Modification of working conditions in Italy
| Autor | Matteo Corti |
| Páginas | 42-49 |
Page 42
Yes, in the Italian legal system it is possible for the employer to unilaterally modify employees’ functions, however according to the very strict rules contained in article 2103 of the Civil Code. The provision, which was completely changed by article 13 of the Workers’ Statute (Act 21 May 1970, n. 300), distinguishes between horizontal mobility and vertical mobility, though leaving (at least apparently) no room to downgrade employees.
So may the employers change the job of their employees provided that they grant them the same level of remuneration (principle of irreducibility of the salary) and the new tasks are "equivalent" to those performed before the modification. The law does not clarify which kind of equivalence is required between the old and the new tasks: however, since the previous level of remuneration is already separately guaranteed, legal scholars and judges agree that the old and new jobs must have a similar professional content. Nonetheless, "professional equivalence" is a very controversial juridical concept: whereas amongst the legal scholars a broader interpretation tends to prevail, with the aim of granting the employer sufficient functional flexibility, a high number of judicial decisions, even in recent times, require that the employee by performing the new job use almost the same skills and knowledge as in the previous position. It should be noted that in principle these rules may not be derogated by collective agreements. There are, however, two exceptions. Firstly, in the public sector collective bargaining is allowed to decide which professional profiles are equivalent, so determining the degree of functional flexibility granted to the employer. Secondly, since 2011 collective agreements concluded at plant and territorial levels by comparatively more representative trade unions and by their bodies in the firms enjoying the support of the workforce majority may derogate, inter alia, from article 2103 of the Civil Code, provided that some (quite general) objectives are pursued and international conventions, EU law and Constitutional principles are respected (article 8, Decree Law n. 138/2011).
Page 43
Under article 2103 of the Civil Code there are no particular restrictions to vertical mobility: moreover, special rules are provided in order to protect employees who are given a new (and more important) job. More precisely, if an employee is moved to a job corresponding to a higher classification in the job scale, he is entitled to the higher pay corresponding to the new position and, after the period set by collective agreements (but in any case not longer than three months) the assignment becomes definitive (principle of the so called "automatic promotion"). However, if the employee is moved to...
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