Historic Ruling: Part-time Work Without Fixed Hours Could Be Unconstitutional

Italian Legislation

leggi la versione italiana sull'area prolabor de "Il fatto quotidiano"

A part-time worker must have predetermined working hours. This was highlighted by the recent ruling of the Italian Supreme Court, case number 11333 of 2024, which raises the issue of the constitutionality of the provision under the Jobs Act if not properly applied.

At the time of hiring, therefore, the worker must not only be aware of their shifts but also how these are distributed over time during the working period. It is against the provisions of the law, the ruling argues, for the employer to communicate working hours only ex post, on a monthly or annual basis.

Part-time work was introduced by the then commerce contract (now Tertiary, Distribution, and Services) in 1983, with the aim of increasing female employment, facilitating the reconciliation of work and life, and meeting companies’ flexibility needs. Subsequently, the legislature also adopted this type of employment relationship, regulating it with Legislative Decree 863/1984, which was amended by a series of subsequent legislative measures and finally by Legislative Decree 81/2015 (Jobs Act). Article 5 of the latter states: “... in the part-time employment contract, a precise indication of the duration of the work performance and the temporal placement of the working hours with reference to the day, week, month, and year is contained. When the organization of work is structured in shifts, the indication referred to in the previous paragraph may also be made by reference to scheduled work shifts divided into predetermined time slots.”

What often happens, especially in those sectors where the employment relationship needs to be organized in shifts, is that the employer communicates the duration of the work performance not at the time of the contract’s conclusion but during the employment relationship. It can happen, as often occurs particularly in some large organized distribution companies or in tourism and tertiary sectors, that working hours are communicated to workers not at the beginning of the year or semi-annually, as contested by the ruling under discussion, but even just a few days before the shift is to be worked.

Thus, the part-time worker knows that there are some predetermined time slots for work, even contractually, but becomes aware of their specific working hours only when their direct supervisor assigns the shifts. These practices could be contrary to constitutional provisions; this is recalled in the ruling in question, which, addressing a similar case, cites the Italian Constitutional Court ruling number 210 of 1992: these practices are in conflict with Article 36 of the Italian Constitution because they do not allow the worker to seek, when necessary, another employment relationship and aim for a decent wage and, at the same time, afford an adequate pension, as established by Article 38 of the Italian Constitution.

It should be noted that the legislature, in regulating the part-time employment relationship, has also gradually introduced the concept of elastic and flexible clauses (eventually limited to flexible clauses only), that is, the possibility given to companies, for a modest compensation, to change the placement of working hours with short notice. This institution, originally intended to address extraordinary and limited-time needs, although terminable in some cases provided by law, has gradually been used as a tool to ensure the full availability of personnel to meet the structural needs of work organization in companies.

Having the opportunity to hire a part-time worker and have them sign flexible clauses, with the possibility of varying both the amount and the placement of working hours throughout the employment relationship, and a full-time worker whose working hours are subject to the employer's jus variandi but generally not compressible, what is easier for a company to do?

This distortion of the regulations contributes, in the opinion of the writer, to the generation of a significant portion of low-paid jobs and involuntary part-time work, or a “totalizing” part-time job: people completely at the disposal of company needs who will try as much as possible to perform additional work to earn a decent wage.

Our legal system already has some countermeasures against these practices of “distorting” the regulations. For example, Legislative Decree 104/2022 (also known as the transparency decree) and the related interpretative circulars from the Ministry of Labor and INAIL reinforce the concept of prior knowledge of working hours.

It is essential that social partners and the legislature collaborate to redefine existing regulations, allowing for a work organization that is advantageous for both parties. Companies must be able to adapt to market changes without sacrificing fundamental workers' rights. Only through constructive dialogue and active collaboration can we ensure a fair and sustainable work future, where companies' flexibility needs are reconciled with the respect for workers' rights.