Company transfer and change in flat rate overtime to monthly allowance

The Supreme Court of Cassation, with its ruling no. 24145 of 30 October 2020, confirmed that, in the event of transfer of a company, the worker has the right to maintain the distinctive component of remuneration included in the individual employment contract.

Facts of the case

The Court of Appeal of Catanzaro upheld the appeal filed by a worker, with the qualification of anaesthesiologist, who transferred to employment with another company due to a company transfer.

Specifically, the worker, had claimed his right to maintaining the distinctive component of his remuneration (called “EDAPR”) attributed to him by the transferor and used for more than a decade (from 4 January 2001 to 27 May 2011), asking, based on this, to sentence the transferee to pay the sums due for this purpose during the period from 27 May 2011 to 31 January 2015.

On this point, the District Court had considered that (i) the worker be accredited with the amount for “EDAPR” as a flat rate payment for any overtime work performed (so-called “flat rate overtime”) and (ii) the same if it was transformed, over the course of employment, into an extra allowance constituting an integral part of the worker’s remuneration.  

Thus the local court had recognised the right to maintaining the distinctive component of remuneration and seniority matured by the worker as a correct application of art. 2112 Italian Civil Code, when it provides that the transferor’s employee maintains all of the rights resulting from the original employment, excluding, at the same time, the impossibility of referring to paragraph 4 of the same article as a foundation for unilateral changes of employment by the transferee.

Objecting to the lower court’s ruling, the losing company appealed to the Cassation Court.

The Supreme Court of Cassation’s ruling

The Court of Cassation, in rejecting the company’s appeal, reiterated the particularities contained in art. 2112 of the Italian Civil Code confirming verbatim that it “guarantees in favour of employees of the employer that transfers the company or its business unit the guarantee of maintaining all of the rights resulting from employment with the transferor and aimed at protecting credits the worker already matured and compliance with the treatments in effect”.

Moreover, the Supreme Court also pointed out how in the case in hand the compensation was correctly identified as remuneration functional to the overall job and that “the flat rate compensation of the service rendered beyond normal work hours granted to the worker for a long time, where not correlated to the presumable amount of overtime rendered, is an allowance that, over time, assumes a different function from the original one, typical of overtime compensation, and becomes a monthly component that is part of ordinary remuneration and not unilaterally related to the employer”.

According to the Court, the employer can opt for recognition of a flat rate compensation – all-included and not restricted to the number of hours actually worked beyond normal hours – aimed at paying the worker for services of an overtime nature. The relative amount is not the consequence of a final measurement of the overtime hours performed multiplied by the relative increases. Its measurement is determined beforehand based on an agreement between the parties to compensate a number of overtime hours that are “presumed” to be rendered through constant delivery over time.

This remuneration, thus becomes an ordinary component of the worker’s pay and cannot be unilaterally revoked by the employer.

With these motivations, the Court of Cassation rejected the appeal submitted by the employer, sentencing it to pay court costs.

An employer forced to dismiss has the right to reimbursement of the NASPI ticket

The Court of Udine with its ruling no. 106/2020, confirmed that an employer that is forced to dismiss an employee for unjustified absence has the right to withhold from the post-employment benefits due to the same the amount paid to INPS for the purposes of unemployment tax (known as “NASPI ticket”).

Facts of the case

In the specific case a worker orally indicated to the employer’s legal representative his intention to resign due to his father’s health problems and asked to be formally dismissed in order to obtain monthly unemployment benefits, i.e. NASPI.

After being refused, the worker threatened to remain absent from work. Despite this, the company decided to grant him a lengthy period of holiday in order to help his father. Once the holiday period ended the worker did not return to work and did not justify his absence in any way despite repeated requests.

Due to the continuation of the unjustified absence, after having attempted the disciplinary procedure as per art. 7 of Italian Law 300/1970, the company dismissed the worker for just cause. But there is more. The company then also withheld the amount of the dismissal tax due to INPS from the amount owed for post-employment benefits as well as other sums as compensation for damages sustained due to the employee’s failure to perform his job.

The worker submitted an appeal for injunction in order to have the sums withheld returned to him expecting that the unilateral decision to terminate employment would have been made by the employer.

The company objected to the injunction handed down against it so it would be revoked. The worker challenged it asking for rejection of the appeal submitted by the same and, thus confirmation of the decision in question.

The Court’s decision

The Court’s opinion was adequately proven, within the performed inquiry, that the decision to termination employment was taken unilaterally by the worker. He – faced with the company’s refusal to proceed with the requested dismissal – had, deliberately remained absent in order to be dismissed.

Therefore, according to the Court, “the expenses sustained by (editor’s note by the company) to carry out (involuntarily) the decision to withdraw made by the worker can only be borne by him and, specifically, the (editor’s note the worker) shall be required to pay the plaintiff the sums it spent for the purpose of the so-called dismissal ticket. The so-called dismissal ticket is an expense that the (editor’s note the company) had to sustain exclusively because the (editor’s note the worker), instead of resigning, without costs for the company, deliberately placed it in a position of having to terminate the employment relationship”.

In consideration of the above, the Court revoked the injunction issued against the opponent and verified, in terms of what interests us, the existence of credit of the same for the amount of the dismissal ticket, since the withdrawal is attributed to the employee’s omissive conduct.

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The ruling in question (no precedents have been found to date) basically reaches the conclusion whereby the employer, forced to dismiss a worker for unjustified absence, has the right to compensation for the damage sustained and corresponding to the amount of the NASPI ticket paid to INPS.

 

Transnational posting: Italy adopts the new European legislation (Andrea Di Nino, Sintesi– Ordine dei Consulenti del Lavoro, November 2020)

Italian Legislative Decree no. 122/2020, published in the Official Gazette no. 229 of 15 September 2020, adopted the EU Directive 2018/957 concerning transnational posting: the new provisions are contained in Legislative Decree no.  136/2016, the current reference for this institution in the Italian legal system, where a series of amendments were made.

The intention of the European government – right from the first measures made on the matter – are aimed at the various cases of transnational posting in order to prevent and eradicate distortive phenomena of the EU job market, such as dumping and unlawful temporary employment.

Examining the new provisions established by the Legislative Decree no. 122/2020 there appears to be a general tightening of the regulations, made stricter in terms of numerous areas of interest.  First of all, it is possible to see how the legislation’s field of application has been expanded: in particular, the regulations regarding transnational posting are also applied to posting cases that are more complex, such as those by temporary employment undertakings or placement agencies, which in the past were excluded from the regulations.

More specifically, this is the case of temporary employment undertakings or placement agencies located in another Member State different from Italy that, for transnational provision of services, post workers to their own production unit or to another company, including belonging to the same group, with registered office in Italy to then hire them out to Italian user companies. In this case, the new legislation has established that workers in these situations are to be considered as posted in Italy directly by the temporary employment undertaking or placement agency with which they have an employment relationship.

Moreover there is a precise information obligation for the Italian user company to inform the posting temporary employment undertaking about the working and job conditions that need to be applied to the posted workers.

The legislative decree under review also clarified how – in terms of guaranteeing a complete protection of the rights and working conditions – the posted workers must be recipients of the same rules and guarantees applied to workers of the destination country. For this purpose, the text of the decree contains a clear list of matters where the Member State laws where the job is performed must be applied, if they are more favourable.

For example, the law states institutions such as maximum work periods and minimum rest periods, the minimum paid annual leave, remuneration, including increases for overtime, health, safety and hygiene at work, etc. Specifically referred to remuneration institutions, the items that compose individual remuneration must be perfectly separated and identifiable in order to discourage payment of simulated reimbursements, with the sole purpose of getting around social security contribution payment obligations on the actual remuneration received by the worker.

The Government’s intervention also involved the maximum posting duration: specifically, the maximum duration of 24 months is reduced to 12, with the possibility of a 6 month extension subject to motivated notice to the Ministry of Labour and Social Policies. The legislation now states that once this period has elapsed and the concerned worker has not returned from the posting, all of the work and employment conditions provided for in Italy under the law and regulatory provisions and under the national and territorial collective bargaining agreements, save for those concerning the procedures and the conditions for ending and terminating the employment agreement, non-compete clauses and sector supplementary pension schemes, shall be automatically applied. This overall maximum duration also refers to the case where one or more posted workers are replaced to perform the same duties in the same place. The identity of the duties performed by the workers is assessed case by case, also taking into account the nature of the service provided, work to perform and place where the job is performed.

Source: Sintesi

Inclusion of university years for calculation of social security paid by the employer as an incentive for leaving early: opinion of the Italian Tax Authority (Agenzia delle Entrate) – (Norme & Tributi Plus Diritto de Il Sole 24 Ore, 17 November 2020 – Andrea Di Nino)

In Norme & Tributi Plus Diritto of Il Sole 24 Ore, an article written by our employment advisor Andrea Di Nino on the opinion of the Italian Tax Authority, intervening regarding the tax treatment applied to the social security contribution paid by the employer to INPS for the university years of some workers involved in a trade union agreement to incentivise leaving early. The article can be downloaded here by subscription.

Read more in the downloadable subscription article by Norme & Tributi Plus Diritto de Il Sole 24 Ore.

 
 

HR VIRTUAL BREAKFAST “Ristori and Ristori bis Decree: opportunities and critical issues for enterprises” (HR Capital – De Luca & Partners, 19 November 2020)

The HR Breakfasts of De Luca & Partners are returning to webinar mode.

Last 19 November, HR Capital and De Luca & Partners organised the HR Virtual Breakfast with a technical and legal focus on the latest developments in employment.

Our Employment Advisor Nunzio Lena and Alessandra Zilla, Senior Associate of De Luca & Partners took stock of the situation on the recent emergency decrees with the moderation of the Managing Partner of De Luca & Partners, Vittorio De Luca.

The event was held from 9:00 am to 10:00 am using the Zoom platform.

AGENDA:

  • Ban on dismissals
  • Smart-working and extraordinary leave
  • Social safety nets
  • Contribution exemption
  • Suspension of payments

Attendance is free subject to registration

For information: comunicazione@hrcapital.it

 

Ristori Decree: help for employers

Following the evolution of the coronavirus situation, the government approved a new decree containing help for companies and workers.

Specifically. Italian Law Decree no. 137/2020, also called the Ristori Decree, strengthens the wage guarantee schemes and wage integrated fund, which will be available to companies for 6 additional weeks from 16 November 2020 to 31 January 2021, as long as they already benefited from the 18 weeks allocated by the August Decree. Moreover, it introduces a new contribution exemption for companies that have used social safety nets for the COVID-19 emergency in the month of June and do not intend to use these additional 6 weeks.

The decree also introduces the suspension of INPS contribution and INAIL premium payments for employers effected by the restrictive measures of the DPCM of last 24 October, such as bars/cafes, restaurants, cinemas and theatres: thus these employers may make payments due in November 2020 by 16 March 2021 or, alternatively, in 4 instalments starting from the same date.

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