RULING ON THE MINISTRY OF LABOUR No. 1/2013
The Ministry of Labor, as a result of a requisition for an opinion submitted by the associations of the cooperative movement AGCI, Confcooperative, Legacoop, provided, with the response n. 1/2013 of the 01.24.2013 ,
their clarifications regarding the suspension of the ratio of employment by the cooperative, with their associate employees and the inclusion of such conditions in the Rules of Procedure, approved by the committee in accordance with art. 6 of Act n 142/2001.
First of all, the opinion highlights, how the associate employee, whether the employment is contract based or casual, joining the cooperative, establishes an additional legal relationship, aimed at achieving of social goals.
Therefore the cooperative, is the employer and the associate should be guaranteed the minimum protection which arise from an employment relationship.
Therefore the cooperative, is the employer and the associate should be guaranteed the minimum protection which arise from an employment relationship.
Article. 6, paragraph 1, lett. d) of Act no. 142/2001, in the event of corporate crisis, it allows the shareholders’ to deliberate a plan that, aims to protect as much as possible the levels of employment, even though it may foresee the temporary reduction of the supplementary economic treatments and a ban on the distribution of profits.
The general principle which must always be taken into consideration is that the minimum salary provided for the associate employees under Article. 3, paragraph 1, cannot be waived for the worse; exemptions, however, may have supplementary costs for processing or for legislative aspects, national collective bargaining agreements within the sector.
Under the corporate crisis plan, the Ministry of Labor, with the response to the interpellation n. 9/2009 of 6.02.2009, had already outlined its characteristics that had to be attributed to an objective and recognizable crisis situation, and, in order to avoid possible abuse of associate employees, the deliberation of the plan was to contain elements clearly and sufficiently to explain:
1.The actual state of corporate crises and the need for extraordinary interventions
2. Provisional nature of the crisis and interventions;
3. Causal link between a state of crisis and the interventions in respect of working members.
Nonetheless, the needs of companies, from 2009 to date, appear to have changed, and the plan of crisis does not appear to be halt the situation faced by many cooperatives. Suspension from work, can therefore be useful to all those companies that may not have recourse to the redundancy payments and are faced with a period of difficulty.
The ministry, therefore, considers that internal regulations foresee the suspension of work, and therefore of the mutual contractual obligations, in order to prevent the risk of redundancies in the following instances:
1.Reduction of employment due to reasons of force majeure or objective circumstances;
2. Crisis determined by temporary difficulties of the cooperative.
This interpretation is supported by the provision of the law art. 1, paragraph 2, letter d) of the Law no. 142/2001, where it is established that the associate employees “Offer their professional skills in relation to the type and the status of the business activity, and the amount of services rendered available for the cooperative itself”.
The Ministry, as a precautionary measure, confirms that, in accordance with the principles of equality and transparency invoked even by the Supreme Court in its judgment no. 22816/2009, the causes legitimizing the temporary suspension of activities for which has not been required the assistance of unemployment benefits must be specified in the rules of procedure and approved from time to time by the board of directors or Member of the body according to the statute, the regulation then, must indicate unequivocally the conditions that enable a balanced use of the entire workforce of the cooperative, by identifying the objective criteria for staff turnover.
The general principle which must always be taken into consideration is that the minimum salary provided for the associate employees under Article. 3, paragraph 1, cannot be waived for the worse; exemptions, however, may have supplementary costs for processing or for legislative aspects, national collective bargaining agreements within the sector.
Under the corporate crisis plan, the Ministry of Labor, with the response to the interpellation n. 9/2009 of 6.02.2009, had already outlined its characteristics that had to be attributed to an objective and recognizable crisis situation, and, in order to avoid possible abuse of associate employees, the deliberation of the plan was to contain elements clearly and sufficiently to explain:
1.The actual state of corporate crises and the need for extraordinary interventions
2. Provisional nature of the crisis and interventions;
3. Causal link between a state of crisis and the interventions in respect of working members.
Nonetheless, the needs of companies, from 2009 to date, appear to have changed, and the plan of crisis does not appear to be halt the situation faced by many cooperatives. Suspension from work, can therefore be useful to all those companies that may not have recourse to the redundancy payments and are faced with a period of difficulty.
The ministry, therefore, considers that internal regulations foresee the suspension of work, and therefore of the mutual contractual obligations, in order to prevent the risk of redundancies in the following instances:
1.Reduction of employment due to reasons of force majeure or objective circumstances;
2. Crisis determined by temporary difficulties of the cooperative.
This interpretation is supported by the provision of the law art. 1, paragraph 2, letter d) of the Law no. 142/2001, where it is established that the associate employees “Offer their professional skills in relation to the type and the status of the business activity, and the amount of services rendered available for the cooperative itself”.
The Ministry, as a precautionary measure, confirms that, in accordance with the principles of equality and transparency invoked even by the Supreme Court in its judgment no. 22816/2009, the causes legitimizing the temporary suspension of activities for which has not been required the assistance of unemployment benefits must be specified in the rules of procedure and approved from time to time by the board of directors or Member of the body according to the statute, the regulation then, must indicate unequivocally the conditions that enable a balanced use of the entire workforce of the cooperative, by identifying the objective criteria for staff turnover.
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