NEW PROVISIONS FOR THE FORWARD CONTRACT
With the recent D.L. 104/2020 (Decree August) the Legislator has finally proposed a real derogation to the strict regulations regarding the fixed-term contract. The rules laid down in Legislative Decree 81/2015, as reformed by the Dignity Decree, are therefore derogated in relation to the need for flexibility of companies, linked to the health emergency in progress.
It is provided that, until December 31, 2020, without prejudice to the maximum overall duration of the term relationship of 24 months, it will be possible to renew or extend this type of contract for a maximum period of 12 months, but only once, without the need to expose the reasons provided for by the regulation when fully operational.
This derogation is open to any term contract currently in force, by means of extension, and also to renewals of old contracts currently expired.
Much attention must, however, be paid to the maximum duration, even for summation, of various term contracts concluded between the parties over time, with the same job and legal category; it is not possible, in fact, not having been derogated from this limit, to exceed 24 months of maximum duration.
It should also be noted that the extension/renewal in derogation can only be made once.
The stipulation in derogation form must necessarily take place by 31 December 2020.
The derogation allows, in practice, to extend, with extension, the duration of an existing term contract in an acausal form for a maximum of another 12 months, provided that this is done by the end of 2020. It also allows, by means of renewal, to stipulate a new fixed-term acausal contract, for a maximum of 12 months, between the same parties, always by the end of 2020; it is recalled, in fact, that in case of renewal, it is ordinarily required to affix the cause. This situation also applies if the maximum limit of 12 months has already been reached in the sum of previous contracts of the same type.
In note no. 713/2020, INL has clarified the following in this regard:
- the provision also allows an exception to the discipline on the maximum number of extensions and compliance with the so-called buffer periods, contained in Article 21, Legislative Decree 81/2015, with the consequence that, where the relationship has already been subject to 4 extensions, it will still be possible to further extend its duration for a maximum period of 12 months, as well as it will be possible to renew it even before the expiry of the so-called buffer period, provided that the maximum duration of 24 months is respected;
the term of 31 December 2020 refers exclusively to the formalisation of the same extension or renewal, therefore the duration of the relationship may continue also during 2021, without prejudice to the overall limit of 24 months;
- the provision, as “substitute” for the previous discipline, allows the new extension or “facilitated” renewal to be adopted even if the same employment relationship has been extended or renewed in application of the previous article 93, D.L. 34/2020, although always in compliance with the maximum duration limit of 24 months;
- the obligation to automatically extend existing fixed-term contracts for a period equivalent to the suspension of work caused by the COVID-19 emergency has been repealed and the automatic extension enjoyed from 18 July to 14 August is to be considered “neutral” in relation to the calculation of the maximum duration of 24 months of the fixed-term contract;
- the renewal of the term contract in derogation assisted beyond the legal term of 24 months or the different term provided by collective bargaining remains, however, subject to compliance with the conditions set out in Articles 19, paragraph 1 and 21, Legislative Decree 81/2015.
EXTENSION OF THE BAN ON LAYOFFS
Article 14, Decree August, in force since August 15, 2020, extended the prohibition of dismissals for economic reasons until December 31, 2020, but modulating its content according to certain assumptions made by the company.
Employers who have not fully benefited from the new salary integration treatments due to the epidemiological emergency by COVID-19, or the contribution exemption for those who do not apply for CIG, remains precluded:
- the initiation of procedures and collective dismissal (Articles 4, 5 and 24, Law 223/1991) and also remain suspended pending procedures initiated after the date of February 23, 2020, except in cases where the staff affected by the withdrawal, already employed in the contract, is rehired as a result of taking over a new contractor by law, CNL or clause of the contract;
- regardless of the number of employees, the right to withdraw from the contract for justified objective reasons pursuant to Article 3, Law 604/1966 (the procedures underway pursuant to Article 7 of the same Law shall also remain suspended).
The prohibition of dismissals is not prolonged for the categories of employers other than those specifically indicated by the rule (for example, employers who have already fully benefited from the special supplements or exemption, employers who have never been entitled to those special measures).
Article 14, Decree August, expressly provides some specific exceptions to the prohibition of dismissal:
- the cases in which the staff affected by the withdrawal, already employed in the contract, is rehired following the takeover of new contractor by law or clause of the contract;
- in cases of definitive cessation of business activity, resulting from the liquidation without even partial continuation of the activity;
- in cases where the redundancies occur in execution of a company collective agreement – entered into by trade unions comparatively more representative at the national level – which provides an incentive to terminate the employment relationship; in these cases, the workers who will adhere to the company collective agreement to encourage redundancy will still be recognized the unemployment treatment NASpI;
- in cases in which dismissals are announced as a result of bankruptcy, in the absence of provisional exercise of the company.
The opinion of INL
In note no. 713/2020 the INL also recalled that the provision concerning the possibility for the employer, regardless of the number of employees, to revoke the termination of the employment contract for gmo, provided that at the same time it requests the COVID redundancy fund treatment, from the date on which the dismissal takes effect. In such cases the employment relationship is restored without interruption and the employer is exempt from charges and penalties. This provision, previously limited to recessions that occurred in the period from 23 February to 17 March 2020, is extended to recessions throughout the year 2020.
According to the Inspectorate, moreover, except for any changes that may occur during the conversion of the Decree Law, the prohibition of dismissal seems to operate only because the company has not exhausted the ceiling of hours of redundancy cash available and this is when it has enjoyed only part of them, and when it has not enjoyed them at all. In the latter case, where the employer has not considered to benefit from the redundancy fund, the dismissal would in any case be prevented by the possibility of access to the exemption from social security contributions.
FACILITIES FOR WORKERS WITH CHILDREN IN QUARANTINE
It was published in the Official Gazette no. 223/2020 the D.L. 111/2020, which contains urgent provisions to deal with unavoidable financial needs and support for the start of the school year, related to the epidemiological emergency by COVID-19, and is in force since September 9.
As far as of greater interest, it is worth mentioning article 5 of the above mentioned Decree, which is entitled “Agile work and extraordinary leave for parents during the period of compulsory quarantine of the cohabiting child for school contacts”, wanted to allow the management of children up to 14 years of age subjected to possible quarantine for COVID following the resumption of school activities.
According to this provision, by next December 31, a working parent will be able to perform the work in agile mode for all or part of the period corresponding to the duration of quarantine of the cohabiting child, under 14 years of age, ordered by the Prevention Department of the Asl territorially competent as a result of contact occurred within the school plexus.
If the work performance can not be carried out in agile mode, and in any case as an alternative to agile work, one of the parents, alternatively to the other, may abstain from work for all or part of the period corresponding to the duration of quarantine, taking a leave for which is recognized an allowance equal to 50% of pay (calculated in accordance with Article 23, Legislative Decree 151/2001, with the exception of paragraph 2 of the same article) and coverage with notional contribution, but within the expenditure limit, reached which the INPS will not admit further applications.
For the days in which a parent benefits from one of these benefits, or carries out the work in agile mode or in any case does not carry out any work activity, the other parent cannot ask to benefit from any of the above measures.
LDP Payroll stays at your disposal for any further clarification.
Arianna De Carlo – email@example.com
Head of Payroll Department