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.
INPS with circular no. 88 of 25 July 2022, provided operating instructions on the expansion contract, as amended by Law 234/2021 (“Budget Law 2022“).
The experimental scheme for stipulating expansion contracts has been extended until the end of 2023. This imposes a minimum limit of at least 50 work units, calculated as a total in cases with a stable aggregation of companies with a single production or service purpose.
The expansion contract guarantees workers who are less than five years from retirement an early exit from the labour market by receiving a monthly allowance equal to the gross pension accrued at the time of termination. The allowance may be paid to workers enrolled in the employee fund or similar funds hired under an open-ended contract, provided they wish to terminate their employment by 30 November 2023. Workers who wish to access an old age pension with different requirements from the ordinary (e.g., “Opzione Donna” early retirement) are excluded.
The allowance is paid until the first fulfilment of the requirements for pension entitlement, whether old age or early retirement and until the related contribution requirement is met.
Only one annual early retirement plan may be submitted for each year in 2022 and 2023.
Early retirement plans must specify the maximum number of workers involved, the assumed date of employment termination, which is the same for all workers, and the early retirement date, which may not be later than 30 November, for each year.
The employer must obtain a bank guarantee to apply to INPS to fulfil contribution obligations. The amount due to the Institute must be increased by a variable portion of at least 15 per cent, depending on later decisions adopted by the Institute.
At the end of the early retirement plan, INPS will carry out a final check, disbursing any refunds or requesting further sums from the employer.
The employer must send the following documentation to the local INPS office:
1) copy of the expansion contract signed at the Ministry of Labour and Social Policies;
2) the request for the accreditation and modification of the monthly allowance ( Form SC96);
3) the application for authorisation to access PRAT (portal for atypical services) for personnel or the delegate identified by the employer to use the program. This application must be submitted at least 90 days before the entry date.
INPS stated that for annual early retirement plan purposes, submitting several applications for entitlement certification which is 20 per cent more than the number of workers specified in the expansion contract is not permitted.
In answer no. 405 of 2 August 2022, the Inland Revenue clarified the rules for taxation for allowances for employees using their private means of transport to travel outside the municipality where the company is based.
The relevant legislation can be found in Art. 51, paragraph 1, of the TUIR which describes employment income as ” sums and values, received during the tax period, including employment-related donations”. This regulatory extract describes the all-inclusiveness principle which includes sums and values received by the employee connected to the employment relationship, including expense reimbursements, net of the exceptions under the following paragraphs of the same article, in the employment income.
Paragraph 5 of Art. 51 of the TUIR regulates the tax regime of the allowances paid to the employee for transfers , outlining two different taxation regimes depending on whether the services are performed within the municipality where the usual place of work is located.
If services are performed:
In Circular no. 326/1997, the Ministry of Finance clarified that, unlike expenses incurred for journeys made by public transport (e.g. air or rail) which can be documented by showing the relevant tickets, the expenses for journeys calculated using the employee’s private means, must be quantified by the employer based on direct and indirect concordant elements.
In its 30 October 2015 resolution, no. 92/E, the Inland Revenue clarified that:
Under specific service requirements, the applicant authorises employees to use their private means of transport to carry out journeys. An allowance to compensate for the expenses incurred will be paid only if journeys are outside the municipality. This allowance must be equal to the expenses the employee would incur if they used a public means of transport and is paid based on the analytical consideration of the costs incurred. The allowance paid is in lieu of the expenses directly incurred by the employee using their own means of transport for the journey.
The applicant attached to the request for an opinion the internal circular on the compensation methods, which states that “the use of private means of transport may take place only if there are specific and exceptional service requirements and under the following conditions:
The circular states that the employee will obtain insurance cover from the company if they decide to use their private means of transport even if one of the above cases does not apply. The employee will not be entitled to compensation.
The Inland Revenue said that compensation based on public transport fares if it is equal to or lower than the amount calculated based on the ACI tables is non-taxable.Such allowance will not be included in the taxable base for the employment income calculation.
When the travel allowance, calculated based on the public transport tariffs is greater than that based on the ACI tables, the difference must be considered as employment income under Art. 51 of the TUIR and is a taxable base for income and relevant taxation calculation purposes.
With ruling no. 19623 of 17 June 2022, the Court of Cassation decided on compensation for personal injury and non-pecuniary damage caused by a worker’s prolonged exposure to asbestos. The heirs of a worker who died due to an illness associated with exposure to toxic material, complained about the employer’s liability under Art. 2087 of the Italian Civil Code for not having implemented the necessary prevention and protection measures in the workplace.
This case showed that the worker was subject to two different carcinogenic agents: smoking, as he was a habitual smoker who for years smoked 15-20 cigarettes a day, and asbestos exposure, as he worked as a welder.
When calculating the pecuniary damages, the Court of Cassation upheld the interpretation of the Court of Appeal, which, in the second instance, pointed out that there was a concurrence of harmful causes that resulted in a single and indivisible event. Considering a twofold causal factor, the Court decided to apply the principle of equivalence of concurrences under Articles 40 and 41 of the Italian Criminal Code, since it was impossible “to make a causal allocation between the two carcinogenic factors, equally responsible for causing the harmful event.”
Since it was impossible to make a correct causal allocation between the two carcinogenic factors, they must be held equally responsible for having caused the syndrome. This meant that party liability was unaffected, but damage calculation will be heavily reduced compared to the family’s claim.
As the second ground of appeal, the heirs requested compensation for non-pecuniary damage, arguing that the worker was aware that he was exposed to a pathogen and that many colleagues got oncological severe illnesses, often leading to death. This caused uncertainty about his own life, worsening his quality of life and inducing him to undergo numerous and periodic medical check-ups. They claimed that this caused the worker to be concerned about falling ill and probably dying.
In the second instance, however, the Court of Appeal denied the heirs recognition of non-pecuniary damage due to a lack of non-pecuniary or existential damage, holding that rebuttable presumptions, were inapplicable and that the non-pecuniary damage had to be proven.
However, as already clarified by the Labour Section in ruling no. 24217 of 2017, the Supreme Court overturned the second instance decision, holding that ” damages resulting from the disruption of the everyday lifestyle can be compensated regardless of documented biological damage, when it refers to the impairment of the right to the normal conduct of life and the right to the free and full expression of one’s daily life habits. These are constitutionally guaranteed and supported by the European Convention on Human Rights, Art. 8. The Court stated that proof of the prejudice suffered can be provided by means of presumptions.”
It followed from this case law that biological damage due to a disruption of normal private life and constituting “an internal suffering of the person” took the form of “injury to inviolable personal rights, which were under constitutional protection.” If this was submitted and proved including by using presumptions, it would provide entitlement to compensation for damages.
The National Labour Inspectorate (“INL“), with note no. 1451 dated 11 July 2022, provided some clarifications on the applicability of the penalties under Art. 1, paragraph 73, of Law 234/2021 ( Budget Law 2022) to extracurricular internships begun before 1 January 2022 and continued afterwards, and contribution recoveries deriving from fraudulent internships.
INL explained the concept of the permanent nature of an offence. Its Note 3/2019, which referred to a fraudulent provision, highlighted how the offence was characterised by “an intent to circumvent contractual or mandatory rules that found its existence in an appreciable continuity of the unlawful action. The permanent nature of the offence implies its duration throughout the provision, its end coinciding with the cessation of the conduct, which is relevant to identify the applicable rule and the statute of limitation.”
From 1 January 2022, a fraudulent extracurricular internship is an offence of a permanent nature, punished under Art. 1, paragraph 723 of the Budget Law.
To prove fraud, it is necessary to prove that the internship was a true employment relationship.
Based on these principles, INL stated that continuing or ending a fraudulent extracurricular internship after 1 January 2022 entails the application of the penalties set out in paragraph 723 of Art. 1 of the Budget Law. This provision states that the “internship is not an employment relationship and cannot be used as an employment replacement. If the internship is fraudulent, circumventing the regulations set out in the previous sentence, the host party shall be fined € 50 for each intern involved and each day of internship, without prejudice, at the intern’s request,” to the verification of the existence of an employment relationship from the time of the court ruling,”
The administrative penalties normally applicable to employment relationship re-qualification (failure to report the establishment of the employment relationship and inability to deliver the employment declaration) do not apply to the fraudulent internship.
This is without prejudice to recognising the existence of an employment relationship at the intern’s request from the time of the court ruling. INL referred to Circular 530, stating that the intern will assess such a request “which will affect the internship relationship (…) since its establishment, even if it occurred before 1 January 2022.”
According to INL, this does not apply to social security profiles and consequent contribution recoveries related to the internship, which simulated an employment relationship. This is because the recovery of contributions cannot be considered conditional upon the worker’s choice to take the matter to court to obtain the recognition of the employment relationship with the host.
In its answer to question no. 383 of 18 July 2022, the Inland Revenue clarified the option to extend the regime provided by the “Decreto Crescita” for repatriated workers.
Article 5, paragraph 2-bis of Decree Law no. 34/2019, the Decreto Crescita, by amending Art. 16 of Italian Legislative Decree no. 147/2015, stated that the provisions of the special tax regime for “repatriated” workers “are applicable for a further five tax periods to workers with at least one minor or dependent child, including in pre-adoptive foster care” or if “workers become owners of at least one residential property unit in Italy, after the transfer to Italy or in the 12 months before the transfer.”
The benefit applies to those who had transferred their residence before 2020 (the regulatory provision starting date) and who, as of 31 December 2019, benefited from the repatriated workers tax regime under Article 16 above. This is subject to the payment of 10 per cent (or five per cent in some instances) of the taxable employment and self-employment income produced in Italy and relating to the tax period before the option was exercised.
The payment methods and deadlines were established by the Inland Revenue with order no. 60353 of 3 March 2021, by which the amounts must be paid, in a single instalment, using the F24 payment form by 30 June following the last year of the first five-year benefit period.
The applicant, had already transferred residence to Italy before 2020, and notified the Inland Revenue of:
The applicant requested to use the voluntary settlement to pay the additional amounts due late and benefit from the five-year extension of the repatriated workers regime.
The Inland Revenue, based on the clarifications provided in Circular no. 33/E of 28 December 2020, stated that (i) the option is subject to the payment within the deadline under the Agency Director’s Order (Ref. no. 60353/2021) and (ii) those (as in this case)for whom the first period to use the benefit ended on 31 December 2020, the payment had to be made within 180 days.
The tax authority stated that – if the payment of the amounts due was omitted or deficient, the benefit could not be applied. A voluntary settlement was not allowed for this case.
The Agency said that the applicant could not benefit from the favourable repatriated workers regime for additional five tax periods because of the incorrect payment but may recover the sums paid under Art. 21 of Legislative Decree 546/1992.
In its 26 May 2022 ruling, The Court of Udine outlined a resignation by conclusive facts case and the “electronic resignation” procedure under Article 26 of Legislative Decree no. 151/2015.
The case involved a female worker who took time off work for a prolonged period, from 14 December 2019 and for more than six months afterwards, without any justification. The employer issued the worker with a letter sent on 12 June 2020 formally inviting her to resign. When the worker’s failed to respond, the mandatory “Unilav” employment termination notice due to resignation was sent to the Employment Centre on 8 July.
This termination was contested by the worker, since she had never submitted her resignation, or the electronic validation required by law. At the same time, she declared herself willing to return to work, subject to reimbursement of accrued remuneration and the relevant social security contributions due for the months that had elapsed from the time of her absence until her reinstatement.
The worker justified her prolonged absence as down to “psychophysical prostration” due to the assignment by the employer of “burdensome” tasks of food delivery in certain municipalities.
The employer objected stating that the employment relationship had been terminated by the sole will of the worker, due to conclusive facts consisting of unjustified absence for more than six months. This was corroborated by the assertions expressed by the worker to her unit manager, consisting of her intention to no longer return to work following the holidays, which began on 9 December 2020, because of her dissatisfaction with her work.
According to the employer, the worker’s stated intention was to provoke the employer’s termination and obtain the Naspi benefit.
The court found that it was uncontroversial that the worker had voluntarily absented herself from work continuously from 14 December 2019, without providing any justification and without replying to the employer’s letters for more than six months.
Despite the 31 December 2019 disciplinary notice, in which the worker was charged with unjustified absence since 14 December, and the 12 June 2020 letter, in which the employment termination was acknowledged “as a matter of fact ” and the worker was invited to “resign under the applicable electronic procedure,” the employee remained silent, confirming that she had not voluntarily responded to those notices due to a lack of interest.
The worker urged her unit manager not to assign her any shifts over the Christmas period, as she “did not think she would return” and expected the company, to “dismiss her.”
It was clear to the judge that the worker “wanted to terminate her employment with the company […] on her own initiative, having made this intention […] clear to her manager and not having returned to work after the holidays.” Besides the validity of the employee’s grounds, defined as “late and rather generic”, the court observed how “these reasons were a clear and further sign of the plaintiff’s intention […] to terminate her employment.”
Despite the legislative change that took place in 2015 on resignation and consensual employment termination, the court further observed how the employment contract termination by mutual consent and especially resignation was based on Articles 2118 and 2119 of the Italian Civil Code, which lay down the general rule of the worker’s right of “free withdrawal”, subject to notice. This free withdrawal right was unchanged, so the ruling shows that “resignations may continue to be valid, at least in specific cases, even as a result of prerequisites other than the electronic formalisation imposed by the 2015 amendment.”
The court highlighted how the Delegated Law no. 183/2014 included “simplified methods to ensure an exact date and the authenticity of the worker’s will to resign or consensually terminate the employment relationship. This ensures the certainty of the relationship termination for cases of “conduct implying an intent” by the worker […]”.
Such an aside was unimplemented in Legislative Decree no. 151/2015, the content of which seems to be unenforceable in cases of resignation by conclusive facts.
It was deemed unreasonable to consider that the employment could be terminated through a dismissal for just cause, if the worker did not resign due to inertia. This would affect the “free exercise of entrepreneurial independence” under Art. 41 of the Constitution, in terms of risks (justification in a hypothetical trial) and costs (Naspi contribution). The consequence would be an “unjust loss of resources” to be destined to those workers who are entitled to Naspi because they are involuntarily unemployed. Considering the above, the worker’s claim was rejected, and the employment relationship was definitively terminated.
In its message no. 2622 of 30 June 2022, INPS provided clarification on the provisions of Article 10, paragraph 1-bis, of Decree Law no. 24/2022, converted, with amendments, by Law no. 52/2022.
The above law further extended the protections introduced after the COVID-19 pandemic for “vulnerable” workers until 30 June 2022. It introduced substantial changes for the categories of workers who are beneficiaries of the protection originally provided for in Decree Law no. 18/2020.
For rule implementation purposes, reference should be made to Ministerial Decree no. 5 of 4 February 2022, issued by the Ministry of Health in agreement with the Ministry of Labour and Social Policies and the Minister for Public Administration.
The decree, entitled “Identification of chronic illnesses with a lower level of clinical compensation and implications of severity, for which work is normally carried out in remote working until 28 February 2022”, modified the list of chronic illnesses for which work must be carried out in remote working.
The measure establishes, as a rule, the right of workers included in the list, to:
Only where it is impossible to guarantee the above, vulnerable workers may benefit from periods of sick leave which is treated the same as hospitalisation.
The provision modifies the criteria for identifying those entitled, specifying that the protection is provided “exclusively to those affected by the illnesses and conditions identified by the decree of the Minister of Health adopted under Article 17, paragraph 2, of Decree Law no. 221 of 24 December 2021, converted, with amendments, by Law 19 February 2002, no. 11″.
To benefit, it is necessary to possess a certificate issued by local medical-legal bodies attesting to “a condition of risk deriving from immunodepression, oncological illnesses or life-saving therapies” or the “recognition of a disability with implications of severity under Article 3, paragraph 3) of Law no. 104 of 5 February 1992.”
For the period from 1 April to 30 June 2022, INPS will recognise the protection, subject to the assessment of the medical-legal offices, for the categories identified under Ministerial Decree no. 5/2022 and within the expenditure limit of € 3.7 million.
In its answer to question no. 344 of 23 June 2022, Inland Revenue ruled on the tax liability of amounts paid under a settlement agreement. In this case, the amount was compensation made by an employer to settle a long-standing dispute with several employees. This disbursement, which related to entitlements due for 2010, 2011, and 2012, was considered by the employer as subject to separate taxation and requested confirmation from the Inland Revenue.
In its reply, the tax authority provided a civil law definition of the settlement as being “the contract by which the parties make mutual concessions, to put an end to a dispute that has begun or prevent a dispute from arising. Mutual concessions may create, modify or terminate relationships other than the one that was the subject of the parties’ claim and dispute” (see Art. 1965 of the Italian Civil Code).
In line with what was clarified by the Ministry of Finance in Circular no. 326/1997, Inland Revenue specified that “indemnities and sums or values received in lieu of employment income, including those arising from any settlement, are taxable as employment income.”
After the question’s reply, appropriate considerations followed regarding the “comprehensive” nature of employment income, consisting of the “total taxability of everything the employee receives in connection with the employment relationship.” On this point, Article 49, paragraph 1, of the TUIR was cited, according to which:
The same Circular of the Ministry of Finance includes the separate taxation scope of application. The Circular clarified that “the sums and values received, net of legal fees incurred, even as compensation or as part of enforcement, following judicial orders or settlements relating to employment termination are subject to separate taxation”, under Article 17, paragraph 1, letter a), last part, of the TUIR.
It was stressed that separate taxation applies when there are “arrears in remuneration for employee services referable to previous years, received because of laws, collective agreements, rulings or administrative acts or other reasons beyond the parties’ control” under Article 17, paragraph 1, letter b) of the TUIR. This occurs if the sums in lieu of employment income relate to income that should have been received during a tax period, and are received in a later tax period, as a replacement.
As clarified in the above document, the sums and values received because of settlements, other than those relating to the employment termination, where none of the conditions set forth in Article 17, paragraph 1, letter b) apply, are subject to ordinary taxation.
Considering the regulatory and procedural framework described above, the Inland Revenue held that the sums paid by the applicant following the settlement agreement must be included in the employee taxable income for their full amount and subject to ordinary taxation. This is because their payment is not related to the employment termination, nor do any of the conditions set forth in Article 17, paragraph 1, letter b) of the TUIR apply.
In its ruling no. 16562 of 29 April 2022, the Court of Cassation decided on the employer’s occupational safety responsibilities for the risk assessment and workers’ training obligations.
The case originated from the sentence of a private employer to one year’s imprisonment for “aggravated manslaughter”, due to the violation of the regulations on the prevention of accidents in the workplace. This was confirmed on appeal. According to the local court, these violations had caused the death of a worker, who had been entrusted with the maintenance and cleaning of a specific machine.
In challenging the second instance ruling, the defendant presented several grounds of appeal. He contested the “employer” qualification assigned to him in the rulings, arguing that he had been assigned administrative tasks (“ordinary administration”) by the company’s Board of Directors.
The defendant stated he had delegated the safety at work functions to a third party, and that he was not liable for the failure to update the risk assessment document (“DVR”), considering his lack of the status of employer.
However, the Court of Cassation judges identified him as the employer, given his role as company legal representative and his prerogatives in the exercise of decision-making and spending powers. The defendant’s argument concerning the exclusion of responsibility for workers’ safety, due to the ordinary tasks formally assigned to him, was rejected. According to the Court, the defendant’s attributions were such as to guarantee him the exercise of “functional organisational, decision-making, managerial and spending powers, including the implementation of safety measures under the law”, which “gave him a combination of the obligations related to risk assessment, guarantee, and employer’s duties.”
According to the Supreme Court, the confusion between the employer and “prevention and protection service manager” (“RSPP”) roles created “a culpable opacity and organisational dysfunction”, which aggravated the defendant’s position.
The de facto powers exercised by the defendant, “although formally limited to ordinary administration, included every managerial and organisational profile on production, plant control, work procedures, training and information that practically played a decisive causal role in the fatal event.”
From this full employer qualification, the responsibility for the other two contested obligations for the specific negligence and material causality consequently emerged.
According to the Supreme Court, the failure to carry out a complete and exhaustive assessment of the risk connected to the plant where the victim worked is a task that, “on an operational, cognitive, and planning level”, was fully within the defendant’s duties. This is because he was the prevention and protection service manager formally, and a top manager with decision-making and organisational powers over the entire production activity.
The Court observed that “the defendant should have assessed risks and prevention measures on the use of the machinery where (omissis) died, related to the duties and tasks assigned to the victim by the defendant.”
In his capacity as employer, the defendant should have kept the risk assessment document up to date, including the task to which the injured worker was assigned for the machinery.
The Court observed that “the dual role of prevention and protection service manager and employer gives rise to the task of assessing, processing, preventing and managing the risk, including updating the risk assessment document. This is an employer’s duty which cannot be delegated.”
In conclusion, according to the Court of Cassation, the qualification of employer corresponds to “the duty to train and inform workers” which, in this case, was omitted by the defendant. Ascribing to another person the duty to inform and train the deceased worker, constitutes “a mere assertion that is not reflected in any formal act of delegation or specific training assignment.”
Even if he had instructed others to fulfil the obligation to train the deceased worker, the Supreme Court pointed out that “the failure to manage the worker’s training and professional instruction could and should have been controlled and corrected by the defendant if other persons who may have been instructed had not done so.”
The defendant’s grounds of appeal were rejected entirely, since the failure to exercise supervision, control and management of professional training on the use of the machine and related equipment for specific risks was established.
In its answer to question no. 294 of 24 May 2022, the Inland Revenue clarified the employers’ ability to reimburse employees belonging to the “transferred employees” category for the expenses incurred for the purchase of laptops/tablets and entrance tests taken by their children to attend Italian educational institutions. In the answer provided, this reimbursement was particularly relevant when calculating income under Article 51, paragraph 2, letter f-bis, of Presidential Decree no. 917 of 22 December 1986 (Consolidated Law on Income Tax or “TUIR“).
Regulatory references
Art. 51, paragraph 1 of the Consolidated Law on Income Tax (TUIR) defines the all-inclusiveness principle, based on which “all sums and valuables in general, received for any reason during the tax period, including as donations, related to employment” constitute employment income.
Accordingly, cash and values corresponding to the goods, services and works offered by the employer to its employees are considered taxable income and are included in the employment income calculation.
However, the same Article 51, in the following paragraphs, identifies the income components that derogate from the all-inclusiveness principle and are not part of the employee’s income taxable base. Paragraph 2 provides that the following is not part of the employment income:
Considering the above and the issues clarified by the tax authority in its resolution no. 37/E of 27 May 2021, it was specified that the legislation made it possible for the employer to provide education and instruction services, directly or through third parties, and pay employees for the purposes specified, by reimbursing the expenses incurred for family members under Article 12 of the TUIR.
Disbursement conditions
For the sums and values in question to be, in whole or in part, de-taxed, it is necessary that the offer be addressed to “all employees” or “categories of employees.”
“Categories of employees” means that general works, services or sums are available to the same group of employees, even if some do not benefit from them.
The Agency stated that the expression “categories of employees” is not intended to identify the categories provided for by the Italian Civil Code (managers, workers, etc.). The wording refers to employees of a “specific group”, such as, employees of a certain level or qualification, employees transferred abroad or night-shift workers.
It was repeatedly specified that the conditio sine qua non for the exclusion of these benefits from the income calculation is that they cannot apply to individual employees or ad personam (see Inland Revenue Circulars 23 December 1997, no. 326 and 15 June 2016, no. 28/E).
The Inland Revenue recalled:
Conclusions
According to the Inland Revenue, the reimbursement by the employer of expenses incurred by employees who fall into the “transferred employees” category for the purchase of laptops/tablets, is not part of the employment income. The reimbursement of enrolment costs for child entrance tests for enrolment in educational institutions does not generate employment income. This is because such reimbursement may be part of the expenses incurred for school attendance.