Employment newsletter – March 2021

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LEGISLATION
Decree-Law no. 41 of 22 March 2021 (so-called Support Decree)

Emergency measures to support businesses during the Covid-19 pandemic.
The main employment provisions:

  • Extension of ban on dismissals until 30 June 2021 [for Companies not subject to ordinary CIGO, the most recent interpretation, contained in a report submitted to the Senate, suggests that the freeze applies until 31 October 2021 to the employers who could theoretically avail themselves of the furlough scheme and not just to those who actually applied for and were granted the funds. Given that the conversion of the decree into law must take place by 20 May 2021, we hope that the legislator will clarify its interpretation, as the semantics of “can benefit” and “benefit” (from furlough), hold the key to whether businesses can start restructuring their workforce in July or will have to wait until November
  • Extension of furlough for Covid-19 emergency
  • Fixed-term contracts
  • Frail workers

CASE LAW
The European Court of Justice (ECJ) rules on the protections for collective redundancies provided by the Jobs Act

ECJ Section II, 17 March 2021, no.652
National legislation which provides for the simultaneous application, in the context of a single collective redundancy procedure, of two different sets of protections for permanent workers in the event of collective redundancies carried out in breach of the selection criteria, does not fall within the scope of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, and cannot, therefore, be examined in the light of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union. (The Court has thus ruled in a motion for a preliminary ruling by the Court of Milan in a dispute concerning unlawful collective redundancies).

Duty of repechage limited if worker indicates locations
Supreme Court, employment section, 16 March 2021 no. 7630
On the subject of dismissal for objective reasons, although there is no onus on the worker to indicate at the time of termination the company locations for the purpose of “repechage”, if the worker is willing to transfer only to certain geographical areas, the employer, for the purposes of compliance with the obligation to repechage, only needs to show there are no open positions in the offices located there.

In a TUPE, the company level collective bargaining agreement of the transferee and not the transferor applies
Supreme Court, employment section 15 March 2021, no.7221
In the event of transfer of a business, the company level collective bargaining agreement of the transferee and not the transferor applies: given that since that agreement, as well as the rights acquired under it, do not survive the change in collective bargaining following the TUPE; it suffers the same fate as the national collective bargaining agreements applied by the previous employer and is no longer applicable to the transferee company with its own company level agreement (in the case in point, the bonus was nevertheless paid to the employee who had reached 30 years length of service with the company before the new agreement took effect).

Dismissal for “justified objective reasons”: lawful to hire new recruit for different tasks
Supreme Court, employment section, 15 March 2021, no. 7218
The sacking of an employee was deemed lawful where the new employee, hired post-termination, performed duties different from those carried out by the employee fired (in the case in question, the employee dismissed was a baker while the new hire was a pastry chef. The latter had been hired following the resignation of the previous pastry chef).

Court of Rome: dismissal during probationary period is null and void, in violation of art. 46 of Law Decree no. 18/2020 (the so-called “Decreto Cura Italia”)
Court of Rome, Judgement of 25 March 2021
Termination, on the grounds of failure to pass the probationary period, but in reality, based on the need to abolish an expensive position, must be considered null and void, as contrary to the current ban on redundancies under the emergency regulations.

Court of Belluno: it is lawful to force healthcare workers who refuse to be vaccinated against COVID to take holidays.
Court of Belluno, Ruling 19 March 2021
Under Art 2087 of the Civil Code an employer is required to take all necessary measures to protect the physical wellbeing of its employees. Among these measures must be included the anti-Covid vaccine, given that its effectiveness in preventing evolution of the disease is now well-known.
The claimant remaining in the workplace would mean the employer breaching said Art 2087. Hence the court claim was rejected, and the court upheld as legitimate the placing of workers on holiday who refused to be vaccinated.

CUSTOM AND PRACTICE
INPS (Italian Social Security Body) – Announcement no.1297 of 26 March 2021
Initial guidelines on the management of further applications for furlough in relation to the provisions introduced by Decree-Law no. 41 of 22 March 2021. Solidarity fund for the aviation sector and airport handling services: supplementary benefits to furlough.

INPS – Announcement no. 1296 of 26 March 2021
Initial guidelines on the so-called “bonus babysitter” for services rendered in the care and supervision of children (under Article 2(6) of Decree-Law 13 March 2021, no. 30).

INPS – Circular no. 45 of 19 March 2021
Leave of absence permits to take care of dependant relatives (pursuant to Article 33(3) of Law no. 104/1992). Vertical or mixed part-time work. Reproportioning of the duration of the permits for private sector employees.

Ministry of Labour and Social Policy, news 15 March 2021
Covid-19: agile working, parental leave and baby-sitting bonus available to working parents.

Ministry of Labor and Social Policy, note of 4 March 2021
Mandatory communications for British citizens residing in Italy as of 31 December 2020.