A non-compete agreement which is conditional upon the preservation of the original duties introduces an element of vagueness that undermines the entire agreement.
This principle was confirmed by the Italian Court of Cassation in order no. 10679 of 19 April 2024. In this case, the non-compete agreement provided that if the employee’s duties changed during the term of the relationship, the employee would be free from the non-compete obligation 12 months from the new duties. Moreover, the agreement provided that the geographical area subject to the non-compete agreement related to the Veneto region and to a further area that the company reserved the right to define on termination of the relationship.
In light of the above, it follows that the content of the non-compete agreement must be determined in advance and any clauses that result in its vagueness (such as the modification of the duties or of the geographical area) result in its nullity.
Other related insights:
On 19 February, Assogrocery and the trade unions NIdiL, CGIL, FeLSA, CISL and UILTemp signed a collective agreement that grants protection for “shoppers”, i.e. collaborators who prepare and deliver shopping to customers’ homes using the client companies’ digital platforms.
The agreement implements the provisions of Article 2, paragraph 2 of Italian Legislative Decree no. 81/2015, which applies to so-called “principal-organised” (“etero-organizzate”) collaborators, which explicitly exclude the automatic application of subordinate employment legislation in the presence of collective agreements that provide for specific economic protections for collaborators.
The agreement provides that the “shoppers” remain self-employed to the extent that they are granted the possibility of freely choosing when to carry out the work, choosing the slots indicated by the platform and also being able to withdraw their availability.
From a financial point of view, among the most important measures, there is the recognition of a minimum remuneration of EUR 12.50 per assignment (lasting one hour) and an availability allowance of EUR 1.30 with guaranteed increases for Sunday and holiday work.
The agreement also provides specific protection for illness, which takes the form of the suspension of the account and the payment of a daily allowance upon the occurrence of specific events, as well as maternity protection, for which financial compensation is provided and the maintenance of the collaboration relationship through the suspension of the account.
Other related insights:
Decree-Law 48 of 4 May 2023, so-called “Decreto Lavoro“, which came into force on 5 May, lays down new measures to, inter alia, simplify the employment disclosure requirements to which companies are subject under the so-called “Decreto Trasparenza” (Legislative Decree 104/2022).
Unlike in the past, some of the information that employers were bound to provide in detail in the employment contract or in a specific policy (length of probationary period, training, paid holidays and leaves, notice of dismissal and resignation, components of remuneration, working hours, overtime, social-security and insurance institutions) may now be given to workers just by referring to the relevant provision of law or of the collective agreement that applies to the employment, including the company agreement. For simplification purposes, and in order to ensure uniformity in the employer’s communications, the latter shall deliver and make available to workers, including through publication on the website, the national, local and company collective agreements, as well as any company rules that apply to the employment.
The National Labour Inspectorate (Ispettorato Nazionale del Lavoro, ‘INL’), in note No 2572 of 14 April 2023, provided operational guidelines for the issuance of authorisations for video surveillance systems and instruments which enable remote control of workers within the meaning of Article 4 of the Workers’ Charter (Italian Law No 300/1970). As set out in the operational note, the guidelines are based on application experience and operational problems that have emerged over time, including in the light of the technological evolution of the instruments that can be adopted, while also taking into account the guidelines of the Italian Data Protection Authority (Garante per la protezione dei dati personali).
The INL has, among other things, specified that:
The note also clarifies how geolocalisation systems can be used. The INL, expressly referring to the conclusions that the Italian Data Protection Authority has over time provided on the subject, refers to the Authority’s requirements for the configuration of these systems. The systems, in fact, must:
The INL also clarifies that the procedure imposed by Article 4 of Law No 300/1970 also applies to the types of work to which the protections given to subordinate employment relationships are extended by law. This includes collaborations that take the form of predominantly personal, continuous services organised through an employer (etero organizzate), even if organised through platforms, including digital ones.
Other related insights:
Video surveillance: the repetition of the procedure following a change in the ownership structure is unnecessary
Video surveillance: note of the Ministry of Labour no. 1241 dated 1 June 2016
In its message no. 1269 of 3 April 2023, the INPS [Italy’s National Social Security Institute] extended the deadline for submitting the request for social security contribution exemption for private employers who are in possession, as of 31 December 2022, of the gender equality certification referred to in Article 46-bis of Legislative Decree of 11 April 2006, no. 198
In particular, the application deadline for the 1% social security contribution exemption (initially set for 15 February 2023) was postponed to 30 April 2023.
In the same message, INPS also announced that special indications will be provided, in agreement with the Ministry of Labour, to allow – also in light of the results of the first phase of the application for the exemption – access to the social security contribution relief to employers who have obtained the gender equality certification after 31 December 2022.
Lastly, it should be noted that the Ministry of Labour, in its press release of 28 November, announced the ministerial decree of 20 October 2022, which defines the criteria and procedures for granting the social security contribution exemption for private employers who achieve the gender equality certification introduced into our system by Law No. 162/2021.
This is a voluntary certification that the most virtuous companies can apply for, and obtaining it brings with it a series of benefits, including: relief from social security contributions of no more than 1% and up to a maximum of €50,000.00/year for each company; advantageous criteria in the case of tenders; possibility of access to a bonus score for the evaluation, by national and regional European funds authorities, of project proposals for the granting of State aid to co-finance the investments made.
With judgment No 6902 of 8 March 2023 (which follows two further similar rulings: judgments No 5788 and No 5796, both dated 24 February 2023, of the Italian Court of Cassation), the Italian Supreme Court of Cassation ruled that the transferred employee, who sees the employment relationship with the transferor judicially restored, is not entitled to remuneration for the period between the date of transfer of the business branch and that of the publication of the judicial provision declaring the illegitimacy of the aforementioned transfer and can obtain compensation for the damage suffered due to the unjustified refusal of the transferor employer to receive his/her service only starting from the moment in which formal notice was provided to the transferor employer.
The facts of the case and the proceedings in first and second instances
Following the transfer of a business branch – subsequently declared unlawful in the context of separate proceedings – a transferred employee summoned the transferor company before the Court, seeking for the latter to be ordered to pay the damages consisting of the difference between what the employee transferred would have received if the transfer had not been implemented and how much, however, he received from the transferee.
As part of the proceedings, it was ascertained that the transferor company’s formal notice by the transferred employee occurred only after the judgment which had declared, with effect ex tunc, the illegality of the transfer.
The Court of Appeal upheld the employee’s request, ascertaining the right of the transferred employee to compensation for the damage suffered as a result of the invalid transfer, for the period from the date of the transfer and until the formal notice.
The ruling of the Italian Supreme Court
The transferor Company appealed to the Italian Court of Cassation against the judgment rendered by the Italian Territorial Court, challenging the contested judgment for having recognized amounts by way of compensation for damages also for the period prior to the formal offer of work by the transferred employee.
The Italian Court of Cassation – overturning the decision of the Court of Appeal – noted that, in the time span between the transfer to the transferee’s employment and the judicial assessment of the illegitimacy of the transfer, the lack of work performance in favour of the transferor excludes the right to receive remuneration from the transferor.
According to the Judges of the Court of Cassation, for this period, the transferor can only be held liable for compensation for any damages commensurate with the lost wages.
All of this, however, on condition that the transferred employee has previously taken steps to give formal notice to the employer, remaining available to perform his services or by enjoining the employer to receive the service.
And in fact – continues the Court – only from the moment in which the employee has taken steps to give formal notice to the transferor employer, the same will be able to obtain, pursuant to Article 1217 of the Italian Civil Code, compensation for the damage suffered due to the unjustified refusal of the employer to receive it, deducting any aliunde perceptum.
On these assumptions, the Italian Supreme Court therefore upheld the appeal filed by the transferor company, declaring that no compensation for damages was due to the employee for the period between the transfer and the formal notice of the transferor company.
Other related insights:
The Court of Cassation rules on business branch transfers
Contract term ineffectiveness if there is a company transfer
Italian Legislative Decree no. 24 of 10 March 2023 (the ‘Decree’), implementing Directive (EU) 2019/1937 and ‘on the protection of persons who report breaches of Union law and containing provisions concerning the protection of persons who report breaches of national regulatory provisions’ (so-called Whistleblowing Directive),has been published in the Italian Official Gazette no. 63 of 15 March 2023.
The provisions referred to in the Decree apply, among others, to entities in the private sector that in the last year:
Entities in the private sector, having heard the trade unions’ representatives or organisations, must set up and activate internal reporting channels that guarantee the confidentiality of the identity (i) of the reporting person, (ii) of the person concerned or of the person in any case referred to in the report as well as (iii) the content of the report and related documentation.
The management of the internal reporting channels can be entrusted (i) internally, to a person or to an autonomous internal office dedicated to this and made up of personnel specifically trained for the management of the reporting channel or (ii) externally to a third party, also autonomous and with specifically trained personnel. Furthermore, specific procedures for managing the internal reporting channels are envisaged which must be promptly implemented and applied by the employers and the information relating to the channel, the procedures and the conditions for making reports shall be displayed and made easily visible to all recipients.
Any processing of personal data must be carried out in compliance with current legislation on the protection of personal data, today represented by Regulation (EU) 2016/679 (the ‘GDPR’) and by Italian Legislative Decree 196/2003, as amended by Italian Legislative Decree 101/2018 (the ‘Privacy Code’). Employers addressees of the new legislation must therefore adopt all the necessary formalities required by the legislation on the subject of protection and safeguard of personal data processed.
For the violation of the provisions of the Decree, the imposition of administrative sanctions ranging from EUR 10,000 to 50,000 is envisaged:
Penalties ranging from EUR 500 to 2,500 are also envisaged in the cases in which the criminal liability of the whistle-blower for the crimes of defamation or slander is ascertained.
The provisions of the Decree take effect from 15 July 2023 (17 December 2023 for companies with over 249 employees).
Other related insights:
In a press release dated 9 December 2022, the Italian Council of Ministers announced the approval of the draft Italian legislative decree transposing Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The new legislation extends the obligation to establish reporting channels to all private sector companies with more than 50 employees.
The main measures introduced provide, among other things, that:
Other related insights:
Whistleblowing: la nuova scadenza per il Governo italiano
Il commento di Vittorio De Luca sul tema Whistleblowing e tutela della privacy