November 18, 2024
Transnational secondment
Italy-China Agreement: Clear Rules for Employment and Cross-Border Directors
With the ratification of the agreement between Italy and China on double taxation, significant rules are also introduced for employment income and director compensation.
For employees engaged in transnational activities, the agreement establishes that taxation occurs in the country of residence, unless the worker performs the activity in the other contracting state for more than 183 days in a fiscal year. This provision aims to ensure a clear and uniform management for seconded workers or those employed in international projects.
Regarding director compensation, the agreement stipulates that it will be taxed in the country where the company paying the compensation is located, regardless of the residence of the director. This rule is designed to prevent conflicts of fiscal jurisdiction and facilitate administrative compliance for both Italian and Chinese businesses.
Therefore, the agreement provides an important framework for companies with interests in both countries, facilitating tax planning and ensuring legal certainty.
November 21, 2024
Disability
Reasonable Accommodation: An Employer’s Duty Towards Disabled Workers
Cass., Employment Section
A worker with a 100% disability and severe handicap had been dismissed for unjustified absence after refusing to return to the original office location, which was far from his oncological treatment center, following the expiration of an unpaid leave. The worker had unsuccessfully requested a transfer to a location closer to the treatment center.
Both the Court of First Instance and the Court of Appeal upheld the dismissal, arguing that there was no proof that returning to the original office would make it impossible to continue medical treatment. The Supreme Court overturned these decisions, emphasizing the employer’s obligation to provide “reasonable accommodations” for disabled workers. This duty ensures the effective enjoyment of the right to health and private life, as recognized by both national and EU law.
The Court clarified that failure to comply with this obligation constitutes direct discrimination, rendering the dismissal invalid. Reasonable accommodation, as an essential element for workforce inclusion, cannot be bypassed, and the employer cannot benefit from such a violation. This principle strengthens the protection of people with disabilities, requiring employers to pay special attention to their specific needs.
October 9, 2024
Maternity and Paternity
Irrevocable Acquired Rights Are Only Those Already Part of the Worker’s Entitlement
Milan Court
A female employee, nearing the end of her maternity leave, had requested to take her daily rest breaks consecutively at the end of the workday, thereby finishing her shift two hours earlier. This request was made because her child was enrolled in daycare, and the only time the employee could spend with her child was at the end of the day.
The employer, however, rejected the request, citing organizational difficulties in covering the store’s closing shift, instead offering a schedule of one hour of break time in the morning and one hour in the afternoon.
The Court accepted the employee’s request, clarifying that the worker has the right to take the daily rest breaks consecutively if a fragmented break would not allow her to care for the child. In balancing interests, the company’s needs must be considered secondary to the child’s care, family life, and mother-child relationship.
October 9, 2024
Compensation and Benefits
Meal Vouchers: A Welfare Right Subject to Collective Bargaining
Rome Court
A group of employees filed a lawsuit to claim the right to meal vouchers, arguing that the shift system at their workplace justified the provision of these benefits. However, the Rome Court dismissed their claim, clarifying that meal vouchers are not considered part of the salary but rather a welfare benefit, which is directly linked to applicable collective bargaining agreements.
The Judge reiterated that the right to meal vouchers does not automatically arise from the work performed but depends on the specific provisions of the collective contract. In this case, the plaintiffs were unable to demonstrate that the applicable collective agreement provided such a right, while the employer proved that alternative solutions, such as agreements with local businesses for meal services, had been implemented in compliance with the collective rules.
This decision reinforces the established view: meal vouchers are a discretionary benefit subject to the terms of the collective contract. They are not a salary component but a benefit intended to balance work and personal needs, dependent on the work schedule defined by collective bargaining.
October 11, 2024
Unlawful Dismissal
It Is the Worker Who Must Prove They Were Dismissed
Cass., Employment Section
The Court of Appeal ruled in favor of a female employee, a veterinarian, working for a professional studio, declaring her oral dismissal null and ordering the employer to pay the indemnity in lieu of reinstatement, as well as any wage differences and severance pay.
The Supreme Court upheld the decision, affirming that when a worker challenges their dismissal, alleging it was communicated verbally, they bear the burden of proof. In this case, based on the evidence gathered, it was determined that the worker had been prevented from performing her duties and was instructed to leave the workplace and return the keys and equipment, treating this conduct as an indication of the employer’s intention to terminate the employment relationship.
November 5, 2024
Business Transfer
Dismissal Follows the Transfer of the Contract: Clarification on Corporate Succession
Cass., Employment Section
A worker dismissed for disciplinary reasons in 2012 had his contract transferred, with consent, to a new company in 2015. Later, the legality of the dismissal was confirmed in appeal in 2019, leading the new company to formalize the termination of the relationship. The worker challenged the dismissal, arguing it was illegitimate because the new employer had not been directly involved in the original legal proceedings. The Supreme Court dismissed the appeal.
The Court clarified that the transfer of an employment contract under Article 1406 of the Civil Code involves the transfer of all active and passive relationships, including ongoing legal proceedings, to the new employer, without the necessity for the new employer to participate in previous lawsuits. Additionally, it is not required to explicitly mention an ongoing dismissal in the transfer deed for the succession effect to apply. This interpretation confirms the validity of succession even without direct involvement of the transferee company in the original proceedings.
November 21, 2024
Health and Safety at Work
Biennial Update Obligation for Supervisors: Clarifications from the Ministry of Labor
Ministry of Labor
The Chamber of Commerce of Modena asked the Interpellation Commission for clarification on the frequency of the mandatory safety update for supervisors. The question arose from a potential discrepancy between Law No. 215/2021, which establishes a biennial obligation, and the State-Regions Agreement of 2011, which set a five-year cycle.
The Commission clarified that, following amendments introduced by Legislative Decree No. 81/2008, supervisors must undergo updates at least every two years. This periodicity ensures ongoing alignment with emerging risks or regulatory changes related to safety. Moreover, the entire training activity must be conducted in person, ensuring more effective transmission of necessary skills.
This clarification confirms that employers must carefully plan the training of their staff, considering new legislative obligations to avoid potential penalties and promote safe and compliant work environments.
