European (& the GCC) Employment Law Update Jurisdiction: Italy Date: August 2015 Impact date Development Impact 25 June 2015 Variations of the duties required of the employee · Legislative Decree no. 81 of 15 June 2015 Under Italian Law, an employees may be classified as falling under a particular category, depending on the activities they carry out and on their level of responsibility. The employee categories are: executive; middle manager; white collar; and blue collar. The national collective bargaining agreements specify and describe the various levels in which the aforementioned categories are divided. Section no. 3 of the Legislative Decree no. 81 of 15 June 2015 ("Section 3") modifies Section no. 2103 of the Italian Civil Code, which regulates variations in the duties required of the employee under their employment contract. According to the above mentioned provision, an employer will be entitled to unilaterally change an employee’s duties, by requiring the employee to perform tasks consistent with their professional qualification and contractual level, but different from the duties for which they were originally hired. The most innovative feature introduced by Section 3 is the absence of any reference to the principle of “equivalence” between the duties originally agreed in the employment contract and the ones unilaterally assigned by the employer during the employment relationship. As a consequence, the employee shall carry out any duties that are consistent with their contractual level and professional qualification, even if these duties are different from the ones that have been agreed in the employment contract. Moreover, in order to avoid dismissal, the employee can be assigned with lesser duties in the following cases: (i) in the case of a reorganization process that have an impact on the employee’s job position and (ii) in any other cases provided by the national collective bargaining agreement applicable to the employee. Pursuant to Section 3 the professional downsizing agreement must comply with the following requirements: (i) the variation of the employee’s duties must be set out in writing and (ii) the employee must be entitled to the same contractual level and remuneration granted to them before the professional downsizing agreement, except for the economic treatments related to specific activities and modalities of performance of their previous duties (such as shift work allowance). Furthermore, it is now possible to enter into a settlement agreement pursuant to Section 2113 of the Italian Civil Code or before the Certification Committee, by which the parties can agree any variation of: (i) the duties (ii) the contractual level (iii) the professional qualification and (iv) the relative remuneration of the employee. These agreements can be entered into between the employee and the employer only in order to avoid the employee’s dismissal and/or in order to guarantee the acquisition of a different professional qualification or the improvement of the employee’s living conditions. Moreover, employees who effectively carry out duties other than those for which they were originally hired (i.e. they take full and direct responsibility for the additional duties which correspond to a higher qualification) for a period of 6 months (the qualification period) are entitled to receive the relevant remuneration and to be allocated in the related higher qualification/level. This provision will not be applicable where the variation in duties is related to the temporary need to substitute an absent employee. 25 June 2015 On-going and coordinate collaborations · Legislative Decree no. 81 of 15 June 2015 The Legislative Decree no. 81/2015 introduces a new protection regime for self-employed individuals. The self-employed worker is a person who undertakes to perform a work or a service, mainly by means of his/her own activity and without a relationship of subordination with the client. The principal characteristics which distinguish self-employment from an employment relationship are the absence of subordination, the requisites of professional competence and the fact that the autonomous worker habitually carries out his/her activities. According to Section no. 2 of the Legislative Decree no. 81 of 15 June 2015, with effect from 1 January 2016, on-going and coordinate collaborations shall be classified as an employment contract and shall be subject to the relevant legislation, if the following requirements are met: - the work activity is performed exclusively by the self-employed worker; - the activity is carried out on a continuous basis; and - the main terms and conditions of the work activity are determined by the employer, with particular regard to the workplace and the working hours. Exceptions are provided for quite specific cases. Namely, the above mentioned rule does not apply to: - on-going and coordinate collaborations whose main economic and contractual treatments are expressly regulated and provided by the collective bargaining agreements entered into by the trade unions more representative on a national level; - professionals that are members of specific registers, rolls and associations; - the work activities performed by members of Board of Directors and Supervisory Bodies; and - the work activities carried out for institutional purposes, in favour of the associations and amateur sports associations affiliated to the national sports federations and other similar associations. In all the other cases, the on-going and coordinate collaborations executed by a self-employed worker on a personal and continuous basis and whose main terms and conditions are determined by the employer shall be subject to the legislation provided for employment relationships. 25 June 2015 Work-on-project agreements · Legislative Decree no. 81 of 15 June 2015 The work-on-project contract is a form of self-employed relationship regulated by Legislative Decree no. 276/2003 (and further amendments), entered into only for the performance of one (or more) specific project(s) strictly connected to the achievement of a specific result. According to Section no. 52 of the Legislative Decree no. 81 of 15 June 2015, it will not be possible to enter into a work-on-project agreement as of 25 June 2015 and the provisions provided by Legislative Decree no. 276/2003 shall be applied only to the work-on-project agreements entered before 25 June 2015. 25 June 2015 Requalification of self - employment agreements into employment agreements · Legislative Decree no. 81 of the 15th June 2015 According to Section no. 54 of the Legislative Decree no. 81 of 15 June 2015, in order to promote open-ended employment relationships as the main type of employment agreement and to guarantee the correct use of self-employment contracts, as of 1 January 2016 employers who hire self-employed workers with a VAT number and/or project workers with an open-ended employment agreement will not be subject to the fines related to social security, fiscal and insurance payments due to the requalification of self-employment agreements into employment agreements. The above mentioned provision will apply only if the following requirements are met: - if the employees interested in the above mentioned requalification of their selfemployment contracts enter into a settlement agreement pursuant to Section 2113 of the Italian Civil Code or before the Certification Committee, by which they waive all and any claims or other rights of action whatsoever and howsoever related to the requalification of their previous contract; and - if, except for the cases of just cause or justified subjective reasons, the employer does not terminate the employment relationship with the employee for a period of 12 months from the hiring date.