The Italian government’s labour reforms continue with the adoption of the so-called ‘Jobs Act’. It introduces mobility within and between staff levels, allowing employers to assign workers different job tasks belonging to the same, or even lower, staff level for which they were hired. It has been welcomed by employers but unions have raised some concerns.
The Italian government has continued its labour reforms with the adoption of the so-called 'Jobs Act' which introduces changes to the rules on job tasks.
Article 3 of Legislative Decree 81/2015 of 15 June 2015 (the Labour Contracts Code or 'JACode') removes existing limitations on the right to unilaterally change the terms of an employment contract after its agreement. It also modifies Article 2103 of the Italian Civil Code. After reaffirming that workers should be assigned to the jobs for which they have been hired or to carry out tasks which they have performed throughout their working life (paragraph 1 of Article 3 of Decree 81/2015), the government (the delegated legislator) now allows employers to reclassify staff categories so as to introduce mobility within and between staff levels.
The government has removed the limitations imposed by a worker's set of competencies so that the worker can now be assigned to any job tasks belonging to the staff level corresponding to the job tasks they already carry out.
The criterion of equivalent tasks which, according to established labour court case law, constituted the foundation for the protection of the set of acquired professional competencies, is replaced with a reference to ‘job tasks attributable to the same level and the same legal staff category of the latest job tasks actually carried out’.
According to the law, within the framework of the same staff and pay level, and without prejudice to the legal staff category, a worker can be assigned any tasks whatsoever as envisaged by the classification system of the relevant collective agreement.
Employers are now also allowed to assign employees to job tasks belonging to a lower staff level – without prejudice to the legal staff category to which they belong – ‘in the case of modifications to company organisational patterns that affect the worker’s position’ (paragraph 2) or in ‘other cases’ to be identified by collective agreements (paragraph 4).
In this case, the protection of workers is ensured through:
With the reference to ‘modifications to company organisational patterns’, the government has introduced – through a general clause – a further case of a justified objective reason. In fact, such changes are merely organisational decisions falling within the authority of businesses and arising from their unquestionable choices. With regard to the causal link, these decisions justify management's action related to the employment relationship – assigning workers to job tasks that correspond to a lower staff level.
The government has also clarified that 'significant' changes are those that ‘affect the worker’s position’. Therefore, these changes to the worker’s position do not arise indirectly from the assignment to different job tasks so as to meet business needs, but represent the necessary and direct effect of the organisational act itself. For an assignment to lower-level tasks to be lawful, it is not enough for an organisational change to create vacant job positions at that level. Instead, job tasks assigned to the worker have to be eliminated in whole or in part, either temporarily or permanently. The effect of the organisational change must result in the worker’s tasks, as originally envisaged, becoming no longer useful to the company. The burden of proof is on the employer.
The assignment to lower-level tasks can be to no more than one level below and with the retention of the previous level of pay. Collective agreements are permitted to identify ‘further’ cases to those envisaged by the government on top of the changes outlined above to company organisational patterns.
Reaction from social partners
Employers’ organisations have welcomed the new rules. The General Confederation of Italian Industry (Confindustria) takes a positive view of the reform of the rules, which date back 40 years and, it believes, are no longer appropriate to the current socioeconomic context. Confindustria claims that, in a rapidly changing environment, flexibility of staff levels enables businesses to respond even more promptly to change. A more cautious, albeit favourable, stance is taken by the Italian Enterprise Network (R.ETE. Imprese Italia), which represents the five confederations of small and medium-sized enterprises (SMEs). It points to the lack of specific cases that cannot be tackled by collective bargaining.
Among the trade unions, the Italian General Confederation of Work (CGIL) has expressed the strongest opposition to the solution advanced by the government, alleging that it would lead solely to a reduction in workers’ pay. The Italian Confederation of Workers’ Unions (CISL) holds that modifications to the rules on job tasks should be analysed carefully – also with reference to possible excessive delegation – and gives prominence to the role of collective bargaining.
It remains to be seen how the courts will react to the new legislative approach. Will they be willing to recognise the existence of an exceptional right to unilaterally modify the terms of the contract? Or will the legislative framework be thoroughly changed by the judges’ discretional assessments on the very broad clause concerning ‘modifications to company organisational patterns’.
In introducing changes to mobility within and between levels, the government has not limited itself to stressing a worker’s multifunctionality but has also ruled on the exercise of an employer’s right to reclassify staff levels, and thus apparently enabling high professional mobility. This mobility is slightly mitigated by the limitation imposed by the legal definition of 'staff category'. This protects managers, as well as executives who are in any case excluded from staff categories. However, the only guarantee to other employees and workers is a macro-distinction across central levels of the integrated staff classification.
There are, however, a number of other new features. In paragraph 6, the legislation introduces the possibility for the parties to sign an agreement to modify job tasks, the staff category, and the level of classification and related pay so that the workers retain their job, acquire different vocational competencies, or improve their living conditions. All of this should occur within a ‘protected environment’. This could be:
According to the norm, workers may seek the assistance of their trade union representative or give a mandate to a lawyer or a labour consultant.
In such cases, the legislation does not explicitly refer to the existence of organisational processes. However, the interest in protecting employment should be linked to cases of modifications to company organisational patterns and to cases where the company needs to reduce labour costs to safeguard employment.
In the new rules on job tasks, the only reference to the protection of a worker's set of professional competencies is represented by the employer’s obligation to provide training in the case of ‘changes in job tasks’. This therefore applies to both horizontal and vertical mobility. However, the employer is obliged to provide training only ‘where necessary’. Furthermore, non-compliance with that obligation does not invalidate the act (paragraph 3).
The reform of the rules on job tasks is also related to the 'repêchage' obligation, which derives from case law. As defined by Mondaq.com: 'in a case of dismissal for an objectively justified reason, the employer must evaluate whether the employee can be employed in another role within the company before it decides to terminate the employee. This is termed the "duty of repechage".' Several times in recent years, case law has actually focused on the employer’s obligation to provide workers with a new placement – including at a lower level than the one previously assigned. In such cases, however, the worker was entitled to retain their previous pay level. The new law goes beyond this by allowing for the modification of staff levels and pay through individual agreements.
For a complete overview of the Jobs Act reform, please see our articles addressing: the new dismissal regime, the reform of unemployment benefits and of temporary unemployment benefits, the reshaping of employment relationships, the rationalisation of inspection activities, the reorganisation of active labour market policies, the measures targeting economically dependent self-employed work.