On July 29, 2022, the text of Legislative Decree No. 104 of June 27, 2022 (which came into force on August 13, 2022) was published in the Official Gazette (No. 176). The aforementioned decree was approved in implementation of Directive (EU) 2019/1152 of the European Parliament and of the Council of June 20, 2019 on the need to adopt transparent and predictable working conditions in the European Union.
The right to information on the essential elements of the employment relationship and working conditions, as governed by the rule under comment, applies to (i) permanent and fixed-term subordinate employment contracts, even if carried out on a part-time basis, including agricultural labor contracts; (ii) temporary employment contracts; (iii) intermittent employment contracts; (iv) collaborations with predominantly personal and continuous performance organized by the principal as referred to in Article 2, paragraph 1, of Legislative Decree June 15, 2015, no. 81; (v) to contracts of coordinated and continuous collaboration referred to in Article 409, no. 3, c.p.c.; (vi) to occasional services referred to in Article 54-bis of Decree-Law No. 50 of April 24, 2017; (vii) to public, maritime and domestic labor relations.
The employer bears the burden of communicating to each worker in a clear and transparent manner the information required by the decree under comment, a burden that can be met by communication in paper or electronic format.
The aforementioned information must be communicated by the employer at the same time as the hiring and before the performance of the service begins and, in any case, within the following 7 days; on the other hand, with regard to employment relationships already in existence on the date on which Legislative Decree No. 104/2022 came into force, it is provided that the information obligations must be fulfilled by the employer at the request of the worker, within 60 days of the request. In the case of changes to the conditions of the employment relationship that occurred during the term of the relationship (except for changes provided for by law or collective bargaining), these must be communicated to the worker by the first day of the effective date of the change that occurred.
Turning to the content of the information pertaining to working conditions to be communicated to the worker, these are the typical data and conditions of the employment relationship (the identity of the parties, the place of work, the location of the employer, the grading, level and qualification assigned to the worker, the date of commencement of the relationship, the type of employment relationship, the length of the probationary period the duration of vacation leave as well as other paid leave to which the employee is entitled, any right to receive training provided by the employer, the terms of notice in the event of termination, the initial amount of pay, the CCNL and any company collective agreements applicable to the employment relationship, and the bodies and institutions receiving social security and insurance contributions).
It is also necessary to inform the worker of the scheduling of normal working hours and any conditions relating to overtime work and its remuneration, as well as any conditions for shift changes, if the labor contract provides for the organization of working time in whole or in large part predictable; otherwise, if the employment relationship, is characterized by arrangements that are difficult to foresee, the employer shall inform the employee about the variability of the work schedule, the reference hours and days on which the employee is required to perform work, and the minimum notice period to which the employee is entitled before the commencement of work.
And again, it should be noted that Legislative Decree No. 104/2022 introduces new disclosure requirements, in this case to be communicated not only to the employee but also to union representatives, if the employer uses automated decision-making or monitoring systems aimed at detecting data useful for recruitment, management and termination of the relationship, or relating to the supervision, evaluation and performance of the service. Without prejudice to existing privacy obligations and regulations on remote control, an employer who uses automated decision-making or monitoring systems must specify the purposes for which it uses such systems, how the systems operate, their level of security, and the aspects of the employment relationship on which their use impacts. The worker, for his or her part, has the right to request, including through union representatives, access to the data processed through the automated decision-making or monitoring systems used.
Lastly, the provision under comment introduced specific information requirements for an employer who posts a worker to a member state or a third state as part of a transnational provision of services; in such cases, the employer is required to provide the posted worker, in writing and prior to departure, with the following additional information: (i) the country or countries in which the work abroad is to be performed and the expected duration; (ii) the currency in which the remuneration will be paid; (iii) any additional benefits in cash or in kind inherent in the tasks performed; (iv) where repatriation is contemplated, the conditions governing it; (v) the remuneration to which he/she is entitled in accordance with the law of the host Member State; (vi) any specific allowances for the posting and the arrangements for reimbursement of travel, board and lodging expenses; (vii) the address of the State's institutional website where information on the posting is published.
Violation of information obligations with reference to the data to be reported results in the employer being charged an administrative penalty ranging from 250.00 euros to 1,500.00 euros for each worker for whom the obligation has been violated. In addition, the worker who reports the breach is protected from any retaliation or unfavorable measures taken by the company against him or her: in fact, in addition to the nullity of the measure, there is also an administrative sanction ranging from Euro 250.00 to Euro 1,500.00 that is added to that already provided for the violation. On the other hand, for violations of information obligations relating to the use of automated decision-making or monitoring systems, the penalty ranges from 100.00 euros to 750.00 euros, for each month and is increased by bands in relation to the number of workers affected by the violation.
