The novelty of law 56 of 2024: the CCNL in works and service contracts
As we anticipated, the law 56 of 2024 introduced an important innovation for all works and service contracts. In particular, it has been established that for all contracts for works and services* the employer must guarantee to its staff The economic and regulatory treatment “overall” provided by the CCNL more representative and closely connected to the object of the contract.
The provision in question applies also to all subcontractors.
The standard provides no guidance on how this CCNL must be identified. The operation in question (which, in the event of an error, we reiterate, involves significant risks) it's not easy, but it is possible to use the indications provided by the ANAC regarding public contracts. In fact, the obligation to apply the most representative and adherent CCNL to personnel employed in procurement had already been introduced previously in the context of public contracts with theart. 11 of Legislative Decree 36/2023.
The rule in question had given (and continues to give) some operational difficulties for all subjects in the sector, with consequent intervention by the ANAC which provided indications on how to identify the CCNL to apply. These indications can also be used to understand if thepossible different CCNL that we apply can guarantee “overall“the same protections as that applicable according to theart. 29using the comparison criteria between the CCNL indicated by the ANAC.
| CCNL in private procurement | CCNL in public procurement |
| Art. 29 Legislative Decree 276/2003* | Art. 11 Legislative Decree 36/2023 |
| 1-bis. Personnel employed in the procurement of works or services and in subcontracting are entitled to economic and regulatory treatment no less than that provided for in the national and territorial collective agreement stipulated by the workers' and employers' trade union associations which are comparatively more representative on a national level, applied in the sector and for the area strictly connected with the activity covered by the contract and subcontract. | 1. To personnel employed in works and services and supplies subject of public tenders and concessions, the national and territorial collective agreement in force for the sector and for the area in which the work is carried out is applied, stipulated by the comparatively most representative employers' associations on a national level and the one whose scope of application is strictly connected with the activity covered by the contract or concession carried out by the company, even predominantly. … 3. Economic operators may indicate in their offer the different collective agreement they apply, as long as it guarantees employees the same protections as that indicated by the contracting authority or the granting body. … 5. Contracting authorities and granting bodies ensure, in all cases, that the same regulatory and economic protections are guaranteed to subcontracted workers. |
The identification of the CCNL applicable to the contract. The risks deriving from the error
Identifying the CCNL applicable to the contract, both public and private, is essential for evaluate compliance of its activity to the regulation of the law. Any incorrect identification would result in risk of a calculation error of the costs relating to the personnel applied to the order (thus eroding the calculated profit or even generating losses) and the exposure to risk of litigation with its employees, a dispute which in the case of participation in public tenders could also expose one to subsequent exclusion from the procedure*.
It should also be noted that the CCNL provide for specific obligations relating to staff training also with reference to safety. The application of an incorrect CCNL therefore also entails the application of a inadequate staff training and trainingan element which can also lead to the reduction of credits from the construction site licence*fundamental for the work activity of companies from 1 October 2024.
The identification of the CCNL applicable to the contract. The criteria and an example
To identify the CCNL applicable to the contract, a preliminary step is necessary locate the ATECO code applicable to the activity we are carrying out*.
The ATECO code can be identified using the ISTAT website, which offers a keyword search method link.
A useful indicator is the ATECO code resulting from the search. This can constitute a reference in case of doubt, although from time to time it will be necessary to verify that the subject of the contract complies with the code indicated on the certificate. The ATECO code is identified in the “activity” of the vision. Let us remember, however, that this code is partial: it will therefore be necessary to subsequently identify the applicable detail.
Once we have identified the ATECO Code, we can identify all applicable national collective labor agreements to that activity. This can be done by downloading the file Excel made available by CNEL which on the sheet “A6” indicates the connection between CCNL and ATECO.
Let's set theexample of a company that carries out the activity of engineering studies, identified with ATECO code 71.12.10. The A6 sheet tells us well 26 existing CCNL for the sector.
How can we understand what the reference CCNL is? We need to understand which of these is the most representative CCNL. The same sheet Excel allows us to identify it, because it indicates the number of companies and the number of employees to which the CCNL applied in 2023 or in the last available year.
In this case, we see that the CCNL for employees of studios and professional activities it is the one that has both the largest number of companies and the largest number of employees. This is, therefore, the most representative CCNL to apply.
The equivalence of the CCNL
L'art. 29 of the Legislative Decree 276 of 2023as we have seen, does not ask for the application of the most representative and most compliant CCNL: asks about guarantee employees economic treatment and regulatory”overall” not less to what it envisages. “Overall” therefore indicates that the norm it should not be applied with extreme rigor: there may be variations with respect to the CCNL that we apply to our employees, but these variations cannot be excessive. The forecast is unclear. Even in this case we can though refer to the instructions provided by ANAC in the context of public contracts, because – as we have seen – also theart. 11 of the Public Contracts Code allows the possibility of applying a different CCNL provided that this guarantees an adequate level of protection compared to the most representative and most compliant one.
According to the Authority, in particular, the protections offered by the two different CCNL can be said to be identical equivalent (“overall” equivalent, if you want to adapt the terminology) if the less representative or less compliant CCNL applied by the company presents marginal worsening differences for no more than 2 elements out of 17 considered overall.
What are these 13 elements to consider? We report them in the following table, distinguishing them between economic elements and regulatory elements.
| Nature of the parameter | Reference parameter |
| Economic | Annual salary |
| Economic | Contingency allowance |
| Economic | Distinct element of remuneration – EDR |
| Economic | Additional monthly payments |
| Economic | Other allowances |
| Regulatory | Additional and part-time work |
| Regulatory | Discipline of overtime work |
| Regulatory | Compensatory discipline for suppressed holidays |
| Regulatory | Duration of the trial period |
| Regulatory | Duration of the notice period |
| Regulatory | Duration of the compensation period in case of illness and accident |
| Regulatory | Illness and injury |
| Regulatory | Maternity |
| Regulatory | Total hours of paid leave |
| Regulatory | Bilaterality |
| Regulatory | Supplementary pension |
| Regulatory | Integrative healthcare |
To carry out this comparison we can download the text of the CCNL that we apply in the company and the most representative one that we have identified with the criteria indicated above. The texts can always be downloaded from the CNEL website using the search mask offered by the site and entering the name of the CCNL we are looking for.
Once we have downloaded the CCNL we can start the comparative verification which – we warn right away – may not be easy, so it is always useful to use consultants to carry out the same to avoid making mistakes. If our CCNL is pejorative and therefore does not guarantee the overall treatment expected from the more representative and more compliant one, we can adopt two strategies.
There Before is to stipulate an agreement and apply the protections provided by the major CCNL to the employees employed in the contract, even if only for the period of time in which these will be applied.
There secondand more risky, is to ignore the problem by continuing to apply the CCNL which has always been applied without corrective measures, however incurring the serious risks that we indicated previously in part II.
The risks for the client
In conclusion, it is worth highlighting that i risks deriving from the incorrect identification of the CCNL applicable do not only burden the employer, but also the client. L'art. 29 of the legislative decree. in fact it specifies that the client (who is an entrepreneur) responds jointly and severally with the contractor and the subcontractor regarding remuneration and severance pay. This means that the employee who believes that a wrong CCNL has been applied, which provides for minimum wage levels lower than the most representative and most adequate one, could act for the difference towards the client.
It is therefore necessary keep watch, from this aspect, on the correct identification and application of the CCNL by the contractor and the entire chain of subcontractors employed. Omitting these checks may expose you to significant financial risksespecially if the company, for example, goes bankrupt without having paid wages during the contract.
