The Supreme Court of Cassation rules on the principles regarding the absorbability of the so-called superminimum
Case ref: Court of Cassation, Employment Section, Order No 10779 of 5 June 2020
In this Ruling, the Supreme Court of Cassation confirms its orientation according to which the so-called super-minimum — i.e. the excess pay over and above the minimum wage tables found in the applicable national collective bargaining agreement (NCBA) — individually agreed between employer and employee «is subject to the principle of absorption in subsequent pay increases resulting from the renewal of the NCBA and/or the change in job level, unless the parties have agreed otherwise or the NCBA has otherwise provided».
The Court points out that «the burden of proof is on the employee to show the existence of the right to keep the super-minimum salary, excluding its absorption (Court of Cassation no. 20617 of 2018; Court of Cassation no. 19750 of 2008; Court of Cassation no. 12788 of 2004; Court of Cassation no. 8498 of 1999)».
In addition, according to the judges, «special remuneration closely linked to particular merits or to particularly onerous tasks, and therefore supported by a separate right» also avoids the application of rule of absorption.
The Court of Cassation goes on to say that in order to demonstrate the willingness of the parties to negotiate with reference to the non-absorbability of the superminimum, «the behaviour of the parties even after the conclusion of the relative agreement must be assessed: the willingness of the parties to consider the superminimum non-absorbable from the fact that it had remained unchanged over time, despite the salary increases during the course of the employment relationship, on the occasion of the renewal of the applicable NCBA (see Cass. no. 14689 of 2012, which cites Cass. no. 1899 of 1994)».
On the basis of the above, the Supreme Court confirms the ruling of the Lower Court as «fully in line with the principles of law expressed above».
The Court of Appeal, in fact, had reconstructed the parties willingness to negotiate, expressed through the repeated conduct of the employer after the agreement of the remuneration «considered conclusive in the sense of the exclusion of the absorbability of the superminimum».
In particular, the Court of Appeal held that «the continuation over time of the company’s conduct in subtracting from the superminimum, the increases in minimum wage fixed by the NCBA over time» and «the non-absorption of the remuneration on the occasion of career advancement with a change of job level and also remuneration» of the two employees concerned were conclusive in ruling out the possibility of absorbing the superminimum.