Work on call in construction: is it possible?

Intermittent work types

We can distinguish between the intermittent work:

• With the obligation of availability, in which the worker is required to respond to the company call and, in the face of this discomfort, receives a specific economic allowance;
• Without obligation to availability, where the employee is not required to respond to the company’s call.

If on the one hand the on -calling work brings with it a great flexibility for the company (required to pay the employee for only periods of effective work) on the other hand the contract can be stipulated in a taxation series of cases (objective or subjective hypotheses) and involves a series of additional obligations for employers, unlike other subordinate employment relationships.

Objective hypotheses

The appeal to the on -call contract is admitted for the performance of discontinuous or intermittent services, according to the needs identified by collective agreements:

• National, territorial or corporate, stipulated by union associations comparatively more representative on the national level;
• Company, stipulated by RSA / RSU;

Also with reference to the possibility of carrying out performance for predetermined periods over the week, month or year. In the absence of contractual provisions, the cases of use of the Job on call are identified by decree of the Minister of Labor and Social Policies. On this point the Ministerial Decree of 23 October 2004 states that it is “The stipulation of intermittent employment contracts is allowed with reference to the types of activities indicated in the table attached to the Royal Decree 6 December 1923, n. 2657“.

Although of our interest, the Ministry of Labor and Social Policies, with response to Interpello of 13 July 2017, number 1, confirmed the admissibility of the contract on call, in the construction sector, for laborers, bricklayers, asphalists, drivers and drivers of operating machines in the context of contracts for ordinary / extraordinary road maintenance works, in light of activity number 32 “Road maintenance staff“Indicated in the table attached to the Royal Decree number 2657/1923.

Subjective hypotheses

Regardless of the type of activity carried out (article 13, paragraph 2) it is possible to resort to work on call with age employees:

• Over 55 years, to be understood as 55 years of age (even if it is retirees);
• Less than 24 years (at most 23 years and 364 days), it being understood that the services must be carried out within 25 years.

The EU Court of Justice (sentence 19 July 2017, number C-143/16) considers legitimate the dismissal of a worker, hired with a call contract, upon reaching 25 years of age.

Prohibitions

It is not possible to resort to intermittent work:

• For the replacement of workers who exercise the right of strike;
• At the production units in which, within the previous six months, collective layoffs or at the production units in which a suspension of the work or a reduction of the timetable under the layoffs for earnings is operated (the prohibition works for workers used for the same tasks carried out by the employees dismissed or suspended or with reduced hours);
• By companies that have not carried out the risk assessment, according to the legislation on safety at work.

Total period

Without prejudice to the conditions of legitimate appeal to on -call work, the contract in question is admitted, for each employee with the same company, for a period overall not exceeding the 400 days of actual work over three solar years.

In case of exceeding the aforementioned period, the report turns into a full and indeterminate contract.

Communication of the beginning of the work performance

In addition to the typical obligations of employees, such as the signing of the contract and the electronic sending of the communication of hiring with the model “Unified-rav“Or“Unilav“, The employer is also required to report, every time, to the territorial inspectorate of work (ITL) competent the start of the on -call work performance.

The fulfillment is in fact imposed by article 15, paragraph 3, legislative decree number 81/2015, before the start of the work performance or an integrated cycle of services of duration not exceeding 30 days. The employer is therefore obliged to report to ITL:

• The identification data of the employee;
• The identified data of the employer;
• The start and end date of the work performance to which the call refers.

The communication (which can also be made on the same day of the start of the service as long as before the actual use of the worker) is made by model “UNI-intermittent”To be transmitted by connecting to the platform services.lavoro.gov.itselecting the item “Intermittent work“, Once the SPID credentials, Cie or CNS is inserted.

As an alternative to electronic sending, the employer can transmit the model “UNI-intermittent“:

• With an e -mail message to the PEC address [email protected];
• With a SMS at 339 9942256 containing the tax code of the worker (exclusively for services to be made no later than 12 hours from communication);
• Via the app Intermittent work For smartphones and tablets.

Penalties

The company that fails to transmit the communication of the start of the performance on call to incur an administrative sanction from 500.00 to 2,500.00 euros, in relation to each worker for which communication was omitted.