Clarifications from the Ministry of Labor on the labor law provisions of the third sector code and on the status of a volunteer

Clarifications from the Ministry of Labor on the labor law provisions of the third sector code and on the status of a volunteer

art. 8, paragraph 3, lett. b): In any case, the following are considered indirect distribution of profits: "the payment to subordinate or self-employed workers of salaries or fees that are forty percent higher than those envisaged, for the same qualifications, by the collective agreements referred to in article 51 of the legislative decree 15 June 2015, n. 81, except for proven needs relating to the need to acquire specific skills for the purpose of carrying out the activities of general interest referred to in article 5, paragraph 1, letters b), g) or h)"

art. 16: "Workers of third sector entities have the right to an economic and regulatory treatment not lower than that provided for by the collective agreements referred to in article 51 of the legislative decree of 15 June 2015, n. 81. In any case, in each third sector entity, the pay difference between employees cannot be greater than the ratio one to eight, to be calculated on the basis of the gross annual salary"

art. 17, paragraph 5: "The quality of volunteer is incompatible with any form of subordinate or self-employment relationship and with any other paid employment relationship with the institution of which the volunteer is a member or associate or through which he carries out his activity voluntary".

Below is a reasoned summary of the ministerial clarifications regarding the reporting of the rules.

TEMPORAL OPERATION AND OBJECTIVE SCOPE OF APPLICATION

Since the provisions referred to in articles 8 and 16 of the Code are not linked by a direct link to the establishment and operation of the RUNTS or to the adoption of secondary standardization acts, they must be considered immediately applicable, starting from the date of entry into force of the Code (August 3, 2017). Having said that, it must be specified that, in compliance with the general principle of non-retroactivity of the law, article 8, paragraph 3, letter b) must only apply to employment relationships established starting from the entry into force of the Code, with the exclusion therefore of its application to relationships already existing prior to the same date. A similar argument must be made in relation to article 16, which will therefore apply to new employment relationships: for the purposes of compliance with the proportional relationship indicated in the provision, the economic treatment of the new employment relationship will be commensurate with the lower wage already in be in the ETS, in line with the ratio legis of containing the gap with the salaries applied to the holders of positions of responsibility within the entity within a defined limit”.

With regard to the transitional period, article 8, paragraph 3, letter b) will apply to the SBs and APSs registered in the respective registers, for which an ad hoc regulation has not yet been envisaged with regard to the presumptions regarding the indirect distribution of profits, while for the ONLUS the discipline contained in article 10, paragraph 6, letter e) of the legislative decree n.460/1997 will continue to apply. Also in the transitional period, the case of art. 16 paragraph 1 will not apply to ONLUS, for which the need to respect the aforementioned ratio of one to eight will become effective starting from the moment of registration in the RUNTS.

With reference to the objective scope of application of article 8, paragraph 3, letter b), we report the text of the Note: "the reference made by the legislator to some specific types of activities of general interest necessarily leads to the exclusion, given the exceptional extent of the provision, having a derogatory nature with respect to the general rule set out in the article in question, the possibility of applying the same provision by analogy also to other types of activities of general interest contemplated in article 5 of the code. Having made this preliminary clarification, it must be added that the legislator considers that the ceiling of 40% of the salary level can be derogated from in the presence of the need to acquire specific professional skills for the purpose of carrying out the activities of general interest contemplated by the law, supported by suitable supporting documentation. For the purposes of derogation from the constraint, therefore, it is necessary that the conditions envisaged by the legislator are linked to each other by a logical and coherent aetiological link, which occurs in all those cases in which only the exceeding of the salary cap makes it possible for ETS to acquire a professionalism to be considered objectively necessary for the purpose of implementing the specific activities of general interest permitted by the law, without which it would not be possible to carry out the same activities. It seems useful to specify how the code requires the existence of a link between the professional skills to be acquired and the exercise of the general interest activity, to be read in terms of the functionalisation of the specific professional skills for the development of the corporate purpose. It therefore follows that, on the one hand, the application of the derogation postulates the necessary condition that at least one of the activities referred to in letters b), g) or h) of article 5, paragraph 1 of the code are contemplated in the statutory object social responsibility of the ETS, as an activity of general interest of the ETS itself (also possibly in competition with other activities pursuant to article 5 of the code); on the other hand, that exceeding the ceiling will be legitimate when the professional skills to be contracted are necessarily functional to the exercise of these activities, both directly through the services to be performed in the specific sector of activity referred to above, and indirectly through services equally characterized by the high profile of professionalism which are in any case necessary, in the presence of the particular complexity of the organization's organizational model, for the purposes of effective coordination of the activities themselves, and without which, therefore, there would be a detriment to the activities of general interest referred to above. This relationship of necessary causality must be evidenced by adequate documentation, starting from the worker's curriculum vitae and the relative resolution passed by the competent corporate body, which must contain an exhaustive and logical development of the motivational path at the basis of the establishment of the employment relationship, which must be particularly stringent in the representation of the teleological nexus described above, especially in the hypothesis of indirect functionalization”.

From a procedural point of view, for the ONLUS, since the provision referred to as an anti-avoidance rule of a substantial type, the disapplication of the same must be requested pursuant to article 11, paragraph 2 of Law no. 212/2000. The situation is different for the ODV and the APS, for which the civil nature of the provision excludes the possibility of applying the request for disapplication to the same. It follows that for them the establishment of employment relationships involving the overrun of the 40% ceiling constitutes the outcome of a decision-making process within the ETS, undertaken in compliance with the legislative and statutory provisions, without the need for any prior authorization from the of the Public Administration The legitimacy of the organizational choices adopted by the ETS will be subject to verification during the checks pursuant to articles 93 and 94 of the code, which may entail, if the conditions pursuant to article 8, paragraph 3 are not met, letter b), the application of the pecuniary administrative sanction referred to in article 91, paragraph 1, against the directors who have violated the prohibition on the distribution of profits or have contributed to their violation.

THE CALL FOR COLLECTIVE BARGAINING

Further questions concerned the salary values to be taken into consideration for the purposes of compliance with the percentage ratio referred to in the articles in question: "Firstly, the collective bargaining referred to in Articles 8, paragraph 3 and 16, paragraph 1 of the code constitutes the reference benchmark for the purposes of the correct application of the provisions referred to therein, also with reference to self-employment, including coordinated and continuous collaborations. On the other hand, since the rules in question refer to the collective agreements referred to in article 51 of Legislative Decree no. 81/2015, the wage values to be taken into consideration will be those deriving from the different levels of collective bargaining (national , territorial or corporate). In particular, given the generic reference of article 8 paragraph 3 to the concept of remuneration, it is believed that the variable part of the remuneration should also be taken as a reference for this purpose, provided that it is provided for in the collective agreements ".

THE INCOMPATIBILITY BETWEEN THE STATUS OF VOLUNTEER AND WORKER OF THE SAME ORGANIZATION

Lastly, the Ministry declares that the interpretation of art. 17, paragraph 5 according to which the incompatibility between the status of volunteer and that of worker of the same organization would be limited only to non-occasional volunteers.