• mario
  • mano
  • scacchiera


on .

Foreign companies posting workers from undertakings established in Italy being in the same group must, by December 26, 2016, sent to the Ministry of Labour a preliminary communication within 24 hours of the previous day the beginning of the first secondment period.
This communication requirement arises from the implementation of the European Directive 2014/67 / which has been implement in Italy by the legislative Decree n. 136 of July 17 2016.
As of day indicated, then the foreign company release agent has an obligation to make prior notification of personnel detachment that intends to use in Italy.
It is also believe that, with effect from the same date, foreign companies are also required to communicate the detachments beginning after July 22, 2016.
Such communication must be carried out by 26 January 2017, in the manner indicated in the following provide that the gaps are still outstanding at that date.
They are therefore considered to be excluded from the prior notice the gaps activated after 22 July 2016 but ceased before January 26, 2017, as well as the gaps started before July 22 2016.
It worth remembering, too, that the obligation shall be placed exclusively in the hands of a foreign company release agent (service provider) and applies both to undertakings established in other Member States, both in relation to undertakings established in a third / non-EU State, or to any employment agencies established in another member State which post workers in Italy.
Finally, in reporting this important transposition of UE legislation, it should be emphasize that, in compliance with EU principles of effectiveness and proportionality, the cogency of the new communicational obligations is ensure by an appropriate sanctions system.
In particular, pursuant to article 12, paragraph 1 of Legislative Decree. n. 136/2016, violations are sanction By the obligation to inform the service provider:
1) The gap within twenty-four hours the day before the beginning of the posting itself, unless cases that admit
The "so called" Preventive Communication Postponed;
2) The cancellation/new communication of essential data within twenty-four hours the day before the beginning of the worker's posting;
3) Any subsequent changes concerning non-essential data within 5 days of the event.
They are also punish with a fine from 150 up to 500 Euros for each violation and for each worker concerned.
In any case, according to Article. 32, paragraph 1, letter d), Law no. 234/2012 (General rules on Italy's participation in the formation and implementation of legislation and policies of the European Union), the amounts of such penalties cannot exceed 150,000 Euros (art. 12, para 4, D. lgs. n. 136/2016).
© All rights reserved the Studio GF LEGAL STP


on .

It is very important for the Italian legal system, the judgment on the issue of geographical and quantitative requirements with regard to collective redundancies of the Court of Justice of the European Union (Case C-80/14 Union of Shop, Distributive and Allied Workers ( Usdaw) & B. Wilson / WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd, & Secretary of State for Business, Innovation and Skills).
Specifically, the company WW Realisation and Ethel Austin were retail businesses, operating under the brands Woolworths and Ethel Austin.
Become insolvent, they have been subject to receivership, resulting in redundancy of thousands of employees across the UK.
Ms Wilson, one of the employees laid off, and the Usdaw, trade union organization which has over 430,000 members in the UK, have acted against these two companies, seeking an order employers to pay severance to employees protection redundant, since it was not followed the procedure for prior consultation to the adoption of social plans provision in British law.
During the first trial, a number of employees laid off was granted indemnity protection.
By contrast, about 4,500 former employees have instead got this benefit on the grounds that they had worked in establishments with fewer than 20 employees and that each plant had to be considered in its own right.
On appeal, however, the Court of Appeal asked the Court of Justice whether the expression at least in Article 20. 1, paragraph 1, first paragraph, letter a), ii) of Directive 98/59 of the Council of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies refers to the number of redundancies in 'all the establishments of the employer where layoffs occur during a period of 90 days, or if it only refers to the number of redundancies in each individual plant. The Court questioned, on the specific point, before coming to the conclusion of the legal matter, however, has two considerations.
With the first, first it held that the concept of establishment, which is not specified in the Directive itself, is a concept of European Union law and not be defined by reference to the laws of the United States and therefore where an undertaking encompassed more entities, is the extent to which workers made redundant are assigned to carry out their duties to constitute the establishment.
With the second, the Court observes that the interpretation that you should take into account the total number of redundancies in any establishment of an enterprise, while it would increase the number of workers who could benefit from the protection of the Directive, on the other hand, however, such an interpretation would be contrary to the other objectives of the directive, namely to ensure protection of workers' rights similar in the various Member States and to harmonize the costs which such protective rules entail for companies Union.
Without these two considerations, the Court finds, therefore, that the interpretation of at least 20, requires that they be taken into account redundancies in each establishment taken separately.
At this point, there seems to be all the conditions for the legal framework regarding collective redundancies, dumb even in Italy, given that according to the provision of the law, collective redundancies is understood that relative to firms with more than 15 employees who plan to at least five layoffs - numerical requirement - over one hundred and twenty days, in each production unit or in several production units within the territory of a single province (co.1 art.24 L.223 / 91).
E 'of this new address, that the Italian law must take into account, no longer able to consider as already done in the past that the reduction of staff must, in principle, invest the entire business complex, and may be limited to specific business units only if they are characterized by autonomy and specificity of professionalism used, compared to other non-perishable.
(Cass. 06/14/2007 n. 13876, Pres. Senese East. Picone, in Riv. It. Dir. Lav. 2008. Or as always done by the Supreme Court of 31/10/2013 n. 24575, Pres. Maisano Rel. Garri, in Lav. swore in. 2014, 182, establishing that as part of a collective dismissal procedure, the identification of workers to oust should normally be accomplished with regard to the whole complex of the enterprise.
Finally, it can not be recalled, as the European Commission has already referred Italy to the European Court of Justice, for failing to take adequate measures in order to implement EU legislation concerning collective redundancies with particular reference to the fact that Italian legislation, as applied by the courts, currently excludes executives from the scope of the mobility procedure, depriving these workers of the protection afforded by this procedure.
© All rights reserved the Studio GF LEGAL STP


on .

The institution of the forward contract has been modified by the recent legislative action and today is characterized by four new conditions would lead to the conclusion of the Contract:
1) the term of the appositive clause is inserted in the act writing, which must explicitly invoke the rights of way.
However, please note that the system of causal does not disappear completely as art. 10, paragraph 7, of the d. lgs. n. 368/2001 continues to provide for the exclusion from the limits of any arrangements for some of them, most notably the right replacement and one referring to the season.
In this regard it may be noted that sometimes the employer has an interest in writing to indicate a causal substitution in the act, because this allows some advantages:
a) non-calculation of these contracts;
b) exclusion from the computation of the contribution of 1.4%;
c) achieve remission of 50% for the hiring to replace workers on maternity leave, in the case of companies with fewer than 20 employees.
2) the duration of the contract can not exceed 36 months;
3) the total number of forward contracts entered into by each employer shall not exceed the limit of 20% of the number of permanent employees on the basis of January 1 of the year of recruitment and in case of breach apply administrative sanctions introduced by the above paragraph 4f art. 5 of Legislative Decree no. No. 368/2001;
4) do not move to the prohibition in art. 3.
The extensions of the same contract when the original contract is less than three years shall be allowed at a maximum of five in the 36-month period provided that refer to the same work for which the contract has been made for a determined (Article 4). With that you can lean in the sense that the employee could instead take a more long-term contract has as its object the same tasks than the previous year.
The new legislative framework with the time limits and quantities indicated, however, continues to report the detriment to the contract. The new rules on fixed-term contracts should also be analyzed with respect to the legal system of the European Union.
In particular, should be reported complaints submitted to the European Commission by the National Association of Democratic Lawyers and the CGIL infringement of Directive 1999/70. In particular, it highlighted the infringement of the principle underlying the directive (repeated in number of judgments of the Court of Justice) that "the employment contracts of indefinite duration are the general form of employment relationship and contribute to the quality of life of the workers concerned and improve performance."
In addition, the elimination of the cause would be contrary to:
a) the provisions of the judgment Adelener, that "the notion of objective reasons requires recourse to this particular type of relationship is justified by the existence of specific factors relating in particular to the activity in question and the conditions of its exercise"
b) the provisions of the judgment Angelidaki, that the existence of even two of the measures provided for in clause 5 of the Framework Agreement (a: Objective reasons justifying the renewal of such contracts or relationships; b: The maximum total duration of the contracts or relationships of successive fixed-term; c: The number of renewals of such contracts or relationships ") is not sufficient to justify term relationships. It should be noted that the above provision of the Framework requires
Member States to "the effective and binding adoption of at least one of the measures set out in it if national law does not provide for equivalent standards."With regard to this context, it should also be noted that in spite of the cunning of the legislature, it permits a single contract acausal 5 with
possible extensions for periods not exceeding 36 months in which the extensions of the expiration of the one contract are technically different from the signing of new contracts after the previous expired, which would consider the new rules unrelated to the limits imposed by that clause, as expressly refer only to the renewal, should however be seen as already mentioned in the appeals to the Commission, it is stated that the Italian State violated clause 8, paragraph 3, of the Framework European which states: "the application of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the framework of the agreement" as the law n. 78 of 2014 would lower the general level of protection afforded to workers, without providing adequate compensation measures.
This is contrary to the Community principle of non-regression clauses which provide that the implementation of an EU directive can not in any way require a Member State to implement, if the same has, already a discipline that provides an equal or greater level of protection.
It 's the lack of discipline of this type as indicated in the applications, would result in the violation of the prohibition of deterioration as the Italian state with new legislation (Law no. 78 of 2014) violated Clause 8 paragraph 3 "lowering the general level of protection afforded to workers," without providing adequate compensation measures.
© All rights reserved by GF LEGAL STP
GF LEGAL STP | Sede Legale: Via Boncompagni, 93 - 00187 Roma (RM) - Italy | p.iva 10723741004
Copyright ® 2013-2017 - tutti i diritti riservati | Contatti | Privacy Policy | Powered by ::: ITechSolution.it :::