We are not used to posthumous clarifications from those who boldly try to explain the real “will” of an act or, in this case, the contractual precept of the case.
Let’s be clear: it is certainly not easy to draft a clear and unequivocal text in a country where discussion reigns supreme (and where, banally, we question even the obvious). But certainly contractual provisions that inhibit/prevent actions (in this case we are talking about art. 216 of the recent collective agreement for trade signed on 22 March 2024) it is clear that they are observed with the lantern.
Perhaps this is why Confcommercio, in a note dated 29 March 2024 (note carefully: the day following the signing of a supplementary “authentic interpretation” agreement), intends to deliver an applicative reading of the aforementioned art. 216, just to dispel any doubt.
That doesn’t mean she succeeded.
The Confcommercio note and absorption
To understand the topic in its complexity, it is necessary to report the literal wording of the art. 216 and, subsequently, proceed with its reading following the indications of Confcommercio with note dated 29 March 2024 n. 2893 (which are not a source of authentic interpretation but “further clarifications relating to the hypothesis of an agreement for the renewal of the National Employment Contract for the Tertiary Sector signed by Confcommercio Imprese per l’Italia, Filcams Cgil, Fisascat Cisl and Uiltucs on 22 March last and to the Supplementary Agreement of 28 March 2024”
Literal text of the art. 216 – hypothesis of agreement of 22 March 2024 – modification of 28 March 2024
“In the face of increases in tables, the merit increases granted by companies, as well as increases deriving from increases in seniority, they cannot be absorbed.
Merit increases must be understood as allowances paid with reference to the worker’s aptitude and performance.
Increases paid collectively and unilaterally by the employer during the six months immediately preceding the expiry of this contract cannot be absorbed.
Increases that are not based on merit and do not derive from increases in seniority, paid by companies independently of the collective agreements stipulated within the union, can be absorbed in whole or in part, in the case of an increase in the table, only if the absorption has been provided for by any union agreements or expressly established at the time of the concession as a deposit or advance on future contractual increases paid from 1.1.2022.
”
Note from Confcommercio
“With respect to the absorption criteria provided for in art. 216 of the CCNL, it is established that, for the amounts paid by companies, which are not based on merit and do not derive from increases in seniority, the contractual increases referred to in art. 213 of the CCNL can be absorbed in one of the following two cases: – the increases paid by companies are expected as absorbable from aunion agreement
;
– the increases paid by the companies are by unilateral act provided that they are expressly established at the time of the concession and paid from 1 January 2022 as a down payment or advance on future contractual increases (AFAC). Therefore, according to the new criteria established for unilateral disbursements, to be considered absorbable by contractual increases, the amounts are subject to adual condition
or they must be specifically recognized as a deposit or advance on future contractual increases and, furthermore, they must be paid starting from 1 January 2022″.
Some discrepancies between the article and its “interpretation” appear evident and must be correlated.
First a premise The article in question, entitled “Absorptions”, would like to determine an “organic” discipline of coexistence between possible absorbable superminims recognized to workers (both collectively, third paragraph, and individually, fourth paragraph) and futurecontractual increases
.
The provisions, as is known, categorically exclude the absorption of emoluments linked to merit and performance and then allow the permeability of the tabulated increases in the presence of superminimums and some conditions (which we will see). However, we must ask ourselves what would happen if we were faced with a superminimum agreed between the company and the worker with conditions that are different from both the first case (merit) and the subsequent second ones (for example unilaterality). Reading the article. 216, one must arrive at one forecasting accuracy
(remitted only to disbursements after 01.01.2022 as an advance or AFM). This interpretation appears possible given the word “only” highlighted in the fourth paragraph and, ad abundantiam, from the very nature of the precept which, evidently, wanted to sanction what it prescribes, that is, to determine the absorption of only some institutes. Going into the merits of the topic, it is useful to clarify how the word “unilateral”
has not been mentioned in the text of the art. 216, although cited by the employers’ association.
Indeed, the renewal hypothesis refers to what is established “in the concession deed”, peacefully attracting the absorption forecast, which, as is known, must refer to advances or advances on future contractual increases paid from 1 January 2022. The concept of “unilaterality”
it doesn’t seem clear. Reiterating the absence of the contractual text, according to Confcommercio one of the conditions for absorption would derive from a unilateral forecast (therefore corporate) with disbursements from 1 January 2002 as an advance on future increases and/or advances.
We must ask ourselves, therefore, why the evidence of the unilateral nature of the provision (or recognition) of the superminimum. In fact, could those agreements (therefore not unilateral acts) be considered excluded from the list of items subject to absorption? Not only. Reference is made to conceptOf “delivery ” from 1 January 2022
which, thanks to the Confcommercio note, we understand should be read as “recognition” rather than “payment” (the latter term is much closer to the concept of disbursement). With this, it follows that the so-called “old” superminims cannot be absorbed by the current tabular increases.
Translating, in fact it appears clear that only future advance payments and/or advances paid (or recognised) from 2022 can, according to the CCNL, be absorbable.
Final considerations
But is the above possible? How can acommon law contract generally heteronomous source of the employment relationship, censor what they individual parts
they may have negotiated in unsuspecting times, perhaps precisely to give the worker a “proportionate and sufficient” remuneration pursuant to art. 36 of the Constitution? Furthermore, the collective agreement can always be derogated from individual ameliorating agreements. For what reason onebetter condition , which orders the disbursement of an advance, should it succumb if, for example, it had been ordered in November 2021? What would happen to the economic freedom
ex art. 41 of the Constitutional Charter if the remuneration awarded is peacefully compliant with the art. 36?
Not only. How could the parties to the employment relationship negotiate a salary in addition to the contractual minimum, certainly by way of a deposit or advance payment, which can be said to be absorbable with respect to the next renewal if the collective agreement has this power/function to provide adverse provisions (inserting that despite everything is absorbed only by the “young” or “old” or, why not, “half?” superminimum). If this is the thesis, then we might as well come to an agreementforward superminimum
perhaps to be paid up to the day before the next renewal of the future collective contract, so as to consider it lapsed upon the signature of the social parties and, therefore, emerge unscathed from any logic that allows the absorption of what the contract itself requires (so to deliver strength to what the worker and company have foreseen).
