PUBLISHED BY Arlati Ghislandi
TAG: ,
Mandatory nature of the joint liability regulation for contractors (and subcontractors)
17
Sep
2018

The regulations of the collective labour agreement that derogate from the regime of joint liability for contractors (and subcontractors) can only be applied with regard to credits accrued by employees up to 16 March 2017. From 17 March 2017, the principle of joint liability is in any case mandatory.

 

With its ruling no. 16764 of 13 September 2018, the Ministry of Labour and Social Policies clarified the applicability of the joint liability regulation pursuant to article 29, paragraph 2 of Leg. Decree no. 276 of 10 September 2003, specifying that it becomes mandatory from 17 March 2017.

 

Before the entry into force of the most recent amendments made by article 2 of Leg. Decree no. 25 of 17 March 2017 to the aforementioned provision, the law recognised the possibility for collective bargaining to derogate from the principle of joint liability if the contractual rules identified methods and procedures to control and verify the regularity of contracts and subcontracts.

 

The current wording of the aforementioned article 29, paragraph 2, first sentence of Leg. Decree no. 276 of 10 September 2003 (in force since 17 March 2017) establishes that ‘in the case of a procurement or service contract, the principal or employer is jointly and severally liable with the contractor, as well as with each of the possible subcontractors within the limit of two years from the termination of the contract, to pay workers the salary, including severance indemnity, social security contributions and insurance premiums due in relation to the period of execution of the contract, excluding any obligation for civil sanctions for which only the person responsible for the breach is liable.

 

As anticipated, the joint and several responsibility of the contractor can therefore no longer be derogated.

 

Therefore, without prejudice to the fact that, as from 17 March 2017, derogations in this matter can no longer be introduced in the collective labour agreement, it should also be specified that:

-       where the collective labour agreement in force on 17 March 2017 provides for rules derogating from joint liability, these may not, however, apply to contracts (and subcontracts) concluded after 16 March 2017;

-       the contractual clause that excludes the application of the joint liability regulation is applied only to credits accrued by the worker up to 16 March 2017, since it is ineffective for credits accrued after this date.