The enabling law n. 183/2014 (known as the Jobs act) outlined the guiding principles and criteria (pursuant to the provisions of article 76 of the Constitution) for a broad review of the matter of the so-called social safety nets or those measures to support the income (of a social security and/or welfare nature) established by the legislator when - during the course of work or at the end of the same - the salary that allows the worker to provide for himself and his family is lacking. Moreover, even the Constitution, in article 38, paragraph 2, inserts involuntary unemployment among the events in the face of which workers have the right ''that adequate means for their life needs be provided for and ensured''.
All of this is discussed in "the new social safety nets in the Jobs Act" written by Giuliano Cazzola, one of the leading experts on labor problems, for Giuffrè Editore.
The list indicated is not exhaustive, so much so that, for some time now, income support legislation has been established and consolidated even in cases where, in the presence of a "typical" cause for suspension of the benefit, the normal remuneration from the employer. There are various causes of suspension for which a form of insurance, social security and/or contractual protection is in place. In their heterogeneity, the doctrine has classified these causes according to two main divisions: a) suspensions relating to the sphere of interests of the worker (illness, accident, pregnancy and puerperium, parental leave, secondment, union leave and permits, etc.); b) suspensions dependent on the company due to specific organizational and production needs (so-called integrable causes). The circumstance that the relationship remains suspended even in the event of non-payment of benefits constitutes a peculiarity of labor law, aimed precisely at the preservation of employment and income, differently from what is generally foreseen in exchange contracts.
Article 1256 of the Civil Code, in fact, provides that the obligation is extinguished when, for a cause not attributable to the debtor, performance becomes impossible. In the event that the impossibility is only temporary, the debtor, as long as it lasts, is not responsible for the delay in performance until, in relation to the title of the obligation or the nature of the object, the debtor can no longer be held obliged to perform the service or the creditor has no interest in obtaining it. It is sufficient to transfer, albeit hypothetically, this general rule on obligations to the employment relationship to realize, in practice, even before in terms of
law, what consequences would derive from the primary need to maintain a condition of work and income.
Inadimplenti non est adimplendum: this is the general principle of contracts with corresponding services; the suspension of the obligation of one of the parties to the legal relationship entails the suspension of the consideration. Different rules are in force in labor law which provide for the continuity of the remuneration obligation as a derogation from the principle of a general nature, as established by the laws and/or by collective bargaining in the cases (according to prevailing doctrine, mandatory) contemplated therein. The services attributable to the definition of "social shock absorbers" belong to the category of suspensions referring to companies and, in general, are guaranteed through social security and/or welfare coverage. Suffice it to say that, according to the common law of contracts, when the company has to reduce or suspend production, the employer could invoke the supervening impossibility (probatio diabolica!) not attributable to him. And therefore to believe (or rather to support the possibility) of being exempt from the salary obligation.
But it is quite clear that the relationship would set out along a path full of pitfalls and with no outlets. Otherwise, who would bear the responsibility for the supervening impossibility? On the economic situation? On market trends (perhaps when other competing companies are able to continue their normal production activity)? On the wrong choices of the company? A dispute without rhyme or reason would open, more theoretical than practical, since the company would still have the option of taking other paths including that of opening a collective dismissal procedure (not subject to review in court with respect to its motivations, as they fall within in safeguarding the principle of free enterprise). And therefore the prosecution of an alleged liability of the employer would lead, in the end, to solutions that are not at all guaranteed for the worker (who in theory would be the creditor of the counter-performance). Here, then, are the purposes to which the institution of the Redundancy Fund (CIG) is aimed: to allow companies to carry out suspensions and reorganizations of economic activity, while safeguarding the employment and income of workers in seen and awaiting a resumption of the activity itself, when the conditions arise again.
