A specter is haunting Europe, but in the nightmares of Italian port terminal operators, it does not take the form of the judges from the labor section of the Court of Venice who largely upheld a petition from 24 employees of Tiv – Terminal Intermodale Venezia (MSC group).
Referring to Supreme Court jurisprudence based on a series of rulings from the Court of Justice of the European Union beginning in 2006, concerning similar cases in the railway, civil aviation, and public maritime transport sectors, the Venetian workers highlighted that they had always received, for their vacation days, the ‘normal’ pay, meaning without the allowances strictly connected to their role and professional status, primarily, for example, the one linked to the type of shift worked (the pay differences linked to shifts can exceed 50%).
And highlighting how this resulted in their pay on vacation days being significantly lower than their ordinary pay, in violation of a 2003 European directive, according to which, the Supreme Court explained, during vacations “the worker must receive ordinary pay”, in order to “ensure a situation comparable to the worker’s ordinary situation during periods of work, on the grounds that a decrease in pay could be suitable to dissuade the worker from exercising the right to vacation”, they asked for the difference back.
The pay for a vacation day, that is, cannot be significantly lower than ordinary pay through the removal of variable components linked to the work actually performed, because otherwise the worker may be induced to forgo vacation, that is, to forgo an inalienable right.
The supreme Court established that it is up to the national judge to evaluate, case by case, the types of items that constitute ordinary pay, identifying those variable items that are in any case strictly linked to the performance of the duties assigned to the worker and which, therefore, indeed constitute the ordinary pay to be equated with vacation pay. And the judge in Venice not only accepted the workers’ reconstruction (with six items indicated, including indeed the “shift premium”), but also the interpretation that the gap is to be compensated starting from 2007. With the result that the final bill for Tiv, barring appeals (which would be adventurous given the consolidated jurisprudence), will hover around one million euros.
Naturally, the ruling has triggered a domino effect: similar cases, according to what SHIPPING ITALY has learned, would be nearing conclusion in Gioia Tauro and Civitavecchia and the unions, at the request of the workers, would have begun to act as collectors of formal notices to terminal companies for the recognition of the unpaid wages, a prelude, in case of refusal, to legal disputes.
Beyond the quantum – through the confidentiality maintained so far by employer and union parties on the matter, an estimate of 300 million euros in potential payments owed by Italian terminal companies has emerged – the very stability of the Ccnl is at stake.
The regulation of remuneration on holiday days is in fact the subject of Article 11 (which actually lists the items to be calculated, without the allowances now considered by the Venetian judges to be an intrinsic part of the job), which, if this jurisprudential orientation is, as is likely, confirmed, will at this point be null (as will the articles of the supplementary agreements that refer to it).
Except that another article of the CCNL, Article 72, establishes “the inseparability of the contractual provisions”: the employer’s side, that is, could object that if Article 11 falls, the entire contract falls: a scenario clearly capable of shaking the national port sector to its foundations.
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