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Juridical-contractual analysis edited by the Departments Training and Contractual Theory

Legislative Decree 10/12/2003 n° 276 “Acomplishment of the proxies in terms of employment and labour market as provided by the Law n° 30 dated 14 th February 2003”. THE BIAGI REFORM. Juridical-contractual analysis edited by the Departments Training and Contractual Theory. Preliminary remarks.

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Juridical-contractual analysis edited by the Departments Training and Contractual Theory

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  1. Legislative Decree 10/12/2003 n° 276“Acomplishment of the proxies in terms of employment and labourmarket as provided by the Law n° 30 dated 14th February 2003” THE BIAGI REFORM Juridical-contractual analysis edited by the Departments Training and Contractual Theory

  2. Preliminary remarks Factors of influence • The evolution of the economic system, from the FORD production model to the FUNCTIONAL model, steered into core business and based on the decentralization, delocalization, dissolution of the very concept of company as an aggregation of people and means, in favour of that as an organization of people and means, not necessarily owned by the entrepreneur. • European legislation coherent with the previous evolution (Lisbon 2000) • A new model of union relations: from the… • Technical participative, non-conflictual CONCERTATION with 3 subjects: companies, trade unions, Government, who decide unanimously and with equal dignity, we have switched over to the… • SOCIAL DIALOGUE: preventive consultation, with more restricted time-limits, majority decisions not on matters of public expenses, with possible separate agreements (as associations and not by them!).

  3. Characteristics • THE RATIO OF THE LAW: more flexibility = more occupation = higher quality of the flexible work = minor illegality • Real protection of the workers deriving from a greater allocative efficiency of the labour market • The outsourcing policies are stimulated and supported • An ostentatiously ponderous law composed of 86 articles (Civil Code 50 articles concerning labour, The Wokers’ Statute of Rights 41 articles) • Numerous recalls to collective bargaining (at least 50) • References to regional legislation • Many elements of testability (30 articles out of 86) • Does not apply to the public works sector

  4. The principal novelties

  5. 1° THE EMPLOYMENT OFFICE Art. 4-7 New subjects THE EMPLOYMENT AGENCIES The law opens the way for private individuals to intermediate between the demand and the offer of labour for all the cases in point provided by the law. The following subjects are entitled of intermediation, subject to respect of some prescriptive provisions: • Public and private universities • Municipalities • Chambers of commerce • Second-degree schools (secondary schools) • Employers’ associations • Professional associations of labour consultants

  6. 2°TENDERSArt. 29 It is established that the contract by tender (that may have as subject matter the accomplishment of a work or service) differs from the distribution of work as the bidder organizes the necessary means and assumes the risk of the business. Hence, the contract by tender is only valid in the presence of an organization of means that may also result from: • the exertion of the organizational and managerial power by the top management of the contracting firm towards the workers used for the contract • the assumption of the risk of the business by the contracting firm The joint and several responsibility of the bidder and the contractor towards the workers is limited to 12 months after expiry of the contract and to what is due. The acquisition of the personnel already employed in the contract owing to the succession of a new contractor, according to the law, the national agreement or the provisions of the contract by tender, does not represent a transfer of a company or part of a company.

  7. 3°TRANSFER OF A COMPANYArt. 32 Replacement of art. 2112, comma 5 of the Civil Code The concept of company is changed: Organized economic activity: the property of work and equipment is left out of consideration, it is enough to organize them, the concept of company is dematerialized. It also applies to the transfer of a functionally autonomous part of the company identified by the parties upon transfer. It does not have to pre-exist, once it has been identified, it must only have a proper functional autonomy.

  8. 4°GIVING OUT OF WORKArt. 20-28 • It is the professional giving out of work with temporary or open-ended contract (staff leasing) that may be performed by all the subjects authorized, called giver, in favour of any subject called user. • The workers carry out their activity in the interest and under the direction and control of the user.

  9. GIVING OUT OF WORK • Welfare contributions: debited to the giver assigned in the tertiary sector. • Civil liability: the user is responsible for third-party damage caused by the worker. • Irregular giving out: (subjects not qualified or contract void) the worker can ask the user for the establishment of a subordinate employment relationship. • Fraudulent giving out: (against the law or NA) €20 fine per worker/day debited to the giver and user. • Joint and several obligation for contributions and salaries: the worker can ask the user for the payment of the salaries and contributions, on default of the giver.

  10. INTERMITTENT WORKOR JOB ON CALL Compared with the temporary work, the intermittent work can be characterized by bilaterality of the relationship, rather than the involvement three subjects. The contract must be written down and contain some essential elements, such as: • place • modality of execution of the work • notice of call (not inferior to 1 day) • duration and conditions of the stipulation • remuneration • safety measures at the working place etc.

  11. INTERMITTENT WORKOR JOB ON CALL It is prohibited In case of replacement of workers on strike In companies in C.I.G. or having undergone mass dismissals involving workers with the same functions during the previous 6 months In companies that do not fulfil the rule 626/94 NO

  12. 6°JOB SHARINGArt. 41-45 Definition The job sharing agreement is a “special employment contract” through which “two workers jointly and severally assume the fulfillment of one unique and identical working obligation”. Job sharing provides: • one sole subordinate employment contract and not two partial employment contracts, and there is • an obligation of solidarity of the working performance for each worker

  13. 8°INTEGRATION(former Training-Work) Art. 54-59 Replaces the current training agreement with the scope to “realize, through an individual project od adjustment of the professional competences, the integration or reintegration of a worker”. Scope and Offeree Integration or reintegration of the following categories: • subject of the age between18 and 29 years(without incentives) • long-term unemployed up to 32 years (being looking for a new job for more than 12 months) • unemployed workers with more than 50 years • workers who are unemployed for at least 2 years • unemployed women coming from areas with a female employment rate 20% inferior to the male or a female unemployment rate 10% superior to the male • people with serious physical, mental or psychic handicap

  14. INTEGRATION SUBJECTS ENABLED FOR THE REALIZATION • public corporations, companies, cooperatives, • company groups, • professional, socio-cultural and sports associations, • foundations, • public and private research laboratories, • trade associations. Not possible for professional men in one-man business In absence of specific contractual provisions, the working relationship, of workers employed with integration contracts, the same discipline as for the time contracts is applied to.

  15. CREDIT SECTOR Employment situation There is a dichotomy between the trend towards the blockage of some workers and great recourse to instruments of collective expulsion from work: law 223, redundancy fund. The workers are detained with very binding stability pacts and with non-competition pacts, but on the other hand, it is made great use of the instruments of mass expulsion of the workers, as agreement for the voluntary or compulsory access to the redundancy fund. Excellent income results of the banks and therefore much scope for job recovery.

  16. CREDIT SECTOR Application provisions law 30 ex NA “Priority will be the professional apprendiceship, the typical work contract with instructive contents present in our system” • Both full-time and part-time not less than 25 hours per week • Salary scheme inferior by 2 levels for 2 years then 1 level for another 2 years • Duration 4 years • Trial period of no more than 2 months • Internal and external training of at least 120 hours, also on the job and e-learning • Apprentices computed for the purpose of the trade union liberty • Testability until 31/12/2005

  17. CREDIT SECTOR Application provisions law 30 ex NA giving out of work The number of workers with temporary contracts in a company may not exceed 5% of the personnel employed with open-ended contracts of this very company. Integration contract The number of workers with integration contracts in a company, in accordance with the interconfederal agreement dated 11th February 2004, may not exceed 5% of the personnel employed with open-ended contracts of this very company.

  18. CREDIT SECTOR Application provisions law 30 ex NA The contracting parties reserve the right to regulate the following institutions in the national agreement, after the 31st December 2005: • Apprendiceship for the fulfilment of right-duty of instruction and training; • Apprendiceship for the acquisition of a diploma or for advanced studies; • Open-ended work contract; • Intermittent work; • Job sharing

  19. GENERAL CRITICAL STATE • Recall to excessive collective bargaining, often with risks of conflicts between different levels and with great power compared with the limits imposed by the law, possible seperate agreeements • Law too unbalanced towards the flexibilization rather than the protection, seen as an obstacle to be removed for the increase of employment • Uncovered the side of the social security cushion, a pillar for a flexibility that is not precarization • Incomplete law, that after a long time does not fulfil its effects in real terms, an estimated but not consultative balance possible. • Language not always clear and often interlarded with sociological and political neologism of difficult juridial application (e.g. art. 13 first comma “workfare”)

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