On 23 July 2016, the so-called “Legge Europea” came into force, which amends certain provisions of Italian law to bring them into line with Community law.
With particular reference to labour-law issues, amendments were introduced with respect to training obligations in the maritime sector and the rights of workers in case of takeover by a new contractor.
Article 24 (paragraphs 6- 10) introduces some novelties regarding the indirect mode of fulfilling training requirements in respect of the tonnage tax regime. Indeed, Article 157 of TUIR (Italian Consolidated Income Tax Act) includes, among the cases involving lapse of the tonnage tax option, non-performance of the obligation to train cadets. Such obligation can now be alternatively fulfilled by either employing one cadet on board each of the vessels eligible for the option regime or paying an annual amount to the Italian Seafarers National Fund or the training centres accredited by Regions.
Article 24, paragraph 6, provides that, if the training amount is not less than 10% of the amount due and in any event not less than Euro 10,000, tonnage tax treatment shall not lapse automatically. A fine will indeed be payable, amounting to 50% the unpaid amount.
Furthermore, a regularisation procedure was introduced in respect of non-payment, involving settlement within 1 year from the due date and payment of penalties amounting to 20% and statutory interest. The new provisions will apply to payments outstanding since the date of the coming into force of the law.
Article 30 of the “Legge Europea” amends Article 29, paragraph 3, of Legislative Decree No. 276/2003 on procurement contracts, providing that, in cases of acquisition of employees already working on a contract, following takeover by a new contractor, the provisions of Article 2112 of the Italian Civil Code on transfer of a business or a branch thereof shall not apply only if (i) the new contractor has its own organisational and operational structure; and (ii) there are any elements of discontinuity indicating a specific business identity.
Such conditions must both exist and be specifically verified. This is likely to give rise to disputes and uncertainties of interpretation.
In light of the new provisions, the impact of the application of the rules under Article 2112 of the Italian Civil Code on transfer of a business is particularly significant, as the new contractor shall take over all the employment relationships in place with the former contractor, being supposed to ensure the continuity of the same as well as length of service, salary treatment and job levels, and, furthermore, being jointly liable with the former employer for any salary claims pending at the time of transfer.
Also from a procedural viewpoint, the provisions of Article 2112 of the Italian Civil Code shall involve the obligation for both contractors to preliminarily commence the trade-union procedure under Article 47 Law No. 428/1990, in the presence of specific size-related conditions