Snacks: Digestible Weekly Labour News – Issue 1016 April 2023

Efficacy erga omnes of proximity contracts
The Court of Appeal of Naples referred to the Constitutional Court the question of the constitutionality of Article 8, Decree-Law No. 138/2011, in so far as it extends the effectiveness of company or proximity contracts to all workers concerned, even if they are not signatories to the contract or belong to a trade union that is not a signatory, on the grounds of conflict (among others) with Articles 2 and 39, par. 1 of the Italian Constitution, in that it infringes the freedom of trade union organisation. The Constitutional Court found that the question of constitutionality raised was inadmissible and confirmed the effectiveness “erga omnes” (i.e. with respect to all workers) of proximity company agreements. In particular, the Constitutional Court reaffirmed the distinction between an “ordinary” company agreement, whose effectiveness is “only tendentially extended to all workers in the company”, since dissenting workers and trade union associations are excluded, and a proximity agreement endowed with “a general effectiveness ex lege”, i.e. extendable erga omnes to all workers in the presence of the conditions set forth in Article 8, Decree-Law No. 138/2011.
Constitutional Court, 28/03/ 2023 no. 52

Dismissal of a disabled person for exceeding the maximum sick leave period is void
An employer who applies the ordinary sick leave period for the dismissal of a disabled worker is liable for indirect discrimination and the dismissal is null and void. It is irrelevant that the CCNL provides for a single maximum sick leave period for all workers because the rules of the collective agreement in that case give rise to unequal treatment based on disability. The position of disabled employees cannot be regulated in the same way as those without disabilities, since the risk of accumulating sick days is greater for the former. Unequal treatment therefore arises since it contravenes not only domestic legislation (Article 2, Legislative Decree 216/2003), but also Directive 2000/78/EC and the UN Convention on the Rights of Persons with Disabilities. The “fight against absenteeism at work” is a legitimate aim pursued by collective agreements, but it cannot ignore the different conditions faced by disabled workers with respect to illness. Any employee dismissed in these circumstances has the right to be reinstated with compensation for the entire period of time not worked.
Cass. 31/03/2023 no. 9095

Whistleblower liable in case of wrongdoing
An employee who makes a report within the scope of a whistleblowing procedure is not exempt from personal liability if they are the subject of misconduct. The fact that the employee has reported a disciplinary offence of other employees to the internal service does not exclude that, in connection with that same offence, the whistleblower may themselves be subject to disciplinary action. The system may possibly recognise extenuating circumstances for the whistleblower but the responsibility of the whistleblower cannot be excluded.
Cass. (ord.) 31/03/2023 no. 9148

Collective dismissal confined to a business department
If a company restructuring has affected a specific department, the collective dismissal procedure may be limited to the perimeter of the workers employed in the aforementioned company department, unless one or more workers have previously worked in other company units. In the latter case, if the worker offers proof of his ability to carry out other jobs in other business units, the employer is responsible for proving the reasons for justifying their narrower scope of the choice of redundant workers. This applies only to employees that have carried out their career in the relevant company sector.
Cass. (ord.) 31/03/2023 no. 9128

Footage from video surveillance system used to prove disciplinary offence
Footage taken by company cameras was used to initiate disciplinary proceedings against an employee who shoved and pushed a student to the ground. Although surveillance systems are intended for safety purposes on a company premises and, therefore, are used for a purpose unrelated to work activity, footage from a surveillance system constitutes valid evidence for disciplinary purposes. If cameras have been installed in accordance with the provisions of Article 4 of the Workers’ Statute and are used in compliance with the relevant authority (trade union , Labour Inspectorate etc.), the footage may form part of evidence of unlawful conduct of an employee. In this case, relying on surveillance footage, the offending employee’s ten-day work and pay suspension was upheld.
Cass. (ord.) 23/03/2023 no. 8375

Deadline for contribution relief linked to gender equality postponed to the end of April
Employers who have obtained a gender equality certification are entitled to a contribution relief at the rate of 1% per worker, up to a maximum amount of €50,000 (Law No. 162/2021). The deadline to apply for the contribution relief expired on 15 February 2023, but INPS has now reopened the deadline and granted an extension until 30 April 2023 to late employers. It has also been specified that the application (“form Par_gen”) should not indicate the monthly salary of the individual worker, but the average monthly global salary with reference to a period covering the entire duration of the certification. The contribution facilities are available to employers who obtained the gender equality certificate by 2022.
INPS, Message 03/04/2023 no. 1269

Inail clarifications on protective equipment for VDT
Inail has provided clarification on the protective measures for the health risk of workers using video display terminals (“VDT”). Workers who use this equipment for at least twenty hours a week are subject to periodic health surveillance to monitor the condition of their eyesight, eyes and musculoskeletal system. Only special vision correction devices that are functional for the performance of the specific task assigned or aimed at preventing a risk to the health of the worker, are paid for by the employer, whilst normal eyeglasses remain the responsibility of the employee.
INAIL, Circular 24/03/2023 no. 11

Deadline for communicating heavy and night work extended
The deadline for communicating to the Ministry of Labour the hours of night work or heavy labour performed by workers, which was due on 31 March, has been extended to 17 April 2023. The communication of this data (provided for by Article 5 of Legislative Decree 67/2011) was to recognise social security benefits for workers who have been employed throughout their working life in hard labour or night work. To be eligible for pension benefits, workers must have performed such work for at least seven of the last ten years or for at least half of their entire working life. Night work, for these purposes, is work performed for at least three hours every working day of the year or for at least six hours in a 64-day period on an annual basis.
Ministry of Labour, Web Release 29/03/2023

Death from Covid-19 and presumption of workplace infection
The family of an employee of the Ministry of Justice who died after contracting Covid-19 during the height of the pandemic are entitled to damages from Inail, according to the Tribunal of Milan. This was on the basis that the deceased worked in a closed environment during the pandemic and was in contact with the public whilst at work. This gives rise to the presumption that they contracted Covid whilst at work and although it is not possible to fix a precise date on when they were infected, the fact that no family members had contracted Covid-19 it was reasonably presumed that the deceased was infected at work. Inail circular No. 13/2020 had specified that there is a high probability of infection for services requiring constant contact with the public. It was on this basis that damages were awarded.
Trib. Milan 08/03/2023