Last Updated on November 10, 2023
In its circular dated 9 October 2023, the Ministry of Labour provided initial clarification regarding guidelines for fixed-term contracts and staff leasing, as amended by Decree No. 48/2023 converted, the so-called Labour Decree (see our newsflash “Employment Decree 2023: what’s new” of 12.05.2023 and “Conversion of Employment Decree Law 2023: more news in employment law” of 04.07.2023).
With reference to fixed-term contracts, it should be noted that – without prejudice to the maximum duration of 24 months – identification of the reasons justifying the use of this type of contract after the first 12 months is now left, in the first place, to collective bargaining agreements (at any level) signed by the most representative unions at national level and, in the absence of such provisions, to individual employment contracts entered into by 30 April 2024. In this regard, the Ministry clarifies that the duration of these relationships can also go beyond this date.
Interesting considerations are also made with regard to the grounds that may be contained in the collective agreements currently in force: where the latter merely refer to the legal cases of the previous guidelines (i.e. needs outside the ordinary activity or unforeseeable increases in the ordinary activity), these must be considered superseded by the new regulations; conversely, if the agreements already contain concrete reasons, these may continue to apply for the term of the collective agreement’s validity.
The circular also comments on the new guidelines for renewals, according to which also for renewals grounds, as already provided for extensions, are necessary only if the sum of the contracts exceeds the 12-month limit. In this sense, for the purposes of calculating this limit, only ‘contracts entered into‘ on or after 5 May 2023 (i.e. when the Labour Decree Law came into effect) must be taken into account, and this also includes renewals and extensions of the same. Therefore, no periods of work carried out under contracts entered into before 5 May 2023, even if they expire after that date, should be included when calculating the 12 months.
Lastly, the circular mentions the innovations introduced with regard to permanent staff leasing, i.e. the exclusion of temporary workers hired by the agency with an apprenticeship contract from the calculation of the limit of 20% of the permanent workforce employed by the user, as well as the exemption from the quantity limits of certain categories of precisely identified workers, such as the unemployed who have been receiving social security benefits for at least six months, the disadvantaged and the very disadvantaged as defined by European legislation.
In particular, the Circular refers to the notion of disadvantaged workers, i.e. those in one of the following conditions:
- out of paid employment for at least six months;
- between the age of 15 and 24;
- do not have a high school or vocational school diploma (ISCED level 3) or have not completed full-time education for more than 2 years and have not yet obtained their first regular paid employment;
- over the age of 50;
- adults living alone with one or more dependants;
- employed in jobs or sectors where the gender gap rate is at least 25% greater than the average gap in all economic sectors if the worker concerned belongs to the under-represented gender;
- belong to an ethnic minority in an EU Member State and need to improve their language and vocational training or work experience in order to increase their prospects of gaining access to stable employment.
The very disadvantaged, on the other hand, are those who have not had a regular paid job for at least 24 months and belong to one of the categories indicated in points 2) to 7).
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