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The specification of working hours in part-time, and specifically shift contracts, is an often underestimated, albeit of primary importance, issue. Careless wording of the contractual clause can, in fact, lead not only to redetermination of hours, but also to compensatory consequences for the employer. Let us try to take stock of the situation.
The relevant regulations and guidance from case law
Thus, external sources can be called up as long as they are sufficiently specific.
How should such specificity be understood? Useful guidance in this regard comes from a recent ruling by the Court of Milan, rendered last October 12.
In the case under consideration, the employment contract (a vertical part time) provided:
- The total number of annual working hours;
- The daily number of working hours;
- A set number of shifts;
- The number of months in which the shifts would be placed.
It was stipulated that the exact breakdown of shifts would be announced for each year by the end of the previous year.
According to the court, such a contract did not contain all the elements prescribed by law, since the indication of the hourly schedule must be specific, including with reference to the day and the week, in order to allow the employee a better organization of working time and free time. In fact, it is emphasized in case law that the part-time contract is based on a mutual consent about the placement of work in a specific schedule. In the case examined, there was a lack of any concrete identification of a shift pattern, intended to be repeated the same over time, which would put the worker in a position to properly self-determine.
Similar principles are inferred from the judgment of Trib. Busto Arsizio, Feb. 12, 2018 No. 58. In the dispute, the action of the employer who had made the workers sign a shift schedule, which was always kept unchanged thereafter, in which the articulation of working hours was predetermined, was found to be correct. In the judge's opinion, it appeared, however, that the need for individual workers to organize their time to perform other activities was safeguarded, since the shifts were fixed and every fortnight the relevant shift was communicated.
Thus, once it is specified in the employment contract that the work is shift work, referral to scheduled shifts divided into predetermined time slots, brought to the attention of the workers, is sufficient, as long as the same remain unchanged at all times.
What consequences if the clause is incorrectly drafted?
- Judicial determination of the time placement of the benefit;
- The employee's right to damages for any abusive behavior of the employer;
- The worker's right to compensation for extra work in the case of actual performance beyond the agreed hours.
The time placement of the schedule is determined, ope iudicis, taking into account the family responsibilities of the worker concerned and his or her need for income supplementation through the performance of other work, as well as the needs of the employer.
Damages, on the other hand, are liquidated according to an equitable assessment by the judge, who will take as a parameter the normal monthly salary. It is believed, however, that such compensation is actually punitive in nature, and therefore disregards proof of the damage procured, arising from the objective inconvenience suffered by the employee due to the employer's unilateral determination of the time arrangements for performance.