Introduction
The Article 8 of DL No. 138 of 2011, converted into Law No. 148 of 2011, introduced a true revolution in the sources of law, as it – for the first time in the Italian legislative panorama – allowed second-level agreements (therefore, agreements concluded at the company or territorial level) to derogate in peius from current legal provisions and also from regulations contained in national collective labor agreements. Previously, only collective labor agreements (CCNL) could derogate, and only in a positive sense, from the provisions of a higher-ranking source of law.
This ability to derogate, however, cannot be unconditional, especially in a historical, social, and cultural context where the phenomenon of so-called “contractual dumping” has unequivocally shown that there are trade unions whose main goal is not the protection of workers and their rights. Consequently, the legislator intervened to establish the conditions that must be respected so that second-level agreements can introduce such derogations, specifying:
- who the subjects authorized to sign the aforementioned agreements are;
- what topics these agreements may address;
- what goals the agreements in question must necessarily pursue.
This article aims to precisely identify the conditions that underlie the legality and effectiveness of the “proximity contract” as well as the limits to which it must adhere. It also examines, with specific reference to the fixed-term contract, whether and what derogations can be introduced to the discipline currently in force and defined by Legislative Decree No. 81/2015.
Authorized parties to sign proximity agreements and their objectives
Not all second-level agreements can provide derogations from legal norms or regulations defined by national collective labor agreements (CCNL). In fact, in accordance with Article 8, paragraph 1 of DL 138/2011, this authority is granted exclusively to “collective labor agreements signed at the company or territorial level by associations of workers that are comparatively more representative at the national or territorial level, or by their union representatives operating in the company under the provisions of law and current inter-confederal agreements, including the inter-confederal agreement of June 28, 2011 (…)”.
For the identification of “comparatively” more representative worker associations (which do not necessarily coincide with those “most” representative, as this criterion exclusively emphasizes the number of members), the Ministry of Labor, in consultation No. 27/2015, identified the following evaluation indices/parameters:
- the total number of employed workers;
- the total number of associated companies (this applies exclusively to category associations representing employers);
- territorial distribution (both in terms of the number of offices present in the territory and in terms of the sectors in which the organization operates);
- the number of national collective agreements signed.
From another perspective, the aforementioned paragraph 1 provides that these agreements must necessarily pursue specific objectives; in fact, for their effectiveness and validity, these agreements must be aimed at promoting:
- increased employment,
- better quality of employment contracts,
- the adoption of forms of worker participation,
- the emergence of irregular work,
- increases in competitiveness and wages,
- the management of corporate and employment crises, investments,
- the start of new activities.
Consequently, any agreements that do not pursue the described objectives are not to be considered legitimate, and similarly, the treatments and rules they introduce that derogate from legal and CCNL provisions are also not legitimate.
Moreover, the same jurisprudence (see, for example, Cass. 19660/2019 and Trib. Florence No. 528/2019) has clarified that not only is the legitimacy of the derogation introduced by an agreement subject to the fact that it pursues one of the legal purposes, but it has also made clear that a mere reference to these purposes in the agreement is not sufficient; rather, there must be a specific indication of the objectives being pursued as well as the factual circumstances that justify the derogations introduced.
Furthermore, paragraph 2 of Article 8 of DL No. 138/2011 also provides a strict list (which, as such, does not allow any extensive interpretation) of the matters that can be derogated from by the agreements in question. Specifically, these agreements *“may concern the regulation of matters relating to work organization and production with reference:
a) to audiovisual systems and the introduction of new technologies;
b) to the tasks of the worker, the classification and grading of staff;
c) to fixed-term contracts, reduced, staggered, or flexible working hours contracts, the regulation of solidarity in subcontracting, and cases of recourse to labor supply;
d) to the regulation of working hours;
e) to hiring procedures and regulation of the employment relationship, including coordinated and continuous collaborations on a project basis and VAT numbers, the transformation and conversion of employment contracts, and the consequences of termination of employment, except for discriminatory dismissal and dismissal of a female worker in connection with marriage.**
In conclusion, only agreements signed:
by the union representatives identified by Article 8, paragraph 1 of DL No. 138/2011, based on a majority criterion relative to these union representatives (meaning that the majority of interested workers is not required, but the majority of the unions involved in the negotiation is sufficient),
- for the purposes specified in the same paragraph,
- regarding the matters identified in the subsequent paragraph 2, can operate, as defined by paragraph 2-bis, while respecting the Constitution, as well as the constraints derived from EU regulations and international labor conventions, “in derogation from the provisions of law (…) and the related regulations contained in national collective labor agreements” with *erga omnes* effect, i.e., for all employees of the company/companies to which the agreement applies.
Derogations from the current rules on fixed-term contracts
As examined above, Article 8, paragraph 2, of DL No. 138 of 2011 expressly includes fixed-term contracts among the matters that can be subject to derogations provided by proximity contracts.
If such a derogation power was understandable at the time of the enactment of DL No. 138/2011, considering that the regulation of fixed-term contracts was then contained in the now-repealed Legislative Decree No. 368/2001, which imposed strict limits on the use of these contracts, the advent of Legislative Decree No. 81/2015 (and subsequent amendments) and the broad delegations granted by it to collective bargaining have, in the opinion of the writer, diminished the need to derogate from the current legal provisions on fixed-term contracts.
In fact, under the current legislative framework, collective agreements — understood as “national, territorial, or company-level collective agreements signed by comparatively more representative national trade union associations and company collective agreements signed by their company union representatives or the unitary trade union representation” (Article 51, paragraph 1, Legislative Decree 81/2015) — can:
i) identify cases where the contract may last longer than 12 but not more than 24 months (Article 19, paragraph 1);
ii) provide exceptions to the rule that the duration of fixed-term employment relationships between the same employer and the same worker, for tasks of the same level and legal category, cannot exceed twenty-four months, regardless of the periods of interruption between one contract and another (Article 19, paragraph 2);
iii) identify cases where the rule of so-called “Stop & Go,” which requires a predetermined break between the expiration of one fixed-term contract and the signing of a subsequent fixed-term contract, does not apply (Article 21, paragraph 2);
iv) provide numerical limits for the use of fixed-term contracts different from those defined by law, which is set at 20% of the number of permanent workers as of January 1 of the hiring year (Article 23, paragraph 1);
v) derogate from the right of precedence in permanent hiring recognized to workers who have already had fixed-term employment relationships with the same employer under specific conditions.
Even considering the above, however, there are still several important areas of application for proximity contracts in defining derogations from the regulation of fixed-term contracts.
Indeed, through proximity contracts, the contracting parties may:
1) agree on an extension of the temporal period — set by law at 12 months (Article 19, paragraph 1, Legislative Decree No. 81/2015) — during which no condition is required for the fixed-term contract (the so-called “causality-free” period), a solution that would facilitate the use of fixed-term contracts for medium-long periods, overcoming the difficulties inherent in identifying specific justifying reasons (even though the parties would still be required to justify, as seen above, the reasons for the derogation they intend to introduce to the current regulations); 2) agree on an extension of the so-called causality-free period also for the renewal and extension of fixed-term contracts; 3) agree to increase the number of contract extensions, currently set by law at four (Article 21, paragraph 1, Legislative Decree No. 81/2015); 4) provide for a reduction in “Stop & Go” times (the possibility for collective bargaining to provide for cases where this does not apply is already contemplated, as seen above, by the current fixed-term regulation), currently set by law at 10 days from the expiration date of a contract lasting up to six months, or 20 days for contracts lasting more than six months (Article 21, paragraph 2, Legislative Decree No. 81/2015).
In evaluating the scope for derogation offered by proximity contracts regarding fixed-term contracts, one must not forget what was anticipated earlier, namely that derogations must ensure compliance with the Constitution and, especially concerning the matter at hand, with EU regulations and international labor regulations.
In this regard, it should be noted that Directive 1999/70/EC required Member States to provide within their national legal frameworks one or more measures aimed at:
- providing for the necessary existence of objective reasons to justify the renewal of fixed-term contracts;
- introducing a limit on the total duration of fixed-term employment relationships that can be established with a particular worker;
- introducing limits on the renewal of contracts.
In this context, therefore, the parties to a proximity contract may well intervene by modifying or even disapplying one of the obligations imposed by the aforementioned directive and transposed into national law; however, they are prohibited from providing for the simultaneous disapplication of all these obligations.
We remain available for any further discussion deemed appropriate.