Transparency Decree and the new labour information obligations

On 29 July 2022, the so-called “Transparency Decree” (Legislative Decree 104/2022) was published in the Official Gazette. The decree implements EU Directive 2019/1152 on Transparent and Predictable Working Conditions and introduces new disclosure obligations at the time of recruitment and during employment.

Scope of decree

This new measure applies to:

  • all employment contracts (ie, fixed-term, indefinite, part-time, full-time, intermittent and supply contracts), including those that are already in place; and
  • coordinated and continuous collaboration relationships and occasional services.

The measure does not apply to:

  • short-term self-employed workers, agents and employment relationships that total or are less than an average of three hours a week over four consecutive weeks; or
  • those with cohabiting family members.

Subject of information obligation

According to the decree, employers must communicate the following information in paper or electronic form to their employees in a clear and transparent manner:

  • the identity of the parties in the employment relationship;
  • their place of work;
  • the address of the employer’s registered office or place of business;
  • the classification, level and qualification assigned to the employee or, alternatively, the nature or a description of the work;
  • the start date of the employment relationship;
  • the type of employment relationship, which specifies the expected length of the contract for fixed-term employment;
  • the details of employment agencies where there are workers who are employed by these;
  • the duration of the probationary period, if any;
  • the right to receive training provided by the employer, if any;
  • the duration of holiday leave and other paid leave;
  • the dismissal procedure, structure and notice terms;
  • the initial amount of remuneration and any additional payments, with an indication of the timescale for these and how they will be paid;
  • the schedule of normal working hours and any conditions relating to overtime and remuneration for this;
  • if the employment relationship does not provide for normal working hours, the employer must inform their employee about:
    • the variability of the work schedule;
    • the minimum amount of guaranteed paid hours;
    • the remuneration for work performed in addition to the guaranteed hours;
    • the reference hours and days on which the worker is required to work;
    • the minimum notice period that the worker is entitled to before their contract begins; and
    • the period within which the employer may cancel the assignment, where this is permitted under the agreed contract, and the amount of notice to be given;
  • the relevant collective agreement, including the company agreement, which indicates which parties have signed it; and
  • the entities and institutions that receive social security and insurance contributions from the employer and any form of social security protection provided by the employer.

The employer must retain this information and make it accessible to the employee in question. The employer must also keep proof of transmission or receipt of this information for five years after the employee has left the company.

Specific cases

Use of automated systems
If an employer uses automated decision-making or monitoring systems aimed at collecting data that is useful for:

  • recruitment;
  • management;
  • dismissals;
  • monitoring; and
  • performance evaluation.

Employers must provide workers and the (company or territorial) trade unions with information on the purposes and aims of the systems, their mode of operation and security levels. Employees have the right to access this same information, either directly or through their respective trade unions.

Violation of these requirements may lead to a fine of:

  • €100 to €750 for each reference month if it relates to information on employee obligations. The fine increases in proportion to the number of workers concerned; or
  • €400 to €1,500 if it concerns trade unions.

Unforeseeable work arrangements
If an employment relationship is organised in a way that is wholly or largely unforeseeable, the employer shall inform the employee in question of:

  • the variability of the work schedule, with an indication of the guaranteed minimum paid hours;
  • the required works days and hours; and
  • the period within which the employer may cancel the assignment and the amount of notice to be given.

Employees may refuse to carry out tasks that are requested to be carried out during times that diverge from the schedule or if the employer breaches the notice period requirement. The employer will not be penalised for this in any way.

If a scheduled assignment is cancelled without reasonable notice, the worker is entitled to the remuneration set out in the collective agreement, if there is one. Failing that, the employee may receive a minimum of 50% of the payment agreed for the cancelled task.

Working abroad
Where an employee is sent on assignment abroad for more than four consecutive weeks, the employer must communicate:

  • what changes have been made to the information that they have already provided;
  • the country of destination;
  • the remuneration and the relevant currency;
  • the conditions for repatriation, if any;
  • the address of the host member state’s website where the information on the posting will be published.

Deadlines for compliance

In the case of recruitment, the obligation to provide information must take place at the time of recruitment before the work begins and within the following seven days. A one-month period may be granted to some information in certain cases.

For existing relationships, the information must be provided within 60 days of the employee’s request.

Any changes to communicating this information must be made known to the employee on the same day that the change takes effect, except in the case of legislative amendments or those resulting from collective bargaining.

Penalties and guarantees

Delaying or partial or total non-compliance with the information obligations will lead to an administrative fine of €250 to €1,500 for each worker concerned.

In addition to this penalty, companies are expressly prohibited from dismissing, discriminating and punishing workers who exercise their rights under the decree. These workers, if victims of retaliatory behaviour, may have recourse not only to judicial protection but also to conciliation and arbitration and may file a complaint with the National Labour Inspectorate.

Workers excluded from the employment relationship or recipients of measures that are equivalent to dismissal may make request to be informed of the reasons that the employer took such measures. The employer must provide this information in writing within seven days of the request.

If the employee lodges a complaint with the competent judicial authority that alleges a breach of the prohibition of dismissal set out in the Transparency Decree, the employer shall bear the burden of proving that the grounds for dismissal or other equivalent measures taken against the employee are not related to the prohibitions set out in the Transparency Decree.

Minimum requirements for working conditions

The Transparency Decree also introduces following minimum requirements concerning working conditions, such as:

  • the maximum duration of the probationary period, which may not exceed six months, without prejudice to the shorter duration provided for the collective agreement. In the case of fixed-term employment relationships, the probationary period must be set in proportion to the duration of the contract and the tasks to be performed. In the event of renewal of an employment contract for the same tasks, the employment relationship may not be subject to a new probationary period. In the event of the occurrence of events such as illness, accident, compulsory maternity or paternity leave, the probationary period shall be extended by the duration of the absence;
  • the employer may not prohibit the worker from carrying out other work outside normal working hours or treat them unfavourably, unless:
    • there is a detriment to health and safety, including the rules on rest periods;
    • there is the need to guarantee the integrity of the service (eg, in public service); or
    • the other work conflicts with the interests of the employer’s business (but not in breach of the duty of loyalty);
  • an employee who has been employed for at least six months with the same employer and who has completed their probationary period may make a written request for a more predictable work schedule, including secure and stable conditions, if possible. An employee who receives a negative response may submit a new request at least six months later. The employer must provide a reasoned written response within one month of the worker’s request. In the event of repeated requests, natural persons in the capacity of the employers or companies that employing up to fifty employees may reply orally if the reasons for the reply remain unchanged from the previous one; and
  • where the employer is obliged by law or by an individual or collective agreement to provide workers with training relevant to their work duties, such training must be provided free of charge to all workers, regarded as working time and, where possible, take place during working time. This obligation does not cover vocational training or training necessary for the worker to obtain, maintain or renew a vocational qualification, unless the employer is obliged to provide it by law or collective bargaining.

Comment

The decree enters into force as of 13 August 2022. The information obligation therefore exists for all employment relationships established as of 13 August 2022 but also applies to all employment relationships established from 1 August 2022 where the employer is obliged to provide the information within 60 days if the employee requests this in writing.

The timeframe for providing the information for workers hired between 2 and 12 August 2022 following such a request is unclear. However, according to Circular Letter No. 4/2022 issued by the National Labour Inspectorate, these workers shall also be included in the information obligations provided by the decree.

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