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The amendments to the Labour Code, mainly introduced by the Act n. 365/2011, effective from the 01.01.2012

Firstly, it is important to consider that, globally, the amendments introduced by the Act n. 365/2011 (the so called “Big reform law”) are 323 and that through this article have been treated only and generally the main and most significant amendments on the employer’s point of view. It is also important to consider that this article is aimed at those employers-companies that are not subjected to the trade union rules.

Validity of the acts

Generally speaking, according to the Labour Code shall apply the principle of the “relativity” of the invalidity of the acts. The one who has caused the invalidity of an act can not demand the invalidity itself, but indeed it is the one towards whom the invalidity produces legal effects who can demand the invalidity.

Anyhow, Art. 19 of the Labour Code has introduced the “absolute invalidity” with reference to those acts having heavy formal and substantial lacks, as for example:

  • acts having severe defects about the form and the expression of the will;
  • acts performed by persons not having legal capacity;
  • acts having an impossible content to fulfil;
  • acts that break the law;
  • acts that break moral rules;
  • act by the means of which the employee, contrary to the law, renounces to his own rights;
  • acts performed without the consent of the entitled bodies, when the law requires such a consent.

The place of work

In the Art. 34a. has been introduced the concept of the “Place of work in order to the compensation of the expenses occurred to the employee for the work trip” (hereinafter even only “Place of work in order to the work trip”), that is a concept previously known only by the case-law and not expressly specified as proper legal principle. In fact, starting from the 01.01.2012 has been provided the possibility to include in the work contract, not only the Place of work (the place where the employee generally performs his activity), but also the Place of work in order to the work trip (that is considered as the usual starting site of the employee in order to calculate the expenses occurred by the employee himself during the work trip).

Withdrawal

Art. 34 provides for the employer the possibility to withdraw from the contract of work, and that within the day of the start of the work.

Trial period

Art. 35, par. 1, lett. b introduces a 6 months trial period for the employees who work as executives, while the limit of 3 months is maintained for all other employees. Besides the limit provided for by the law whether in 3 or in 6 months, the trial period can not anyway exceed one-half of the total length of the contract of work (in case of fixed-term contract of work), it must be agreed as per law, at latest, at the date of the start of the work.

It has been introduced also the prohibition to terminate the contract of work during the first 14 days of illness (21 days, from the 01.01.2012 to the 31.12.2013).

Fixed-term contract of work

Art. 39 of the Labour Code sets in 3 years the maximum total length of the fixed-term contract of work, including a maximum renewal of two times.

Temporary secondment

Once passed, at least, 6 months from the start of the contract of work, Art. 43a of the Labour Code provides the possibility to conclude a secondment agreement by the means of which the employee can be temporary assigned to another employer.

Resignations of the employee in case of succession of the employer

In case of succession of the employer (because of merger, separation, succession of rights, sell of the company or of part of the company, etc.), in the Art. 51a of the Labour Code has been introduced the right of the employee to file his own resignations and that with effect, at latest, from the day of the finalization of the succession.

Dismissal

As a new dismissal’s reason it has been introduced the non-fulfilment of the medical instructions concerning the place of the employee’s availability in case of illness, for the whole period during which the employer is bound to grant the sick pay (21 days until the 31.12.2013 and 14 days from the 01.01.2014). In this case, the dismissal is possible just within 1 month from the moment in which the employer has had knowledge of the specific fact (and, however, within 1 year form the breach), or within 1 month from the moment in which the employer has had knowledge of the outcome of the verifications performed by a delegated body (but, however, if such verifications had been performed within 1 month from the moment in which the employer has had knowledge of the specific fact).

Severance pay

It has been introduced the principle of the proportionality of the severance pay with the actual length of the contract of work in case of dismissal because of the organization or the reorganization of the company. The severance pay has been provided equal to: one month of the average salary, in case the employee has worked for a period of time shorter than one year; two months of the average salary, in case the employee has worked for a period of time of at least one year, but shorter than two years; three months of the average salary in case the employee has worked for a period of time of at least two years. Instead, in case of dismissal because of health reasons, a severance pay equal to 20 months of the average salary must be granted to the employee.

Then, Art. 69, par. 2 has brought back the so called “moderating power” of the judge: that is the power of the judge to reduce, in specific cases, the severance pay that the employee would be entitled to get.

Overtime

Art. 114, par. 3 has partially brought back the possibility, for all the categories of employees, to agree by the means of the contract of work that the salary will consider also the overtime. However, it is necessary that the contract of work itself provides the yearly extent of the overtime. It is important also remember that the yearly overtime admitted by the law is equal to a maximum 150 hours. Such limitations shall not apply to the executives.

Salary

Two new rules on the payment of the salary have been introduced in the Art. 141 par. 4 and par. 5:

  • the duty to pay the salary before the holydays of the employee, when the term for the payment expires during the period of the holydays;
  • the duty to pay as much as accrued by the employee during the period of work, at the date of the termination of the contract of work.

Instead, speaking about the sick pay, the amount for it is equal to the 60% of the average salary.

Holidays

The amendments to the rules on the holidays provided for the new Labour code limit the possibility of the employee to get a compensation in money instead of the actual enjoyment of the holidays. It is therefore prohibited such a compensation in money and it is introduced the duty of the employer to guarantee that the holidays will be enjoined by the employee for as long as much the latter is entitled, and that during the relevant year. Only in the case of specific organizational needs of the employer it is provided for the possibility that the holidays could be enjoined within the end of the subsequent year. However, in this case, the holidays shall be fixed by the employer within the 30 of June of such a year and if not the employee himself is entitled to fix the date. Should not the employee be able to enjoy the holidays because of reasons provided for by the law (i.e. illness, injuries, etc.) the employer shall fix the date of enjoying of the holidays after the disappearance of such kind of reasons.

Non-competition clause

In this regards, the substantial amendments that is introduced is about the amount of money that the employer is forced to pay to the employee when a non-competition clause had been agreed. Such amount is equal to the half of the salary and the validity of the non-competition clause can be agreed for a maximum period of one year.

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