One of the most discussed issues in Italian Employment Law literature and precedents concerns the application of Art. 36 of the Italian Constitution regarding the quantification of an employee's remuneration. This provision establishes the general right of the employee, regardless of agreement to the contrary by the parties, to "remuneration in proportion to the quantity and quality of this work", remuneration which is usually determined by the judge by taking into account the current relevant national collective bargaining agreements.
Moreover, the provision in question is constantly invoked in our country, not only to establish how much is due in the hypothesis of the simulation of an independent provision of services, when, in reality, an employment relationship exists, but also for the calculation of differences asserted in favour of the employee connected with the carrying out of duties above those for which he was engaged.
Under this aspect, employees' claims for the application of the above-mentioned principle to their contractual basic wage, - and notwithstanding the greater sums actually received by way of a superminimum or on a variable basis (commission, bonuses, prizes, incentives), which the judge should not, therefore, take into account- are not uncommon.
In this regard, it is interesting to note that, after some uncertainty manifested itself in the case law, the opposite principle has recently been asserted that one should compare what would be due as minimum remuneration (basic pay plus cost-of-living bonus) provided for by the collective agreements with what is actually received, leaving aside completely the grounds on which those sums are paid to the employee.
Such orientation, confirmed by the still unpublished judgment of the Court of Turin of 17/09/93, is of unquestionable importance for businesses, bringing about a significant reduction of the claims that can be made by workers alleging to receive remuneration lower than that due to them for the duties actually carried , as the minimum trade union guidelines for such duties will be compared to the totality of the fixed and variable sums in fact received by the same.
In other words, according to the above-mentioned principle, it is only necessary to implement a remunerative adjustement when the total of the sums paid is less than those minima; and even in this case, the adjustment only applies to those differences, the worker not having the right to have counted above the minimum the different sums already received in excess of the basic pay previously due to him.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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