Thanks to Eleonora Ragagnin for collaborating on this article
The entry into force of Legislative Decree 104 of 2022 (hereinafter referred to as the “Transparency Decree”) on August 13, 2022, has raised several questions, especially with regard to how labor contracts shall be drafted (Please refer to our previous article: “Transparent and predictable working conditions: the new perspective from EU Directive 2019/1152”).
Two set of clarifications on the interpretation of the Transparency Decree have been provided. The first from the National Labor Inspectorate (in Italian Ispettorato Nazionale del Lavoro – INL) is dated August 10, 2022 (“Circular no. 4”), while the second from the Ministry of Labor is dated September 20, 2022 (“Circular no. 19”). Circular no. 19 is linked with Circular no. 4 with the aim of elaborating on additional aspects that have not been sufficiently clarified.
DUTY OF INFORMATION
The Transparency Decree introduced additional information requirements to those previously provided for drafting employment agreements.
Circular no. 4 states that information shall be sent by paper or electronic means (e.g., personal e-mail communicated by the worker, company e-mail provided by the employer/contracting company, intranet with a personal password).
Circular no. 19 stipulates that the employer/contracting company is required to provide the worker with basic information regarding the institutes mentioned in the Transparency Decree, with more detailed information available in the collective agreement (“CCNL”) or company documents that shall be delivered or made available to the worker.
This expansion of information obligations, however, is not fulfilled by abstract reference to the legal provisions governing the institutes at issue, but through communication of how these institutes are actually shaped in the relationship between the parties, including references to the CCNL applicable to the individual employment agreement.
Specifically, the circulars analyzed five of the disclosure requirements that raised the most questions, i.e. leave, remuneration, working hours, social security and automated systems.
Leave
The Transparency Decree requires the employer/contracting company to inform workers about the duration of vacation leave and other paid leave.
The employer/contracting company is required to inform workers of the regulations contained in the CCNL that are subjectively applicable to the employment relationship, in addition to providing general reminders of the applicable legal regulations.
As regards leave, firstly, only paid leave is relevant; there is no reporting requirement for unpaid leave and communication only concerns leave expressly named as such.
Remuneration
The Transparency Decree requires the employer/contracting company to provide workers with information regarding the initial amount of remuneration and its constituent elements.
The reference is only to the components of remuneration which are objectively possible to determine at the time of employment, according to the law or the CCNL. Moreover, the employer/contracting company shall indicate the criteria to recognize or pay variable elements.
Finally, corporate welfare measures or meal vouchers are not subject to disclosure unless they are provided for by the CCNL as components of remuneration.
Working hours
The information shall focus on the organization of the working hours applicable to the worker, conditions of shift changes, methods and limits of performing overtime work and related remuneration.
If changes occur later, information is only required if the changes affect the schedule structurally or for a significant period.
In the case of shift work and multi-period work, it will be sufficient to indicate that the worker is included in this definition. Discontinuous hours (e.g. in the case of bellhops) also falls under the notion of predictable work.
Social security
The Transparency Decree requires the employer/contracting company to provide workers with (i) information regarding the entities that receive social security and insurance contributions from the employer/contracting companies and (ii) an indication, based on the CCNL applicable to the employment agreement, of the possibility of joining supplementary company or sectoral pension funds.
Automated systems
Circular no. 19 also explains the employer/contracting company’s duties of information in the case of the use of automated decision-making or monitoring systems.
Sec. 1-bis, para. 1 states: “Public and private employers or principals are required to inform workers of the use of automated decision-making or monitoring systems to provide indications relevant to the recruitment or assignment, management or termination of the employment relationship, assignment of tasks or duties as well as indications incidental to the supervision, evaluation, performance and fulfillment of workers’ contractual obligations. This is without prejudice the provisions of Section 4 of Law No. 300 of May 20, 1970.”
Specifically, it highlights two hypotheses of the employer/contracting company’s use of decision-making or automated monitoring systems that (i) are aimed at carrying out a decision-making process capable of affecting the employment relationship or (ii) affect the supervision, evaluation, performance and fulfillment of workers’ contractual obligations.
Considering the first point, the at-issue systems shall be defined as tools which, through the data collection and data processing activities carried out by means of e.g. algorithms or artificial intelligence, are capable of generating automated decisions. The duty of information exists even in the case of a human intervention which is merely incidental.
The Transparency Decree requires the employer/contracting company to make disclosures when the regulation of the employee’s working life, or particular relevant aspects thereof, is entirely conducted through the decision-making activity of automated systems (e.g. screening of curricula, use of chatbots during interviews). Otherwise, no disclosure is necessary in the case of the use of automated systems for recording incoming and outgoing attendance, for example, without any subsequent fully automated decision.
Analyzing the second point, the employer/contracting company shall inform workers of the use of such automated systems (e.g. tablets, GPS, ranking systems).
The disclosure requirement introduced by Sec. 1-bis also finds application in relation to the use of automated decision-making or monitoring systems integrated in the instruments used by workers, when they have the technical characteristics and functions described above.
CONCLUSIONS
The interpretative difficulties of the Transparency Decree have not been completely resolved, even with the two circulars mentioned and partially analyzed above.
In any case, it should be noted that, as of September 30, 2022, the new “Norms and Collective Agreements – CNEL Archive” area has been introduced on the website of the Ministry of Labor and Social Policy with the aim of making regulatory provisions and national collective agreements on the information to be communicated by employers/contracting companies to workers clear, easily accessible and fully available. The area is divided into two sections, one allowing detailed consultation of collective agreements, the other containing the Frequently Asked Questions (FAQs) on the main institutes of the private labor relationship.
