmost confidentiality of whistleblowers, the persons involved and the content of the report itself, extending the obligation to put in place a reporting channel to all companies with more than 50 employees.
The task force set up by HR Capital is a dedicated and already operational practice, even at this stage of the Decree’s pre-officialisation. The task force was created in synergy with experienced compliance professionals from the law firm De Luca & Partners.
The focus team created from this synergy of expertise is able to offer the necessary legal support to assist client companies in adopting the necessary procedures to ensure corporate compliance with the law, and also provides an intuitive SAAS computer system with all the features required for the implementation of a system for reporting any abuse and harassment at work, respecting the confidentiality and protection of whistleblowers. The task force also provides a constant monitoring service to ensure that any reports received are correctly addressed and handled.
“The Task Force set up together with De Luca & Partners is a further example of the proactivity we offer companies when it comes to assisting them in dealing with regulatory changes in the best possible way” said Leonardo Zaffiri, CEO of HR Capital. “One of our distinguishing qualities is our ability to provide our clients not only with a high quality service, but also a timely one: the creation of this task force goes precisely in this direction by anticipating, also in this case, the timing of the decree’s enactment. The focus team also supports companies that intend to obtain the UNI PDR 125/2022 certification, which requires a system for the anonymous reporting of any abuse and harassment at work”.
With ruling no. 32130 of 31 October 2022, the Supreme Court of Cassation ruled on the assessment of the damages payable to a worker for unlawful dismissal who, following the termination, had access to a retirement pension.
The case involved a Ministry of Cultural Heritage and Activities manager who requested a declaration of unlawfulness of a decree issued by his employer notifying his employment relationship termination effective from 4 September 2009. This assumed that the maximum contribution requirement of 40 years had been accrued under Article 72, paragraph 11 of Decree Law no. 112/2008.
The referring court declared that, based on a Supreme Court legal principle, this ministerial decree (no. 342/2009) was unlawful. The court excluded compensation for personal injury from the quantification of the damage arising from the unlawful termination of the manager’s employment relationship. When assessing the pecuniary damage, the court considered the remuneration lost in the period between 3 September 2009 and 31 October 2010, which was the expiry of the two-year retention period, and the “higher severance pay.” The relevant amounts were quantified by a Court Appointed Consultant.
According to the judge, the performance-related remuneration could not be included, not even as a loss of chance, since there was an absence of an express request, given that it “requires a positive verification of the manager’s achievement of objectives.“
However, the sums that the worker received as a retirement pension over the same period had to be deducted from compensation. This is because in the absence of a judicial dictum reinstating the employment relationship that would have made the sums paid by INPS recoverable, the court held that there were undue earnings for the worker, in the absence of the aliunde perceptum (sum earned elsewhere) deduction.
The worker appealed in cassation against the second instance ruling, which the Ministry counter appealed. Among the manager’s various grounds of appeal, one concerned the undue deduction of the amount paid medio tempore as retirement pension from the compensation for damages for unlawful dismissal, made by the Court of Appeal. According to the claimant, only the work remuneration received during the intermediate period (i.e. between dismissal and annulling ruling) can lead to a compensation reduction under the compensatio lucri cum damno principle, while the pension is not attributable to the unlawful dismissal and cannot be deducted even if the effects of the dismissal are frozen as a result of the failure to reinstate the claimant.
This ground of appeal was declared well-founded by the Court of Cassation. Among the grounds of appeal, the court referred to “the established case law which states that pension benefits are not deductible as aliunde perceptum, since only aliunde perceptum) earned through employment with the same working capacity is considered compensatory of the dismissal damage and not any income received.“
The Court of Cassation pointed out how the Joint Sections (Court of Cassation Joint Sections ruling no. 12194/02) specified that “the right to a pension derives from meeting legal age and contribution requirements, and is independent of the availability of the insured person who lost their job to work further, nor does it arise as a reason for employment relationship termination (see Court of Cassation 28 April 1995, ruling no. 4747). The financial benefits that the unlawfully dismissed worker receives depend on judicial facts external to the employer’s termination right and are not causally linked to the unlawful dismissal. For this reason, they are not subject to the compensatio lucri cum damno” rule.
The related sums cannot be treated as “a profit compensable with damage”, i.e., an increase in the worker’s assets, since this implies “an obligation of restitution of a corresponding amount.”
This compensation cannot be awarded when “the relationship is subject to specific prohibitions on the combination of pension and salary, because in such cases the subsequent declaration of dismissal illegitimacy invalidates ex tunc the right to retirement and subjects the person concerned to an action to recovery undue payments by the party paying the pension“, i.e. INPS.
The Supreme Court referred to the Joint Sections (Ruling no. 12564/2018) which stated that “when the conduct of the damaging party is merely the occasion for a granting that finds its justification in a corresponding and prior loss, then there is no profit that, alone, can compensate the damage and reduce liability“.
There is a justifying reason that does not allow the survivor’s pension to be counted as a difference from the negative consequences that derive from the wrongful act, since this social security measure “is not paid as compensation for the prejudice suffered by the injured party, but responds to a different causal attributive design, which is the reason of the benefit identifiable in the previous employment relationship, contributions paid and legal provisions. These factors are configured as an independent causal chain“.
The loss of the worker’s interest in re-establishing a de facto relationship by a reinstatement measure and as a result of the two-year retention period being reached, does not preclude its continuation de iure, considering the judicial assessment of the relationship’s unlawful termination. According to the Supreme Court and the compensation liability of the employer who is obliged to pay contributions, this would give rise to the repayment of the sums paid by INPS as pension in the two-year period. The Court of Cassation upheld the worker’s grounds of appeal.
Remote working proved to be widely used tool during the Covid-19 pandemic, to comply with interpersonal distancing practices and protect “at-risk” employees.
Once the emergency, which ensured a simplified method to access agile working, ended on 31 December 2022, the ordinary regulation under Art. 18, of Law no. 81/2017 applied.
From 1 January 2023, stipulating an individual agile working agreement with each worker covered by the related provisions is mandatory.
After an Agile working agreement between worker and employer has been made, work is organised by cycles and objectives, without precise constraints on the workplace or working hours, but following the rest periods under Legislative Decree no. 66/2003.
The agile working agreement must be in writing and contain the following elements:
“Simplified” agile working ending had consequences for those who have children and at-risk workers. The deadline for workers with children under 14 years who performed agile working without an individual agreement expired on 31 December 2022. Workers with the illnesses set out in the Ministerial Decree of 4 February 2022 and classified as “at-risk”, can carry out agile working in “emergency” mode, i.e., without an individual agreement, until 31 March 2023.
The ordinary regime allows the following categories of workers to have priority in accessing agile working:
The names of workers under agile working must be reported within five days of signing the agreement, via the cliclavoro.gov.it platform. The Ministry of Labour and Social Policies provided a new procedure for mass submission, through an Excel file made available on the platform.
Failure to submit the report or late submission will result in administrative penalties against the employer.
The mandatory report for at-risk workers carrying out agile working without an individual agreement with a deadline by 31 March 2023, will be sent in “simplified” mode by 31 January 2023. After this date, the ordinary mode will be required.
On 29 December 2022, Law no. 197/2022 “The State Budget Forecast for Fiscal Year 2023 and Multi-Year Budget for 2023-2025 (hereafter, “Budget Law”) was published in the Official Gazette. The new social security regulation extended some provisions and adjusted others, pending the system’s 2024 reform.
Article 14 of Decree Law no. 4/2019, converted into Law no. 26/2019, experimentally introduced early retirement with the “Quota 100” system from 2019 and until 31 December 2021, with 38 years of contributions and 62 years of age. In 2022, the above requirement was raised by two years and early retirement under the quota system could be completed by 31 December 2022 with “Quota 102”, based on the age requirement which was raised from 62 to 64 years.
From 2023 and for an experimental year, the Budget Law introduced the “Quota 103” pension, replacing Quota 102, for members of all social security schemes, except members of the Social Security Funds for professionals, who are at least 62 and have accrued a contribution period of at least 41 years, and can meet these requirements by the end of the year.
The recipients are employees or self-employed workers enrolled in the exclusive and substitute version of the General Compulsory Insurance (‘AGO’) managed by INPS – i.e., show business, professional sportsmen formerly ENPALS and journalists formerly INPGI – and those enrolled in the Separate Management Scheme. The contributions required to reach 41 years of seniority are those enrolled in the above management schemes, including any combinations, without prejudice to the additional requirement of 35 years of contributions for the right to a pension, from which periods of illness and unemployment are excluded.
For those who meet the requirements, following an application, the general rule is that the effective date starts from the first day of the month following the opening of the “timeframe”, which starts three months after fulfilling the requirements. More specifically:
Under the regulation, the amount paid for early retirement may not be more than five times the minimum allowance. The maximum gross monthly amount that can be disbursed cannot exceed €2,818.70. When the age requirement to access the old age pension is reached, (67 years), the amount payable will be adjusted to the amount accrued at the time the “Quota 103” is accessed.
The regulation states that the early retirement allowance cannot be combined, from the day the pension takes effect and until the fulfilment of the requirements that give access to the old age pension, for self-employed and employed income earned in the country and abroad, except for income deriving from occasional self-employment, up to annual €5,000 gross.
Contrary to the Quota 103, the entry into force of the Budget Law has radically changed the rules to access Opzione donna compared to those in force in 2022.
The Budget Law did not extend this method of leaving work under the same terms as the previous extension, i.e., with 35 years of contributions and an age of 58 for female employees and 59 for self-employed workers. It changed the age requirement and introduced additional subjective requirements.
Under the new provisions, female workers who are 60 and have accrued at least 35 years of contributions by 2022 are eligible for opzione donna. The new legislation simplified the age requirements by eliminating the difference between self-employed or employed. Moreover, the age requirement could be reduced to 59 years if the worker has one child and 58 if they have at least two children.
The change introduced by the Budget Law is that applicants must fall into one of the following categories, even if the contribution and age requirements are met:
The previously applied calculation methods are unchanged. For monthly pension calculation purposes, the contribution calculation criteria will be applied even if the applicants would be entitled to the mixed method based on seniority. To receive the monthly allowance, 12 months must elapse between the accrual of the right and the pension start date for female employees and 18 months for those with mixed or only self-employed contributions.
With judgment No 30167 of 13 October 2022, the Italian Court of Cassation rejected the appeal filed by an employer against a finding that a worker’s dismissal for a justified objective reason was unlawful.
Furthermore, the District Court had found that the worker had been assigned a task attributable to a level of qualification lower than the worker’s, in breach of Article 2103 of the Italian Civil Code.
The facts of the case were that a worker who was head of shift of security guard patrols, was dismissed following the loss of a contract.
The Italian Court of Cassation based its decision on the ‘clear non-existence’ of the factual ground that gave rise to the dismissal, which – following the investigation carried out in the various levels of the proceedings – was not linked by a causal link to the disappearance of the post to which the worker was invalidly assigned. On this basis, the protection of reinstatement applied, as required by Article 18, paragraph 7 of Italian Law No 300/1970 and the company was also ordered to pay the costs of the proceedings.
The employer filed an appeal based on six grounds, which mainly concerned the ‘clear non-existence’ of the factual ground and the excessive burden of reinstatement, provided for by the above-mentioned Article 18.
In particular, the company claimed that the District Court breached the legal principle expressed by the Italian Court of Cassation during the annulment with regard to the interpretation of the concept of ‘clear non-existence’ of the factual ground which was the basis of the dismissal (under Article 18, paragraph 7 of Italian Law No 300 of 1970), which would have been carried out ‘without the investigation both on the “obvious and easily verifiable” lack of causal link between the assignment (invalid) to the post and subsequent disappearance of the post and on the excessive burden of reinstatement’.
Furthermore, the appellant alleged a failure to examine a decisive fact discussed between the parties, given that the District Court overlooked – for the purpose of assessing the ‘excessive burden of reinstatement’ – that there were no positions of head of shift available at the operations centre where the worker was employed. Consequently, as the worker had been found to be classified as third level referred to by the Collective Bargaining Agreement for Security (Contratto Collettivo Nazionale di Lavoro – CCNL), he could no longer be assigned the duties of head of shift.
Notwithstanding the appellant company’s arguments, the Italian Court of Cassation nevertheless considered the various grounds for appeal to be unfounded. In particular, it explained how Article 18, paragraph 7 of Italian Law No 300/1970 — which governs the sanctions to be applied in the event of a finding that a dismissal for justified objective reason is unlawful — has been ‘affected by two recent judgments of the Italian Constitutional Court, subsequent to the rescinding ruling, precisely with regard to the requirements for the application of reinstatement protection’.
In particular, the Italian Constitutional Court, with judgment No 59 of 1 April 2019, declared Article 18, paragraph 7 of Italian Law No 300/1970 to be unlawful in the part in which it provides that the judge, when he or she has ascertained the clear non-existence of the factual ground on which the dismissal for a justified objective reason is based, ‘may also apply’ – instead of ‘also applies’ – Article 18, paragraph 4. Judgment No 125 of 2022 also declared the unlawfulness of the same paragraph where it provides for the non-existence of the factual ground for dismissal, limited to the term ‘clear’.
On the basis of the Italian Constitutional Court’s clarification, the Italian Court of Cassation has highlighted that where the judge ascertains the non-existence of the factual ground on which the dismissal for justified objective reason is based, the dismissal must be annulled and the reinstatement of the worker ordered, ‘without any right to choose between restorative protection and financial protection’. Therefore, the assessment of the existence of the defects complained of in the appeal must be made by reference to the legal framework applicable as a result of the ruling of unconstitutionality.
On this point, the Italian Court of Cassation pointed out that the assessment of the merits of the cassation appeal must be made with reference to ‘the legal framework applicable as a result of the ruling of unconstitutionality, it being irrelevant that the contested decision or the very lodging of the appeal predates the ruling of the judge on the laws, given that the effects of the declaration of unconstitutionality of a law are retroactive to the date of introduction into the legal system of the text of the law declared constitutionally unlawful”.
Since the first five grounds of appeal all relate to the fulfilment of two requirements relating to the regime sanctioning dismissal for justified objective reason which are no longer valid, the above-mentioned grounds were rejected.
The District Court also found that the finding as to the unlawfulness of the factual ground underlying the dismissal was to be regarded as definitive, since the material ground giving rise to the employee’s dismissal must be considered to be totally non-existent, given that there was no lawful assignment of the employee for the contract. Therefore, an unlawful factual ground could not be the basis, in a causal connection, for the dismissal for justified objective reason.
In other words, the factual ground of ‘loss of contract’ — according to the Italian Court of Cassation — cannot justify the dismissal of the worker who could not be assigned to it. Thus, the only requirement of Article 18, paragraph 7 of Italian Law No 300/1970 (in the text following the two rulings of the Italian Constitutional Court) for the application of the reinstatement protection was fully satisfied.
The employer was therefore ordered to pay compensation and contributions due to the worker for the period between the termination of the relationship and the effective reinstatement, up to a maximum of twelve monthly payments.
The Ministry of Labour and Social Policy, in consultation with the Ministry of Equal Opportunity and Family Affairs and the Ministry of Economy and Finance, issued Italian Ministerial Decree of 20 October 2022, regarding the tax exemption for private companies that have obtained the certification of gender equality and additional measures for the promotion of gender wage equality and women’s participation in the labour market, implementing Article 5, paragraph 2 of Italian Law No 162/2021, and Article 1, paragraph 138 of Italian Law No 234/2021.
To implement the provisions contained in the previously mentioned articles, the decree identified:
Article 2 of the decree states that private companies that have obtained the certification of gender equality, from 2022, can benefit from a tax exemption as governed by Articles 3 and 4 of that decree. The exemption may be applied for the duration of the validity period of the said certification.
The benefit, for employers, is the possibility of taking advantage of a reduction to the extent of 1 percent of the total social security contributions for which they are liable, subject to a maximum limit of EUR 50,000.00 on an annual basis. If, in connection with a large number of applications submitted, the allocated resources should prove insufficient, the benefit granted to companies would be proportionally reduced.
The tax relief, according to the provisions contained in the decree, will be prorated on a monthly basis and enjoyed by employers in reduction of their social security contributions, on the monthly payments related to the period of validity of the certification of gender equality. The certification is valid for three years and is subject to annual monitoring by the National Social Security Entity (Istituto Nazionale della Previdenza Sociale, ‘INPS’). It should be pointed out that company union representatives and equality counsellors and advisors may, according to Italian Ministerial Decree of 29 April 2022, report to the certifying body any critical issues found at the certified company.
According to the provisions of Article 3, for the purpose of eligibility for the exemption, private sector companies, through their legal representative or a delegated intermediary, have to submit an electronic application to INPS in accordance with the operating procedures and specific instructions provided by INPS.
Applications shall include the following information:
It should be noted that if the certification is ordered to be revoked, the companies concerned will be required to promptly notify INPS and the Equal Opportunity Department.
If a company unduly benefits from the tax exemption, it will be required to pay the contributions not due in respect of the tax reduction, as well as the penalties set out in the relevant legal provisions. This is without prejudice to any criminal liability where the act constitutes a crime.
L’Elemento di Garanzia Retributiva, pari a Euro 300,00 lordi uguale per tutti i lavoratori, va erogato con la retribuzione dei mesi di gennaio di ogni anno ai lavoratori in forza il 1° gennaio di ogni anno ed aventi titolo in base alla situazione retributiva individuale rilevata nell’anno precedente, con assorbimento fino a concorrenza del valore dell’E.G.R. di quanto individualmente erogato.
Le Parti si impegnano ad istituire una Cassa rischio vita in favore degli Operai Agricoli a Tempo Indeterminato attraverso apposito accordo da definirsi entro il 31 dicembre 2022.
La prestazione – che verrà riconosciuta per gli eventi verificatisi a decorrere dal 1° gennaio2023 – avrà natura sperimentale. L’accordo dovrà definire i requisiti e le condizioni per l’accesso alle prestazioni, la misura dell’indennità, la copertura assicurativa e il coordinamento con le prestazioni già erogate dal Fisa.
Le aziende che non realizzano la contrattazione del premio per obiettivi di cui all’art. 55 del C.C.N.L., erogano, a titolo di indennità per mancata contrattazione di secondo livello a favore dei lavoratori dipendenti, gli importi di cui alla tabella riportata nel testo del CCNL.
Tali importi, erogati a partire dal 1° gennaio 2023 per 12 mensilità, assorbono fino a concorrenza eventuali erogazioni svolgenti funzione analoga agli istituti di cui sopra.
In sostituzione delle soppresse festività di cui alla L. 5.3.1977, n. 54 e del relativo trattamento, ai lavoratori spettano, nel corso di ciascun anno, quattro giorni di permesso individuale retribuito non frazionabile, salvo quanto previsto al successivo paragrafo. A far data dal 1° gennaio 2023, nell’ottica di agevolare la conciliazione dei tempi di vita con i tempi di lavoro, anche come strumento di maggiore attrattività verso il personale neoassunto, ai soli lavoratori con anzianità di servizio fino a 8 anni è consentita la frazionabilità in ore, per periodi comunque non inferiori ad un’ora, di uno dei suddetti quattro giorni di permesso individuale retribuito.
Allo scopo di sviluppare il sistema di Welfare contrattuale, con decorrenza dal 1° gennaio 2023, il contributo annuo a carico azienda per il finanziamento del Fondo T.P.L. Salute è pari a Euro 144,00 (Euro 12,00/mese, comprensive del contributo annuo stabilito dall’art. 38 lett. b) dell’A.N. 28 novembre 2015) per ogni lavoratore in forza a tempo indeterminato, ivi compresi gli apprendisti.
Le Parti, riconoscono l’Ente Nazionale per l’Istruzione Professionale Grafica (Enipg) quale organismo atto a provvedere allo studio, alla promozione e al coordinamento delle iniziative dirette a favorire lo sviluppo tecnico e professionale del settore. A decorrere da gennaio 2022 viene istituto un contributo di assistenza contrattuale. Le aziende del settore cartotecnico sono tenute all’iscrizione a decorrere da gennaio 2022.
Al contributo non sono tenute le aziende cartarie e del converting del tissue.
A decorrere dal 1° gennaio 2023, in favore dei lavoratori dipendenti iscritti al Fondo Byblos, è riconosciuto un contributo aggiuntivo a carico del datore di lavoro pari allo 0,3% della normale retribuzione annua.
Con decorrenza dal 1° gennaio 2023, verranno applicate le nuove percentuali in caso di lavoro straordinario notturno.
Con riferimento agli addetti all’industria delle imprese produttrici di ceramica sanitaria, di porcellane e ceramiche per uso domestico e ornamentale, di ceramica tecnica, di tubi in gres con rapporti di lavoro disciplinati sino al 13 marzo 2008 dal contratto collettivo per gli addetti all’industria chimica (si veda Capitolo VII – Parte IX -”Welfare di settore” – “Previdenza Complementare”) – le Parti concordano che l’ammontare dell’aliquota di contributo a Foncer per la sola parte a carico del datore di lavoro – come disciplinata nel CCNL 16 novembre 2016 cui si rinvia – sia incrementato dello 0,1% a decorrere dal 1° gennaio 2022 e di un ulteriore 0,1% dal 1° gennaio 2023, da calcolarsi sulla retribuzione utile ai fini del calcolo del TFR.
L’Elemento di garanzia retributiva sarà pari a Euro 8,00 (otto/00) mensili a decorrere dal 1° gennaio 2023.
A decorrere dal 1° gennaio 2023 al dirigente viene riconosciuta, attraverso apposita polizza assicurativa, con premio a carico del datore di lavoro e con un limite massimo di Euro 70,00 annui, la copertura delle spese legali sostenute in caso di procedimenti penali relativi a fatti direttamente connessi con l’esercizio delle funzioni attribuite, non dipendenti da colpa grave o dolo.
Il contributo annuo a carico dell’impresa che aderisce a forme alternative per l’assistenza dei dirigenti in servizio (contributo ex art. G) è elevato a Euro 2.500,00 (duemilacinquecento/00) a decorrere dal 2023.
A partire dal 1° gennaio 2023 viene estesa a tutti i lavoratori l’assicurazione contro il rischio di responsabilità civile verso terzi nello svolgimento delle proprie mansioni contrattuali. Da tale copertura assicurativa sono esclusi i casi di dolo o colpa grave del dipendente.
Il lavoratore ha diritto, per ogni anno di servizio, ad un periodo di riposo proporzionale ai mesi di servizio prestati nell’anno. A partire dal 1° gennaio 2023, al dipendente spetteranno (i) 20 giorni lavorativi, se con anzianità fino a 6 anni compiuti e (ii) 1 giorno lavorativo per ogni anno di anzianità oltre i 6 anni fino ad un massimo di 24 giorni lavorativi.
A partire da gennaio 2023, il preavviso nei confronti dei lavoratori in possesso dei requisiti previsti dalla legge per il pensionamento di vecchiaia è pari ad 8 giorni di calendario.
A decorrere dal 1° gennaio 2023, le Aziende versano ai Fondi di previdenza complementare di competenza operanti nel settore, ad incremento della misura della contribuzione a carico Azienda, un importo aggiuntivo in misura fissa pari a Euro 3,00 per ogni mensilità.
Con decorrenza dalla data del 1° gennaio 2021, anche a integrale copertura del periodo trascorso a titolo di carenza contrattuale 2019-2021, in favore del personale in forza nelle aziende associate nel mese di dicembre 2021, la retribuzione tabellare lorda riferita al parametro B1 è incrementata dell’importo di euro 65,00 lordi mensili, da riparametrare sulla base della scala applicata e a cui detrarre l’I.V.C. già corrisposta dalle aziende. Le Parti convengono che gli arretrati derivanti dall’incremento retributivo sopra richiamato, saranno erogati dalle aziende associate in favore dei lavoratori con le seguenti modalità temporali: (i) 1/3 degli arretrati a gennaio 2023; (ii) 1/3 degli arretrati con lo stipendio di marzo 2023; (iii) 1/3 degli arretrati con lo stipendio di maggio 2023.
Le Società del Gruppo FS Italiane assicureranno tutto il personale dipendente alla forma di assistenza sanitaria integrativa, ivi compresa la tutela del reddito per i lavoratori riconosciuti inidonei in via definitiva dalla struttura competente di R.F.I. (Direzione Sanità) alle mansioni per cui erano stati assunti od a cui erano stati successivamente adibiti, per infortunio sul lavoro o malattia professionale o a causa di gravi patologie, che sarà individuata entro il 31 dicembre 2022, tra i soggetti su scala nazionale che garantiranno la migliore offerta di prestazioni a fronte di un contributo aziendale per ciascun lavoratore stabilito in euro 300,00 per anno, a decorrere dal 1° gennaio 2023.
Il Fondo Eurofer è il fondo di previdenza complementare per i lavoratori delle Società del Gruppo Ferrovie dello Stato Italiane. A far data dal 1° gennaio 2023, il contributo a carico del datore di lavoro e del lavoratore associato è dovuto nella misura di: (i) 1% a carico del lavoratore e (ii) 2% a carico del datore di lavoro.
In attuazione del comma 2 dell’art. 37 (Welfare) del C.C.N.L. Mobilità/Area AF, le Società del Gruppo FS Italiane destinano la somma annua di Euro 100,00 di costo aziendale al Fondo Eurofer, per ogni lavoratore occupato a tempo indeterminato, compresi i lavoratori con contratto di apprendistato professionalizzante.
A decorrere dal 1° gennaio 2023 sono previste modifiche alla disciplina contrattuale da applicare ai contratti di lavoro in apprendistato stipulati a partire dal 1° gennaio 2023.
Dal 1° gennaio 2023 l’impegno di reperibilità è limitato a 10 giorni/mese di servizio pro-capite. I compensi sono maggiorati del 15% per le giornate eccedenti il decimo giorno/mese. Semestralmente viene attivata una verifica con la R.S.U. sulle eccedenze medie. Nei confronti del personale reperibile che di norma svolge la propria attività da remoto utilizzando gli strumenti aziendali, senza doversi recare sul luogo dell’intervento, viene riconosciuto un importo aggiuntivo per ciascuna giornata di reperibilità pari a Euro 5,00 che si eleva a Euro 6,00 dal 1° gennaio 2023.
L’Elemento di Garanzia Retributiva è pari a Euro 230,00 lordi annui per gli anni 2021 e 2022 e di Euro 250,00 lordi annui per l’anno 2023, uguale per tutti i lavoratori. Va erogato, al più tardi, con la retribuzione del mese di gennaio 2022, gennaio 2023 e gennaio 2024 ai lavoratori in forza al 1° gennaio di ogni anno ed aventi titolo in base alla situazione retributiva individuale rilevata nell’anno precedente, con assorbimento fino a concorrenza del valore dell’E.G.R. di quanto individualmente erogato.
Fino al 31 dicembre 2022 trova applicazione il Contratto sottoscritto tra le Parti in data 8 marzo 2017. Il Contratto 16/11/2022 ha validità dal 1° gennaio 2023 al 31 dicembre 2026. Alla sua scadenza le Parti procederanno alla rinnovazione del contratto quadriennale.
Per il fondo Byblos l’aumento della contribuzione a carico aziende per i lavoratori aderenti che non hanno l’ERC è previsto nella misura dello 0,5 a decorrere da gennaio 2023.
Dal 1° gennaio 2023 è fissato in Euro 65,00 ovvero euro 5,00 mensili per 13 mensilità, il contributo annuo a carico di ogni dipendente al Fondo di accompagno all’esodo.
A decorrere dal 1° gennaio 2023 l’importo dell’elemento di garanzia retributiva è di Euro 210,00 lordi annui.
A decorrere dal 1° gennaio 2023, le aziende verseranno al Fondo Previambiente una quota contributiva ulteriore in cifra fissa di Euro 5,00 per 12 mensilità, destinata esclusivamente alla copertura assicurativa dei casi di premorienza ed invalidità permanente certificata dagli enti competenti che comporti cessazione del rapporto di lavoro, che il Fondo è impegnato a realizzare in favore di tutti i lavoratori aderenti cui si applica il presente CCNL.
1° gennaio 2023, le aziende verseranno al Fondo Previambiente una quota contributiva ulteriore in cifra fissa di Euro 5,00 per 12 mensilità, destinata esclusivamente alla copertura assicurativa dei casi di premorienza ed invalidità permanente certificata dagli enti competenti che comporti cessazione del rapporto di lavoro, che il Fondo è impegnato a realizzare in favore di tutti i lavoratori aderenti cui si applica il presente CCNL.
Allo scopo di sviluppare il sistema di Welfare contrattuale, con decorrenza dal 1° gennaio 2023, il contributo annuo a carico dell’azienda per il finanziamento del Fondo T.P.L. Salute è pari a Euro 144,00 (12,00/mese, comprensive del contributo annuo stabilito dall’art. 67 del C.C.N.L. 26 luglio – 14 settembre 2018), per ogni lavoratore in forza a tempo indeterminato non in prova, ivi compresi gli apprendisti.
A partire dal 1° gennaio 2023, l’articolo 51 bis del CCNL prevede la sostituzione della tabella del contratto Alimentare relativa al trattamento economico per mancata contrattazione di secondo livello.
Le aziende a decorrere dal 1° gennaio 2023, sono tenute, al primo gennaio di ogni anno, a mettere a disposizione dei lavoratori, che abbiano superato il periodo di prova, strumenti di welfare per un importo annuo pari ad Euro 100,00 da utilizzare entro il 30 novembre dell’anno successivo. Tale importo va proporzionalmente ridotto in caso di contratto part-time ed in base ai mesi di anzianità di ogni lavoratore nel periodo intercorrente dal 1° gennaio al 31 dicembre dell’anno precedente. I lavoratori avranno la possibilità di destinare l’importo suddetto al Fondo di Previdenza Complementare Intersettoriale.
Al lavoratore chiamato a prestare la propria opera in trasferta sia impossibilitato a consumare il pasto nelle ore comprese tra le 12 e le 15 e/o le 19 e le 22, in sostituzione del piè di lista, è riconosciuto un concorso spese di complessive di Euro 13,00 per ogni pasto. Tale indennità è pari ad Euro 15,00 dal 1° gennaio 2023.
Anche a favore dei Dirigenti compresi nella sfera d’applicazione del presente Contratto, è operante il Welfare Contrattuale, come previsto dal presente CCNL, con costo minimo dal 2023 di Euro 720,00/anno.
L’Elemento di Garanzia Retributiva, pari a Euro 300 lordi uguale per tutti i lavoratori, va erogato con la retribuzione dei mesi di gennaio di ogni anno ai lavoratori in forza il 1° gennaio di ogni anno ed aventi titolo in base alla situazione retributiva individuale rilevata nell’anno precedente, con assorbimento fino a concorrenza del valore dell’E.G.R. di quanto individualmente erogato.
A partire dal 2023, il datore di lavoro erogherà al lavoratore, entro il 31 dicembre di ogni anno, il Welfare Contrattuale pari ai valori riportati nel testo del CCNL di riferimento.
A decorrere dal 1° gennaio 2023 è previsto un aumento dei minimi retributivi tabellari dei seguenti CCNL:
Nel mese di gennaio 2023 è prevista l’erogazione di importi a titolo di “una tantum” per i dipendenti i cui rapporti di lavoro sono disciplinati dai seguenti CCNL:
The enactment of Italian Legislative Decree No 105/2022 (the ‘Work-Life Balance Decree’), implementing Directive (EU) 2019/1158 of the European Parliament and Council, introduced new initiatives in the area of family leave. In particular, on this point, the National Labour Inspectorate’s (Ispettorato Nazionale del Lavoro, ‘INL’) note No 2414 of 6 December 2022 adjusted the penalty regime for the new obligations imposed on employers regarding employees’ use of family leave.
Among other measures, Article 27 of the decree in question grants new fathers a period of compulsory abstention from work of 10 working days (doubled in the case of twins), with 100 percent pay paid by INPS. This period must be requested from the employer in writing and with not less than five days’ notice, unless better terms and conditions are stipulated in the national collective bargaining agreement (contratto collettivo nazionale di lavoro, ‘CCNL’) applied to the employment relationship.
Additional measures related to work-life balance for parents and caregivers have also been provided, with the aim of optimising the reconciliation between the two said spheres and achieving a more equal sharing of care responsibilities and tasks between men and women, promoting effective gender equality in both work and family life and promoting the overcoming of stereotypes.
The legislature’s intentions, through the provisions contained in the aforementioned decree, are to bring about systematic reform of the pre-existing protections and rights on family care and work-life balance, through updating, reorganising and modernisation of the regulatory framework on the subject.
In its note INL clarified that in the event of an employer’s obstruction or refusal to allow workers to take leave, an administrative penalty of EUR 516.00 to EUR 2,582.00 applies. In addition, non-compliance could stop the employer from obtaining the certification of gender equality.
If the employer obstructs or refuses to allow a father to take the alternative leave in serious situations (e.g., death of the mother), this is punishable by the criminal sanction of arrest for up to six months and failure to obtain the certification of gender equality.
For breach of the prohibition of dismissal by the employer of the new father until the child’s first birthday, in addition to the invalidity of the dismissal and all that it entails, an administrative sanction of EUR 1,032.00 to EUR 2,582.00 applies. The same administrative penalty applies if the right to job retention is breached.
Finally, an administrative penalty of EUR 516.00 to EUR 2,582.00 applies in cases of non-compliance with daily rest periods for mother and father as well as disabled children.
INL clarified that under the transitional regime for births occurring before 13 August 2022 (the effective date of the decree under review), the protections provided by the decree for the right to the payment in lieu of notice in case of resignation within the child’s first year and the prohibition of dismissal apply.
The assistance rights provided for spouses and relatives-in-law are also extended to de facto cohabitants and civil unions under Italian Law No 104/1992.
Finally, the note clarifies that workers’ requests for the leave provided under the law must be compatible with the ordinary operation of the company, while also coordinate with the needs of the employer.
With Order No 24722 of 11 August 2022, the Italian Court of Cassation rejected the appeal against a decision of the Rome Court of Appeal, which had held the dismissal on disciplinary grounds of a worker to be ineffective without the prior posting of the disciplinary code.
The disputed facts concern the dismissal of a worker who had been employed by an employer since 1993. Since 2010, the employee had been exclusively responsible for threading copper tubes inside the plastic diaphragms constituting a supporting structure called ‘castelletto’.
From 2011 to 2013, the worker had received various disciplinary complaints for poor performance and disciplinary measures to suspend service and pay. On 7 November 2013, he had been dismissed with notice following a disciplinary allegation of ‘deliberate slowness in carrying out the task assigned to him’, together with the reoccurrence of the allegation.
The court, both in the summary stage and in the subsequent opposition stage, had rejected the claim, having ascertained the worker’s performance (50% civil disability but judged fit for the task assigned to him) to be 50% or less than the average performance of the department where he was assigned.
The appeal judges, therefore, pointed out that ‘the disciplinary dispute had as its object the breach, not of the worker’s fundamental duties or of the so-called “minimum ethical standards”’, which must be presumed to be known by all, ‘but of a specific technical productivity rule’, linked to a specific average standard set by the company on the basis of the organisation of its production and the average achieved by other employees with identical duties. In view of these characteristics, therefore, the employer should have first informed the workers of the disciplinary relevance of the breach of the aforementioned productivity rule by posting the disciplinary code in a place accessible to all.
The company, in its defence, having received the same indication at the previous instances of the proceedings under Article 7, paragraph 1, of Italian Law No 300/1970, i.e. not having posted the company regulations, requested the admission of witness evidence, supplemental to submission of its counter-arguments, but in both judgments the defendant’s objection was not upheld.
The judges of last instance, in their order, considered the judgment of the previous judge to be legitimate and ordered the applicant to pay the costs of the proceedings.
The Decree of the Italian Ministry of Labour and Social Policies of 2 August 2022 was published in the Italian Official Gazette of 28 October 2022, with the following title: ‘Criteria and method of sanction assessment for worker non-compliance with training obligations while receiving extraordinary wage supplements’.
Sanctions for non-compliance
This decree implemented Italian Decree-Law no. 4/2022 as converted into Italian Law no. 25/2022, which states that workers benefiting from suspension or reduction of work activities must compulsorily participate in vocational training or retraining courses, as provided for by Italian Legislative Decree no. 148/2015. Workers who fail to comply with this obligation will be sanctioned, particularly if they do not have a justified reason for non-compliance.
Workers who fail to attend between 25% – 50% of the hours provided for each course without a justified reason will lose one third of their monthly paid salary, subject to, however, the minimum sanction of one month’s salary.
Workers who fail to attend between 50% and 80% of the courses provided will lose half of their monthly overtime payments, again subject to the minimum sanction mentioned above.
Furthermore, workers who fail to attend 80% or more of the courses provided will lose their right to guarantee fund contributions.
The ‘justified reasons’ detailed in the Decree
The decree also recognises justified reasons for waiving the training obligation. These are, for example, illness or accident, maternity, serious documented family reasons and, lastly, situations concerning judicial obligations.
Moreover, the recovery of the allowance does not invalidate the periods of notional contribution, nor does it provide for the repayment of family allowances.
For inspection purposes, as far as the assessments for the purposes of the guarantee fund are concerned, the decree stated that inspectors must check that the training was actually carried out according to the filed company programme.
If unjustified absences of workers without valid reason are found in the records of the body responsible for training, these will be reported to the relevant area National Social Security Entity (Istituto nazionale della previdenza sociale, ‘INPS’[LT1] ) office to proceed with the sanction procedure.
The procedures for recovering undue payments are provided for by the procedures of INPS or the other alternative bilateral solidarity funds provided for in Article 27 of Italian Legislative Decree no. 148/2015.
The ItalianRevenue Agency, in its response to the request for a resolution No 468 of 22 September 2022, clarified a number of points regarding remuneration paid in the year following its accrual, under supplementary collective agreements and the corresponding taxation regime, in accordance with Article 17(1)(b) of the Italian Income Tax Consolidation Act (Testo unico delle imposte sui redditi, ‘TUIR’). The applicant’s enquiry sought clarification on what type of taxation might be applicable in individual cases of late payment arising from the renewal of a supplementary national collective agreement.
Legislative framework
In order to determine the type of taxation to be applied in such cases, the relevant legislation can be found in Articles 17 and 51 of the TUIR that stipulate which income is subject to separate taxation and the so-called cash method of accounting respectively.
Article 51(1) of the TUIR provides, in particular, that ‘employment income consists of compensation of any nature, monetary or otherwise, received for any purpose during the fiscal period, including in the form of donations, in connection with the employment relationship’ determined, for tax purposes, according to the cash method of accounting.
Given the progressive nature of Italian personal income tax (Imposta sul reddito delle persone fisiche, ‘IRPEF’) rates and in order to mitigate against negative consequences stemming from the strict application of the aforementioned method, Article 17(1)(b) of the TUIR provides that ‘arrears in remuneration for employment services rendered in previous years, received as a result of legislation, collective agreements, legal judgments, administrative decisions, or on other grounds beyond the control of the parties’ are subject to separate taxation.
Application of separate taxation – practice
Over the years, the tax authority has issued statements in order to clarify which legal circumstances may satisfy the requirements of Article 17, for the purposes of correctly applying the separate taxation rules. In resolutions No 55/E/2001 and No 43/E/2004, the Italian Revenue Agency laid out two scenarios which may be relevant in practice for the purposes of separate taxation:
The Agency, in its resolution, goes on to explain that the separate taxation regime is not intended to apply when the payment of remuneration in a period subsequent to the accrual period is the result of compliance with the relevant processing requirements, categorising such delays as being of a ‘physiological’ nature. In this respect, variable remuneration, calculated in connection with the attainment of certain objectives on an annual basis and paid in the year following the attainment of the objectives, falls into this category, as clarified by the Italian Revenue Agency in resolution No 379/E/2002. In this case, it is the very nature of the remuneration which entails payment in the following year. Therefore, the application of separate taxation is not permissible because the deferred payment is ‘physiological’, in view of the nature of the payment, rather than arising from a legal basis.
On the other hand, if one of the ‘legal grounds’ provided for in Article 17(1)(b) arises, it is not necessary to make any assessment as to the causes of the delay in order to determine whether said delay may be of a physiological nature. The legislature provides that, irrespective of the nature of the remuneration, it is sufficient that the disbursement take[LT1] place in a fiscal period subsequent to that in which it accrues as a result of the conclusion of a collective or even a decentralised agreement, in order to fulfil the conditions necessary for the application of the separate taxation rules. However, the ‘delay’ must always be investigated when it has arisen from ‘factual circumstances’.
Types of disbursement and related taxation
The applicant’s position is that the supplementary national collective bargaining agreement (contratto collettivo nazionale di lavoro, ‘CCNL’) for the years 2020 and 2021 was entered into on 25 October 2021, which identified (i) the allocation criteria, (ii) the amounts and allowances for employees and (iii) incentive bonuses. As a result of the entering into the agreement, the company will only be able to pay the compensation related to the salary differences from 2022. The position of the Italian Revenue Agency, in line with the above, is that the disbursement is made in a tax period after the reference period where a collective agreement is in place and that therefore separate taxation may be applied.
The applicant also argues that, as a result of the same supplementary CCNL, sums were provided for as ‘fringe benefits’ consisting of different components, including ordinary and variable incentives.
The payment of this fringe benefit is linked to the achievement oforganisational performance targets for the years 2020 and 2021, for which a quarterly review will be carried out to provide for a 15% pro-rata payment on account in May, August, November and March of the following year. The payment of the balances for ordinary and specific incentives will be commensurate with the performance results identified for the entire reference year and paid subsequently.
The Italian Revenue Agency states that, since the contract was signed in October 2021, the amounts relating to the 2020 fringe benefits will be subject to the separate taxation regime. In contrast, with reference to the 2021 fringe benefits, the signing of the contract in the same reference year does not constitute a supervening legal ground that could justify applying separate taxation and therefore the amounts will be subject to ordinary IRPEF taxation.
The fourth on account payment in March of the year following the reference year is paid even if the supplementary CCNL [LT2] for the reference year has not been signed, since the provisions of the most recently signed agreement are considered ‘ultra-active’ [i.e., they continue to apply after its termination date until a new agreement is reached].[LT3] Therefore, since this payment on account is contractually provided for and paid even if the new agreement has not been signed, the Italian Revenue Agency does not consider that it falls within the income to which separate taxation can be applied, given that the delay arises from the nature of the emolument.
In circular no. 106 of 29 September 2022, INPS provided new instructions for working mothers wanting flexible maternity leave or those exercising the right to abstain from work only after childbirth. The two provisions under INPS clarification are contained in Art. 20 and Art. 16 paragraph 1.1 of the Consolidated Law on maternity, Legislative Decree no. 151/2011.
The reference legislative decree, Art. 16, forbids women’s employment two months before the presumed date of birth and three months afterwards. This is without prejudice to Art. 20 below.
In addition to this compulsory maternity leave, the legislation allowed the working mother to use flexible leave i.e., postponing work abstention from a month before the presumed date of birth and having four months’ leave afterwards. In circular no. 43/2000, the Ministry of Labour provided instructions about exercising the right to use flexible leave and stated that “the worker intending to use this option must apply to the employer and institute providing the maternity leave allowance, accompanied by the health certification(s) […] acquired during the seventh month of pregnancy.” In circular no. 152/2000, INPS stated that “the worker intending to use compulsory leave flexibility must submit an application […], accompanied by an NHS gynaecologist certification […] and the occupational physician certification” if the job was subject to health monitoring, verifying that the application was legally compliant and drawn up during the seventh month of pregnancy.
The social security institute specified that, if the health certificates were not drawn up during the seventh month of pregnancy, this would have prevented working in the eighth month meaning the flexibility inapplicability. This would lead to the standard maternity period calculation.
A few years later, the Supreme Court of Cassation, with ruling no. 10180/2013, established that, even if a worker continued to work during the eighth month and submitted the medical certificate after the seventh month, she could qualify for maternity leave until the fourth month following birth and receive the related INPS allowance. The Supreme Court stated that the five-month period option was not available and that a failure to submit the documentation within the deadline could not lead to the loss of any legal provisions.
To counter the increase in administrative and judicial appeals, INPS changed the procedure for requesting maternity leave flexibility to ensure better procedural elasticity and increase protection for working mothers.
INPS specified that the health documentation necessary for maternity leave flexibility, i.e., the National Health Service gynaecologist medical certificate and occupational physician certificate for jobs subject to health monitoring, did not have to be sent to the Institute, but the employer or customer. The worker does not have to attach the employer’s declaration about the physician responsible for workplace health monitoring not being compulsory.
INPS stated that working mothers who applied for flexibility but were denied by the institute can act to have the due allowance for the fifth month of maternity paid due to a delay in the submission of the certificates, net of any statute of limitations.
As an alternative to the standard method to access maternity leave and flexibility, the reference legislation, in Art. 16 paragraph 1.1, provides for “the right to leave only after childbirth and within five months.”
In circular no. 148/2019, INPS provided guidelines on continuing working until the presumed or actual birthdate and specified the medical documentation the worker needed to submit.
In circular no. 106/2022, INPS specified that the medical certificates that must be attached to the online application forwarded to the institute, following the circular publication, don’t need to be submitted to INPS, but are instead sent to the employer before the eighth month of pregnancy.
The instructions contained in paragraph 1.1 of INPS circular no. 148/2019 remain valid. The circular states that:
Pregnant women must send the electronic pregnancy certificate to INPS through the NHS physician or physician acting under an NHS agreement using the electronic channel provided for by INPS circular no. 82/2017.
In note no. 9550 of 6 September 2022, the National Labour Inspectorate explained changes contained in Legislative Decree no. 105/2022 ( “Work-life balance decree, “hereafter the “Decree”) which expanded parent and family caregiver protections and rights.
The Decree introduced Art. 27-bis of Legislative Decree no. 151 of 26 March 2001 (or “Consolidated Law on Maternity and Paternity”, hereafter “TU”), about mandatory paternity leave. This change allows working fathers to abstain from work for ten days. These cannot be divided into hours but can be used non-continuously from two months before the presumed date of birth and within the following five months. This leave is in addition to the alternative paternity leave, governed by art. 28 of the Consolidated Law, to which the father is entitled if the mother dies, suffers serious infirmity or abandons the family, or if the father has exclusive custody of the child, as an alternative to maternity leave.
The National Labour Inspectorate specified the leave:
Resignation, prohibition of dismissal and notice remain in force for the protected period.
Art. 2, paragraph 1, letter i), of Legislative Decree no. 105/2022 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, the mother and father are entitled to a compensable period of three months which cannot be transferred to the other parent. Parents are individually entitled to a further indemnifiable period of three months, for a maximum nine-month collective period (and not six).
The parents’ maximum limits under Art. 32 of the Consolidated Law were unchanged.
The parental leave changes apply to national and international adoption and foster care cases. The 30 per cent allowance is due, for up to nine months, within 12 years from the child’s entry into the family and no later than the age of majority (Art. 36, paragraph 3, of the Consolidated Law).
Under the provision in paragraph 5 of Art. 34 of the Consolidated Law new wording, 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 workplace presence. This is without prejudice to more favourable collective bargaining provisions.
Based on the new regulations that came into force on 13 August 2022, in priority order, the cohabiting spouse is treated in the same way as a cohabiting partner under a civil partnership and a de facto cohabitant of the disabled person in a serious condition under Art. 1, paragraph 36, of Law no. 76/2016.
Leave may be taken within 30 days (and not 60) from the application. Cohabitation may be established after submitting the application, provided that it is guaranteed throughout the leave.
The new Art. 33, paragraph 3, of Law no. 104/1992 as amended by Art. 3, paragraph 1, letter b), no. 2), of the Decree, includes public employees in a civil partnership or de facto cohabitant as those who have the right to leave. When requested, the right to leave can be given to more than one among those listed above which be used individually, superseding the “sole carer” principle. This is without prejudice to a three-day limit for assisting the same seriously disabled person.
As a result of the amendment of Art. 8, paragraph 4 of Legislative Decree 15 March 2015 no. 81, by Art. 5, paragraph 1, letter a) of the Decree, priority was given to the change of employment contracts from full to part-time. This applies to oncological or serious, chronic, ingravescent degenerative illnesses affecting the spouse, or civil partner.
With ruling no. 21773 of 8 July 2022, the Court of Cassation explained the legitimacy of the dismissal for just cause of an employee caught working at the shop owned by her partner during extraordinary leave. The partner was another company employee.
In the second instance, the Court of Appeal of Bologna rejected the complaint brought by the worker, confirming the first instance ruling which rejected her appeal against the dismissal for just cause. The August 2016 dismissal was issued due to the employee working in the shop owned by her partner during extraordinary leave granted to her to assist her severely disabled daughter, under Art. 42, paragraph 5, Legislative Decree 151/2001.
The employee was caught by a private detective, appointed by the employer company investigating her partner, who was also a company employee. The partner was caught working in the same shop, which he owned, during an illness absence.
Following the dismissal and against the rulings of the first two instances, the worker appealed to the Court of Cassation on various grounds.
The employee stated that the burden of proof’s subject for the dismissal’s just cause, which the ruling under appeal considered as fulfilled by the employer, was not identified. The worker complained that the Court of Appeal had a poor critical approach to the various pieces of evidence collected by the employer. She stated that the Court of Appeal accepted “without the necessary critical analysis investigation reports, photos and films, and statements made by the investigators examined as witnesses, without noting their contradictions.“
In the third instance, the Supreme Court held that the grounds advanced by the employee were inadmissible and rejected the appeal. The Court stated that the second instance Court did not consider the above elements as fully probative but assessed them “together with the other evidence “, as suitable for demonstrating the conduct alleged against the worker by dismissing her.