With decision dated August 24, 2021, No. 23329, the Supreme Court ruled that the principle of irreducibility of remuneration, set forth by Article 2103 of the Italian Civil Code, also operates in relation to cases in which the employee receives a salary higher than that provided for by the applicable collective bargaining agreement with respect to the tasks actually carried out and remained unchanged even in the manner of their performance, if the relationship is also governed by a more favorable individual contract. This is also in the case of an employment relationship of a subordinate nature that has been qualified from the beginning as autonomous relationship and has been converted by the judge into an employment relationship of a subordinate nature.
In this regard, it should be noted that, in accordance with the principle of the irreducibility of remuneration, the remuneration agreed upon at the time of hiring cannot be reduced even following an agreement between the employer and the employee (see, among all decisions, Supreme Court’s decision dated July 17, 2019, No. 19258).
In the decision No. 23329, the Supreme Court specified that in the event that the remuneration was settled by the parties in relation to a work relationship, which they considered autonomous, the agreed compensation is intended - by mutual agreement of the same parties - to compensate in full the activity performed.
Nor does the supervening judicial ascertainment of the subordinate nature of that employment relationship point to the contrary. This ascertainment, in fact, although it involves the right of the worker to the corresponding remuneration, broken down into the various salary items provided for by the collective bargaining agreement (or from other sources), cannot, however, subsequently impact on the original intention of the parties to allocate the agreed consideration to fully compensate the work performed.
In other words, in the relationship that has been qualified from its origin as autonomous and has been converted by the judge into subordinate work, the right of the worker to remuneration originates exclusively from the provision of the collective bargaining agreement for the sector in relation to the recognized level, and no longer from the individual contract formally executed by the parties. In this case, only the absorption criterion (“criterio dell’assorbimento”) is taken into consideration, based on the "most favorable overall treatment" between that actually enjoyed and that due, on the basis of contractual minimum amounts.
Therefore, in the hypothesis of conversion of a self-employment contract into a subordinate employment relationship, the judge must verify the compliance with the minimum amounts provided for by the collective agreement with respect to the category due, while the judge cannot subsequently apply principles in force for the different subordination scheme. However, this does not exclude that, in the presence of negotiation between the parties or simply an offer from the employer, the factual treatment paid, if more favorable, is maintained and replaces the contractual one in full (unless proof that the higher remuneration paid was the result of an essential and recognizable error of the other contracting party).
Avv. Guido Brocchieri
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