National Labour Inspectorate note of 16.7.2021 takes stock of the layoff blockade 23 July 2021 – Posted in: News – Tags: , , , , , , , , ,

By the lawyers Mr. Augusto Vacca and Mr. Giuseppe Lucchese

The ban on layoffs for objective justifications, prescribed by the Italian legislature starting from 17 March 2020 due to the emergency caused by Covid-19, has been the subject of various legislative interventions, which have from time to time extended its duration and modified the number of beneficiaries.

The preclusion was generally introduced by Decree-Law no. 18/2020 (so-called “Cura Italia”), but was subsequently amended several times, resulting – after the entry into force of Decree-Law no. 41/2021 (so-called “Decreto Sostegni”), Decree-Law no. 73/2021 (so-called “Decreto Sostegni Bis”) and the recent Decree-Law no. 99/2021 (so-called “Decreto Lavoro e Imprese”) – into a complex and articulated discipline.

Very briefly, the layoff blockade came to an end, with some exceptions, on 30 June 2021 for companies falling under the ‘CIGO’ (ordinary redundancy fund). On the other hand, the block will remain in force until 31 October 2021 for companies that can have access to the ordinary subsidy granted by the ‘FIS’ (Wage Supplementation Fund) or Bilateral Funds or can benefit from the ‘CIGD’ (Wages Guarantee Fund In Derogation) or, in the agricultural sector for permanent workers, the ‘CISOA’ (Wage Guarantee Fund for Agricultural Workers).

In a note of 16.7.2021, the National Labour Inspectorate provided a series of interpretative clarifications and operational indications on the reactivation of the conciliation procedures, which had been suspended during the emergency period, that the employer must mandatorily initiate before imposing a dismissal for objective justified reason against an employee subject to the discipline of Article 18 of the Workers’ Statute.

According to the interpretation provided by the National Labour Inspectorate, after acquiring the opinion of the Legislative Office of the Ministry of Labour and Social Policies, “starting from 1 July 2021, pursuant to Article 8, paragraph 1, of Decree-Law No. 41/2021, the prohibition on layoffs has ceased to apply only to companies that make use of the CIGO, identified pursuant to Article 10 of Legislative Decree No. 148/2015 (referring substantially to industry and manufacturing)“.

On the other hand, by the power of Decree-Law No. 73/2021 and Decree-Law No. 99/2021, the layoff preclusion was also extended beyond 30 June 2021 for companies that make use of the CIGO in the following cases:

“– for textile companies defined according to the Ateco2007 classification, with codes 13, 14 and 15 (manufacture of clothing and leather and fur articles and manufacture of leather and similar articles), the layoff prohibition is extended until 31 October 2021 (Article 4, paragraph 2, Decree-Law No. 99/2021) by reason of the doable access to an additional payroll subsidies’ period of 17 weeks from 1 July to 31 December. The prohibition operates regardless of the actual utilisation of the wage supplementation tools;

  • for the other companies falling within the scope of the CIGO, the possibility of dismissing employees is prohibited pursuant to Articles 40, paragraphs 4 and 5, and 40 bis, paragraphs 2 and 3, of Decree-Law No. 73/2021 to employers who have submitted an application for the use of the wage supplementation tools pursuant to Articles 40, paragraph 3 and 40 bis, paragraph 1, for the entire duration of the benefit and up to 31 December 2021 at the latest. The ratio of these rules lies, therefore, in linking the layoff prohibition to the application for wage supplementation and thus to the period of authorised treatment and not to the period actually benefited. Article 40(1) also provided the opportunity to enter into a solidarity contract in derogation to which the legislator did not expressly link the continuation of the layoff prohibition. It should, however, be considered the defensive purpose typical of the solidarity contract, aimed at preventing staff redundancies and dismissals, which constitutes an essential element of the agreements referred to in Article 21(5) of Legislative Decree No. 148/2015“.

Finally, it is useful to remember that, even in the event of a layoff freeze, it is still possible to terminate the employment relationship in the following cases:

 

  • when staff are involved in a change of tender to which the so-called ‘social clause’ applies;
  • if the company permanently shuts down or goes bankrupt but is not provisionally exercised;
  • if a collective company agreement has previously been signed between the company and at least one of the most representative trade unions at national level, to which the employee voluntarily adheres and which contemplates the incentivised employment termination, with entitlement, in this hypothesis, to unemployment benefits (so-called ‘NASPI’).