Employment newsletter – April 2021

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LEGISLATION
Decree-Law no 52 of 22 April 2021 (the so-called “Reopening Decree”)

Urgent measures for the gradual restart of economic and social activities in compliance with the needs to contain the spread of the COVID-19 pandemic“.
This latest legislation extends the general state of emergency to 31 July 2021.
In particular regarding the simplified remote working procedure, which allows employers to impose agile working unilaterally on employees, introduced at the beginning of the pandemic and due to expire today, has now been extended to 31 July 2021.

CASE LAW
Lawful withdrawal from the NCBA containing an ultra-validity clause

Court of Rome, decree of 19 April 2021
The employer may withdraw from the national collective bargaining agreement (NCBA) and apply a different one only at the natural expiry of same; termination prior to then is unlawful, even in the case of giving reasonable notice.
On the other hand – as is the case here – where the NCBA provides for an ultra-validity clause at the expiry date (“in any event, the present agreement remains in force until the signing of the new collective agreement“), the employer is free to terminate it at any time after its expiry, since there is no continuity of the binding obligation.  The latter circumstance would, in fact, end up misrepresenting the very function of collective bargaining which is, by its very nature, designed to regulate labor relations differently over time.

The ban on redundancies does not apply to managers
Court of Rome, judgment of 19 April 2021
The ban on redundancies provided for by the emergency legislation does not apply to top-level managers (dirigenti) since, on the one hand, it applies only to dismissals served for economic reasons under Law 604/1966 and, on the other hand, dirigenti are not covered by the furlough scheme.

Change of shift at short notice compensated by longer rest period
Supreme Court, Employment Section, 23 April 2021, no. 10868
The conduct of a company that notifies an employee of a change of shift only a few hours before starting work is lawful, provided that the short notice is compensated by a longer rest period.

Subsequent dismissal for objective (economic) reasons following a collective redundancy process is contrary to law
Supreme Court, Employment Section, 23 April 2021, no. 10869
The employer is not permitted to go back on the choices made as to the number, location and professional qualifications of the employees made redundant, or on the criteria for selecting the individual employees to be made redundant, by means of further and subsequent individual dismissals. Therefore, the dismissal for objective reasons (in this case, for the abolition of the job) for the same reasons already relied on as the basis of a previous collective dismissal, constitutes fraud within the meaning of Article 1344 of the Civil Code.

Unlawful placement in the temporary layoff scheme (CIG): no right to readmission to service but payment of damages
Supreme Court, Employment Section, 20 April 2021, no. 10378
The violation of the criteria, established by collective bargaining, for the selection of workers to be laid off, does not entitle the employee who has been unjustifiably suspended to return to work, but only the right to compensation for damages, corresponding to the difference between the ordinary salary and what he\she received during the periods of suspension by way of unemployment benefit.

Dismissal for closure of business, irrelevant that the undertaking continued for a short time to complete the paperwork relating to the winding down of the business
Supreme Court, Employment Section, 14 April 2021, no. 9820
Where it is established that the employer has completely ceased to carry on business activities, the legitimacy of the dismissal of employees for objective reasons is not precluded either by the fact that the company premises have not been immediately disposed of but remain at the disposal of the employer as a mere non-functioning entity, or by the fact that one or a few employees have been retained to complete the winding down of the business.

A solidarity agreement entered into during an ongoing collective redundancy procedure is legitimate
Supreme Court, Employment Section, 7 April 2021, no. 9307
While it is unlawful for an employer to initiate a collective dismissal procedure while a collective solidarity agreement is in force, the opposite is allowed: reduction of working hours, by way of a solidarity agreement, during a collective redundancy process.

CUSTOM AND PRACTICE
Government and unions – Protocol 6 April 2021
Shared protocol for updating health and safety measures to counter and contain the spread of Covid-19 in the workplace.

Government and unions – Protocol 6 April 2021
National protocol for the implementation of company scheme to set up Covid-19 vaccination points in the workplace.

National Labor Inspectorate – note no. 2181 of 9 April 2021
Update of the checklist in the light of the Shared Protocol for updating measures to combat and contain the spread of Covid-19 in the workplace of 6 April 2021.

Ministry of Labor, Ministry of Health, INAIL (National Institute for Insurance against Accidents at Work), Conference of Regions and Autonomous Provinces – 8 April 2021
Interim guidance for Covid-19 vaccination points in the workplace.

Ministry of Health – Circular no. 1527 of 12 April 2021
Guidelines for the readmission to service of workers after absence for Covid-19 related illness.

INPS (Italian Social Security Body) – message no. 1667 of 23 April 2021.
Protections for private sector employees entitled to social security protection for illness and for “frail” workers.

INPS – Circular no. 56 of 12 April 2021
Exemption from hiring young people on permanent contracts and converting fixed term contracts to permanent ones for 2021-2022. First operational indications.

INPS – Circular no. 53 of 6 April 2021.
BREXIT. Withdrawal Agreement of the United Kingdom from the European Union. End of the transition period. Provisional application of the Trade and Cooperation Agreement (TCA). Protocol on social security coordination (PSSC). Clarification of the Withdrawal Agreement (WA).

Assodelivery – Framework protocol against exploitation of labour in the food delivery sector
Signed on 24 March 2021, in the presence of the Minister of Labor, representatives of the riders’ independent unions of Milan, Modena, Bologna and the Lazio Region, by Assodelivery, Cgil, Cisl and Uil.