The contract with increasing protections, envisaged by the relative legislative decree definitively approved by the Council of Ministers on Friday 20 February, is not a new type of permanent contract for workers, white collar workers and managers, but it is the new system of sanctions for illegitimate dismissals for open-ended contracts stipulated from next 1 March or for fixed-term employment or apprenticeship contracts that are transformed into open-ended contracts, including those stipulated before the entry into force of the delegated decree.
Matteo Renzi declared that with this provision the art. 18: statement certainly true for new hires, but it must be remembered that art. 18, as reformed by the Fornero Law, continues to apply to all workers who today have a permanent employment contract.
This will involve, for a rather long transitional period (at least 10/15 years before the pool of current open-ended contracts runs out, if we assume an average turnover rate in companies, broadly speaking, of 8-10%) a "dual" system of sanctions: real protection with reinstatement for workers hired "before the decree", and, for workers hired "post-decree", compulsory protection with compensation, except for null or discriminatory dismissals and the limited cases of disciplinary dismissals, for which actual protection remains.
If the contract with increasing protections will obviously be the only form of open-ended contract in our system for all those hired from 1 March next, the "dual" system of penalties could lead to critical issues in the field of inter-company professional mobility, with the risk of curbing the labor market of the so-called "experienced", administrative, technical and commercial executives and professionals, but also, for example, workers who are mega-specialists in the management of high-tech plants.
In fact, these workers, after 1 March, would be hired by the new employer with a contract with increasing protections, and therefore there could be a reluctance on their part to abandon the old contract which had a more restrictive protection system than the new one which it only contemplates a compensation system, obviously always in the case of illegitimate dismissal, not only disciplinary but also economic.
Let's make a case: a professional, with 10 years of company seniority, in the event of dismissal for "justified objective reason" (economic dismissal) declared illegitimate by the judge, would today be entitled, depending on the case, either to reinstatement or to an economic indemnity between a minimum of 12 and a maximum of 24 months. The same professional, if he accepted a job offer from another company tomorrow, would be hired with a permanent contract which provides, for example, for the possibility of dismissing him, after only one year, for "justified objective reason". even if the reasons do not apply, with the payment of an indemnity equal to a minimum of 4 months.
It is clear that in these cases, if there is a mutual interest between the company and the worker in perfecting the hiring, the appropriate solutions will have to be identified in the stipulation of the individual employment contract, such as increasing the minimum threshold of the compensation indemnity or acknowledging the previous seniority for the purposes of calculating the indemnity itself or, at the limit, maintain ad personam and seamlessly real protection.
The transitional period, in which effective protection for pre-decree employment contracts and mandatory protection for new contracts will coexist, will also lead to considerable problems in the management of collective redundancies due to staff reductions.
First of all, it should be positively emphasized that the delegated decree remedies, despite the pressure put in place by the CGIL and the left of the opposition and the government, the decision taken by the Fornero Law to continue to provide for reintegration for the violation of the selection criteria in identifying workers to be fired due to staff reduction.
In fact, the choice of workers to be fired with the application of the generic criteria provided for by law 223/91 expressly in competition with each other (family responsibilities, seniority, technical-productive needs) has often proved to be dangerous in the face of judicial scrutiny, which has always interpreted these criteria with extreme rigor, to the detriment of the real company needs, condemning the ousted workers to be reinstated in the now abolished workplace.
The result of this jurisprudence has been the extreme uncertainty in the costs of staff redundancy plans, which is incomprehensible to a foreign investor as those who have working relationships with the managers of multinationals well know, and, conversely, the recourse , as an alternative to "hard" layoffs, to a whole range of support instruments, even in the case of defunct companies, such as early retirement, short and long-term mobility, the multi-year zero-hours layoffs or those in derogation.
The extension, now implemented by the decree, of the monetary sanctions also in the hypothesis of violation of the selection criteria in the procedure of collective redundancies not only appears consistent with the whole structure of the new sanction system, but above all can give certainty of costs to companies, especially those in crisis.
Moreover, given that effective protection continues to be applied to workers hired prior to the entry into force of the legislative decree, even in the case of collective redundancies, while it does not apply to new hires, we will have a system under which, against of the same collective dismissal declared illegitimate for violation of the selection criteria, "pre-decree" workers will be reinstated, while "post-decree" workers will only receive compensation.
All this could lead someone to raise a question of constitutional legitimacy on the basis of different treatment for similar cases, but it must be remembered that the Constitutional Court, in the past, has rejected similar questions, for example in this regard of employees with fewer than 15 employees , stating that it is up to the legislator to decide the scope of application of the rules, provided that this does not happen in an arbitrary and unreasonable way.
Further possible attacks on the Jobs Act, and in particular on the "contract with increasing protections", could come from the appeal to the abrogative referendum, as announced by Maurizio Landini, o from recourse to company bargaining to sterilize the new legislation, as requested today by Fiom della Ducati and Fiom della Lamborghini, pursuant to article 8 of Legislative Decree 13 August 2011 n. 138 (converted into law 14 September 2011 n.148) which gave second-level bargaining the right to derogate from a series of legal precepts, including "the consequences of the termination of the employment relationship”.
In August 2011, in response to the famous letter from the ECB asking Italy to start structural reforms, including the liberalization of the labor market, the so-called "August maneuver" was issued by the Berlusconi government, which in the part intended to support company and territorial bargaining, as tools for increasing the competitiveness of the production system, regulated its derogatory capacity both with respect to legal regulations and national bargaining.
In particular, the second-level bargaining was given the power to derogate from the provisions of the law concerning the control of work activity (art. 4 of the Labor Statute), demotion (art. 13 of the Labor Statute) and dismissal (art. 18 of the Labor Statute).
As is well known, this rule has, up to now, been practically disdained by the trade unions who have seen it as an attempt to undermine their autonomous determination in matters of industrial relations and bargaining, while now, on the contrary, they would think of using it, especially in certain territorial areas where the balance of power is in favor of Fiom, such as the lock pick to "defuse", with derogatory company agreements, the government plan for labor reforms.
A piece of advice to Matteo Renzi: get the regulation in question repealed as quickly as possible, before the collapse of some Emilian company arrives, as already happened about ten years ago with the season of Fiom "pre-contracts" stipulated as an alternative to the CCNL metalworking signed only by Fim-Cisl and Uilm-Uil.
