Legislative Decree No. 104 of 27 June 2022 has been recently published. In accordance with European parameters, the decree introduces disclosure obligations for employers as well as “minimum requirements” to protect employees.
These new guidelines apply to all subordinate employment contracts (fixed-term, open-ended, full and part-time) and, where compatible, to certain kinds of self-employment contracts (so called co.co.co.s and occasional collaborations), including those already in force at 1 August 2022.
The measure will come into force on 13 August 2022.
The new decree confirms the list of information (already announced in our newsflash sent on July 20,2022) that employers must now provide in writing to employees before the employment begins and, in any case, within the following 7 days (except for the longer period of one month for certain data). For relationships already in force on 1 August 2022, employers are instead only required to provide the data within 60 days from the specific written request by employees.
- The communication of some information was already mandatory under the previous rules, and it is therefore likely that such information is already included in the contracts in force or that it can, in any case, easily be added in such contracts (e.g. name of parties, place of work, classification, start date and type of relationship, probationary period, remuneration and the collective bargaining agreementsapplied).
- These new rules introduce the obligation to communicate other information to employees and we therefore suggest that a separate annex be drawn up for ease of use not only for new employees, but also for any existing employees who request it. This extra information includes, in particular, the duration of holidays and paid leave, the procedure and notice periods in the event of termination by either party, training (if applicable) and the social security and insurance institutions to which contributions are paid.
- The list of information becomes longer and more complicated in the event of peculiar work patterns (i.e. when there is no predetermined exact schedule of hours of work per week or month) and/orautomation. In these cases, additional information is required, the identification of which entails careful assessment of the company organisation of the individual roles involved.
In detail, where work patterns:
- are predictable (wholly or in part), it is necessary to clarify not only the normal hours of work, but also any conditions for overtime and for shift changes;
- are unpredictable (wholly or in part), it is necessary to clarify that the work schedule may be variable, and to indicate the guaranteed minimum number of paid hours and the notice to be given before the start or cancellation of an assignment;
- involve the use of automated decision-making or monitoring systems, employers must clarify to the concerned employees and their trade union representatives the aspects of the employment relationship affected by these systems, their purposes and aims, their mode of operation and relevant IT security level.
The Decree does not only outline disclosure obligations, it also details the minimum requirements for employment relationships.
Firstly, it sets a maximum limit of six months for probationary periods, unless a shorter period is fixed by collective agreements. This duration is automatically extended in the event of accident, illness, compulsory maternity and paternity leave, for a duration corresponding to the period of absence.
Whereas in the case of fixed-term contracts, the probationary period must be proportional to the duration of the contract and to the tasks assigned to the employee; in the event the same parties sign a new fixed term contract for the same tasks, it is not allowed to provide a new probationary period.
Moreover, the decree provides that employees must have the possibility to have another job outside the normal working hours indicated in their contract, withstanding the obligation to comply with their duty of loyalty. This is a very delicate point that must be further analysed and considered carefully.
This provision cannot not be waived, i.e. a clause preventing the employee from doing another job would not be admissible except when:
- this may effectively impact the employee’s health and safety;
- this would represent a conflict of interest with the main employment;
- the integrity of a public service must be guaranteed.
Employees who have accrued at least 6 months’ service and completed the probationary period, have the right to request, in writing, from their employer, a position with more predictable, safer and more stable conditions, i.e. with scheduled hours of work that enable easier organisation of the employees’ private life.Employers have one month to reply to this request. In the event of a refusal, the worker may resubmit the request after a further 6 months and, if the answer is still negative, companies with up to 50 employees may provide this answer orally.
The decree also provides clarifications with reference to training. It is, in fact, stipulated that if employers are required to provide employees with the training they need to perform their duties, this must be free of charge. Secondly, this training must be carried out during working hours and considered as work activity.
The impact of this new Decree is indeed significant considering the degree of compliance requested bycompanies at the time of hiring and during the course of the relationship, with the risk of incurring heavy fines in case of mistakes.
We recommend that employers carefully:
- examine current contract models, identifying any missing information required by the new legislation;
- analyse the applicable collective guidelines, including company guidelines, and any regulations (including unilateral ones) at company level;
- draw up an ad hoc information notice containing the specific data, where required by the terms ofemployment;
- prepare any communication which is necessary to update the relevant data.
Our firm can provide support with revising and updating the relevant documents.
By: Alessia De Concilio and Stefania Vitiello
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