Labour and Employment Comparative Guide

1 Legal framework

1.1 Are there statutory sources of labour and employment law?

The sources of Italian employment law include:

international treaties and European sources; the Constitution, domestic laws and the Italian Civil Code; and customs and practices. Case law is not considered a source of law, since the courts are only supposed to apply existing legislation. However, in practice, case law plays an important role in shaping Italian employment law.

The most important labour laws are:

Law 300/1970 (the so-called 'Workers' Statute'), which sets forth rules protecting the freedom and dignity of employees, and the freedom and dignity of trade unions and their activity within the workplace; Law 604/1966 governing individual dismissals; Law 223/1991 governing collective dismissals; Legislative Decree 66/2003 on working time; Legislative Decree 81/2008 governing health and safety in the workplace; Law 2/2012 governing several employment-related matters, including dismissals and the mandatory procedure for notification of dismissals, as well as several other provisions concerning employment relationships; Legislative Decree 23/2015 which introduced new protections against unlawful dismissals and which applies to all categories of employees - except for 'dirigenti' (the highest category of employee - generally top managers or executives, who qualify as such according to the relevant definitions under national collective bargaining agreements) - who have been hired on a permanent basis as from 7 March 2015; and Legislative Decree 81/2015 governing several contractual models (eg, fixed-term, staff leasing and apprenticeship contracts).

1.2 Is there a contractual system that operates in parallel, or in addition to, the statutory sources?

In addition to statutory sources, individual and collective agreements play a key role in the regulation of employment relationships.

Several (significant) employment-related matters are governed by national collective bargaining agreements and by collective agreements which are executed with works councils at company level.

National collective bargaining agreements are negotiated by employers' association on the one hand and trade unions on the other, in connection with different business sectors (eg, metal-mechanical, trade and tertiary, chemical and pharmaceutical, food). Among other things, such agreements establish the minimum economic and legal standards which are to apply to employees working in the relevant business sector.

There is no obligation that employment relationships be governed by a national collective bargaining agreement, unless:

both the employer and the employee join, respectively, an employers' association and a trade union that have executed a specific national collective bargaining agreement; or both the employer and the employee have agreed that a specific national collective bargaining agreement will apply, either expressly (eg, through a clause in the employment agreement) or implicitly (ie, by applying the main and most significant clauses under a specific national collective bargaining agreement). Bargaining agreements may also be executed at company level by the employer on the one hand and works councils established within its premises on the other. These agreements normally govern various aspects of the employment relationship, providing for conditions more favourable to employees than those under the applicable national collective bargaining agreement.

1.3 Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?

Employment contracts (which are used whenever an employment relationship is executed, regardless of the category in which the relevant employee is classified) are subject to the contractual rules of the Italian Civil Code, which provide that a contract is valid if certain essential requirements are met.

Generally speaking, no mandatory formal requirements apply when executing employment contracts. However, although employment contracts may be executed either orally or in writing, the written form is highly advisable in order to serve as evidence of the existence and terms of the employment contract. If an employment contract has been orally executed, the employer bears the burden of proof regarding its terms and conditions. By contrast, if the contract has been executed in writing, the employee must demonstrate that its actual modalities of performance have deviated from those specified in the written employment contract.

That said, the written form is expressly required by law for the validity of certain contractual patterns or covenants (eg, fixed-term employment contracts with a term exceeding 12 days, non-compete covenants, probationary period clauses, agreements with temporary workers). Other employment agreements (eg, on-call contracts) must be executed in writing by law.

Even if the employment contract has been executed orally, the employer must nonetheless provide the employee with:

an undersigned communication in which the employer states that the hire has been registered in its mandatory books; and within 30 days of commencement of employment, a document stating the main terms and conditions of the employment relationship, including: the names and addresses of the parties; the place of work; the start date; the duration of the contract (ie, whether fixed-term or indefinite); the trial period, if any; the employee's job title (including his or her level and job position) or a brief description of his or her duties; and the applicable national collective bargaining agreement, if any. If no national collective bargaining agreement applies or if the parties agree to deviate from its provisions, this document must also include the employee's wage, annual holiday entitlement and working hours, as well as the notice of termination due by each party.

2 Employment rights and representations

2.1 What, if any, are the rights to parental leave, at either a national or local level?

The current regime for the protection and support of parents is set out in Legislative Decree 151/2001.

A biological working mother is entitled to compulsory leave, which generally lasts from the beginning of the second month preceding the probable date of birth (so-called 'antepartum maternity leave') to the end of the third month following the birth (so-called 'postpartum maternity leave').

Allowing both parents to combine work with childcare, Legislative Decree 151/2001 provides for optional leave, which may be taken by either the mother or the father in the first 12 years of each child's life, extendable for up to three years if the child has a serious disability. Parental leave can be taken by the parents simultaneously or separately and for either a continuous or broken-up period.

Collective labour agreements can include provisions which allow optional leave to be taken on an hourly basis.

A father is entitled to 'compulsory paternity leave' for five days in the first five months of his child's life, for either a continuous or broken-up period. He is also entitled to the period of postpartum leave which the mother would have taken (wholly or partially, depending on the period effectively benefited from by the latter) in case of:

the death or serious disability of the mother; child abandonment by the mother; or the grant of custody of the child to the father on an exclusive basis.

2.2 How long does it last and what benefits are given during this time?

Overall, mothers are entitled to at least five months' maternity leave, while fathers may be absent from work only during the first three months of the child's life.

Parental leave may not exceed a 10-month limit, but the right to parental leave can be exercised by each parent for a continuous or broken-up period not exceeding six months, unless there is only one parent (this limit is increased to 11 months if an employed father exercises his right to stay home from work for a period of no less than three months).

During maternity leave, female employees are entitled to 80% of their pay, which is covered by the Italian Social Security Authority (Istituto nazionale della previdenza sociale (INPS)); although the employer is usually requested to pay this sum upfront, it is subsequently reimbursed. Some collective agreements further provide for the payment of the residual 20% by the employer. Instead, working mothers and fathers are entitled to an allowance paid by the INPS equal to 30% of their regular pay until the child's sixth year of life for a total period of six months.

Economic protection has been partially extended to self-employed female workers, freelancers and agricultural entrepreneurs, para-subordinate and autonomous female workers registered in a special list maintained by the INPS.

National and often regional regulations also provide for maternity allowance and a family welfare cheque for mothers who do not...