Abolition Of Detention And Review Delladisciplina Unilateral Resolution Of Employment-Interpretation And Application Of Article 1 Of Decree-Law June 24, 2014, # 90, Converted, With Amendments, By L. ..

Original Language Title: Soppressione del trattenimento in servizio e modifica delladisciplina della risoluzione unilaterale del rapporto di lavoro -Interpretazione e applicazione dell'articolo 1 del decreto-legge 24giugno 2014, n. 90, convertito, con modificazioni, dalla l...

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Public authorities under art. 1, paragraph 2, of Legislative Decree No. 165 of 2001 independent authorities their seats 1. Purposes of the discipline. The art. 1 of Decree-Law June 24, 2014, # 90, converted, with amendments, by law No 114, August 11, 2014 repealed art. Legislative Decree 16 December 30, 1992, # 503, which contained the general discipline of the Institute of detention of employees of public administrations, and has redrafted the subparagraph 11 article. 72 of Decree-Law June 25, 2008, # 112, convertito con modificazioni dalla legge August 6, 2008, # 133, unilateral resolution of employment by public administrations. The Institute of detention and was consequently suppressed, while the scope of the unilateral resolution was redefined. The legislation is aimed at promoting the spare and rejuvenation of staff in public administrations. With the entry into force of recent changes in the system provides for the termination of employment: obligatory, for those who have completed the requirements for entitlement to retirement pension or early retirement, having reached the age limit judicial system; left to the determination of the Administration to those who have gained the right to early retirement according to the requirements of art. 24, paragraphs 10 and 12 of the Decree-Law December 6, 2011, # 201, convertito con modificazioni dalla legge December 22, 2011, # 214, updated with adapting to life expectancy, and without penalization of treatment, taking into account the provisions of art. 6, paragraph 2-c, second sentence, of Decree-Law No 216, December 29, 2011 converted with amendments, by law No 14 February 24, 2012, as amended by art. 1, paragraph 113 of the Act December 23, 2014, # 190. This circular is issued in agreement with the Minister of labour and social policy. 2. The abolition of detention. 2.1. The legislative limit for the service. It should be mentioned that the legislative limit for the service it is generally fixed by art. 4 of Decree of the President of the Republic December 29, 1973, n. 1092, for employees of the State, and by art. 12 March 20, 1975, law No. 70, for employees of public bodies; This limit is applicable mutatis mutandis also to other categories of civil servants in the absence of any other provision. As stated by art. 2, paragraph 5, of Decree-Law no August 31, 2013. 101, convertito con modificazioni dalla legge October 30, 2013, n. 125, which supplied the authentic interpretation of art. 24, paragraph 4, second sentence, of Decree-Law No 201 of 2011, in the cases referred to in that article. 24, paragraph 4, this limit is not changed by the elevation of the requirements laid down for the old-age pension by art. 24, paragraph 6, of the aforementioned Decree-Law No. 201 of 2011. Remain subject to various limits already established by special rules for particular categories of employees (for example, the fulfillment of the seventieth year of age for magistrates, lawyers and attorneys of the State and for university professors, based respectively in art. 5 May 31, 1946, the Royal Legislative Decree No. 511, art. 34 of Royal Decree October 30, 1933 , # 1611 and in art. 9 of the Decree of the President of the Republic July 11, 1980, n. 382). see, in that regard, the Department of civil service circular No 2 of 2012. 2.2. transitional discipline. Paragraph 2 of article. 1 of Decree Law No 90 of 2014 asked except entertainment in service in place until the date of October 31, 2014 or before if included in the measure: being already after that, the entertainment cannot continue. To this end, we consider the entertainment already prepared and effective. The trattenimenti already agreed but not yet effective in June 25, 2014 (date of entry into force of Decree-Law) are revoked ex lege. The following paragraphs 3 and 3 bis of article. 1 contain a special framework, which aims to safeguard the function of judicial offices and educational continuity. According to this discipline, the deadline for the effectiveness of entertainment in service, although still not willing, for magistrates, administrative, accounting and military's December 31, 2015, date beyond which those who are consuming must be placed at rest. For those categories of staff, therefore, it is still possible to have the detention, that he can have such life to overcome the aforementioned data. The provision of paragraph 3-bis, relating to the school staff, has exhausted its effects on August 31, 2014. No employee of the Fund can be school so still in service by virtue of detention eventually operated. 2.3. The continuation of the relationship.

2.3.1. The failure to achieve the minimum contribution. In some case, the Administration is obliged to continue the employment relationship with the employee and that continued detention is not forbidden by law. This occurs primarily when the employee does not accrue any right to a pension upon completion of age limit age requirement for legislative or old-age pension. In such cases, as clarified by the case-law constitutional (Constitutional Court, court # 33 of 2013 and # 282 of 1991), the Administration should continue the employment relationship with the employee over the limit to allow him to gain the minimum requirements for access to the Board not later than the achievement of 70 years of age (extent to which you are applying the adjustment to life expectancy). To assess the existence of minimum contributory requirement for the right to a pension and, therefore, the possibility of termination of employment, shall be deemed the working relationship with the Administration and any previous employment relationships, that match contributions made at the various pension management. In fact, if the total of 20 years, provided for by art. 24, paragraph 7, of the aforementioned Decree-Law No. 201 of 2011, it is achieved through the addition of seniority contributory benefits related to different pension management, the employee can access the free Institute of aggregation, referred to in Legislative Decree February 2, 2006, # 42, or the accumulation of contributions, under art. 1, paragraph 238-248 of the Act December 24, 2012, n. 228, which will enable you to achieve the minimum contributory requirement. It should be noted that, for the purposes of retirement through the Institute of aggregation, account must be taken of the existing system of maturities (art. 5, paragraph 3, of the aforementioned legislative decree n. 42 of 2006) and therefore, according to the general principle, the employment relationship must continue until the maturation of the effect to prevent breaks between compensation and pension. For those who have the first accreditation contributory with effect from 1 January 1996, however, the placement will be arranged only if the amount of the pension is less than the threshold of 1.5 times the social allowance annually reappraised (according to art. 24, paragraph 7, of the aforementioned Decree-Law No. 201 of 2011). If, on the other hand, even considering all contributory periods, the employee does not reach the minimum contributory seniority within reach the age demographics for the retirement pension provided for by art. 24, paragraph 6, of that Decree-Law No. 201 of 2011, the Administration must consider whether the continuation of employment until the age of 70 years of age (in addition to the adjustment to life expectancy) would allow the awarding of contribution requirement. If so, the Administration will have to continue the employment relationship in order to achieve the minimum contributory seniority. Otherwise, the Administration is going to have to fix unilaterally the working relationship. The administrations plan to time verified with the social security administration, to survey and evaluate the situation overall employee contribution and consequent measures.

2.3.2. The special regime of medical directors and health role. For medical directors and the role of health of the NHS continues to apply the special arrangements provided for by art. 15-h Legislative Decree December 30, 1992, # 502, amended by art. 22 November 4, 2010, law no 183. Paragraph 1 of that article identifies the maximum age for retirement of these subjects, including the leaders of complex structure, subject to the completion of the 65th year of age, or, at the request of the interested party, to the mature of the fortieth year of actual service, in each case with a maximum limit of permanence of the seventieth year of age. Therefore continues to apply to all medical directors and health role (managers of nursing, rehabilitation techniques, prevention and the profession of midwife) a chance, after instance, to remain in service beyond sixty-five years of age to achieve 40 years of actual service, as long as it has not exceeded the limit of 70 years of age. As required by that provision, the Administration will grant such prosecution as long as the service does not give rise to an increase in the number of executives. In this case, the continuation of the relationship does not constitute a detention in service but the application of a specific discipline of legislative limit for retirement. Anticipating how much better specified later, however, it should be noted that, except in the case of complex structure, on the will of the Executive Director to continue the employment relationship until the fortieth year of actual service and over the 65th year of age can overrule the need for directors to fix unilaterally the contract following the discipline contained in art. 72, paragraph 11, of Decree-Law No 112 June 25, 2008, converted with amendments by law August 6, 2008, # 133. 3. The unilateral termination of the employment relationship. 3.1. The news of the discipline. As already noted, in the conversion of Decree Law No 90 of 2014, it was reformulated the art. 72, paragraph 11 of the decree-law June 25, 2008, # 112, which governs the unilateral termination of the employment relationship. Compared to the previous text, the provision does not place a time limit of validity (previously set at December 31, 2014); the unilateral resolution thus becomes an institution suitable regime by public administrations. The new legislation contains items of news relating to the scope, the conditions and procedure. As regards the scope, is expanded the audience of the administrations that can proceed with unilateral resolution ratio. In fact, in addition to public administrations under art. 1, paragraph 2, of legislative decree March 30, 2001, n. 165, independent authorities are also included. Under the new arrangement, in the presence of its assumptions, the unilateral resolution ratio could be exercised in respect of all categories of employees as possible recipients of early retirement regulated by art. 24, paragraphs 10 and 12, the mentioned Decree-Law No 201 of 2011. Therefore remain outside the scope of the Institute categories of staff special access to retirement schemes regulated, subject to harmonisation under subsection 18 of article. 24, as the staff of the security sector, defense and public assistance.
As for the conditions, while the previous text referred to the requirement of the maximum seniority contributory 40 years, the new reference invokes the contributory requirement updated to the achievement of early retirement, as regulated by art. 24, paragraphs 10 and 12 of the Decree-Law n. 201 of 2011. However, the unilateral termination cannot take place if due to the resolution the employee would suffer the penalties provided for by the already mentioned art. 24, paragraph 10, taking into account the provisions of art. 6, paragraph 2-c, second sentence, of Decree-Law No 216, December 29, 2011 converted with amendments, by law No 14 February 24, 2012, as amended by art. 1, paragraph 113 of the Act December 23, 2014, n. 190. Accordingly, with effect from the year 2014, the unilateral termination of the employment relationship can be applied in relation to the employees who accrue 42 years and 6 months of seniority pay and do 62 years of age and women 41 years and 6 months of ripening seniority pay and do 62 years of age (article 24, paragraphs 10 and 12 of the Decree-Law No. 201 of 2011, referred to; Decree of the Ministry of economy and finance December 6, 2011, published in the Official Journal No. 289 of December 13, 2011), without prejudice to subsequent adjustments to life expectancy on the contributory requirement. No longer can therefore proceed in ordinary one-sided resolution towards employees who do the 40 years of seniority pay (except in the case of recourse to the derogation from retirements to supernumerary, which continue to apply the provisions prior to Decree-Law No 201 of 2011).

Employees who have completed the requirement of access to retirement by December 31, 2011 remain subject to the regime of current retirement access (also in application of article 2, paragraph 4, of Decree-Law no August 31, 2013. 101). This is the case of those who by that date have gained 96 share. Even after the entry into force of the novella (August 19, 2014), against these employees the directors may exercise the withdrawal limit is reached ordinamentale, as well as the requirement of seniority contributory 40 years of service (in fact, the new regulation has repealed paragraph 20 art. 24 of the aforementioned Decree-Law No. 201 of 2011, which contains the reference to article 72 , section 11 of the Decree-Law n. the recent amendment of existing 112 2008 in the text). Finally, as regards the procedure, the new wording of the provision makes explicit the need that the decision is motivated with reference to organizational requirements and selection criteria applied. In any case, in order to comply with the obligation to state reasons just mentioned, it should be noted that in accordance with art. 16, paragraph 11 of the Decree-Law 98 of 2011, converted into law No. 111 of 2011, the exercise of the Faculty accorded to public administration "does not need additional motivation if the administration concerned has previously determined on a general basis the appropriate criteria by an act of general internal organization, subject to the views of the supervisory bodies". Under these conditions, for the fulfilment of the obligation to state reasons, the adoption of that Act will allow administrations to solve the employment relationship by recalling the criteria contained therein provided that the above criteria the Administration's organizational choices emerge. In defining the criteria harmonization solutions will assess whether administrations between men and women, about the time of adoption of the resolution one-sided relationship, in order to avoid cases of gender discrimination in relation to the different requirement of seniority of contributions required. Remains unchanged, the period of notice for rescission, that even the new provision States in 6 months. The withdrawal can also be communicated in advance of the implementation of its assumptions. 3.2. Special Regimes. The last part of the new text of art. 72, paragraph 11, of Decree-Law No 112 of 2008 provides for certain categories of personnel to which the unilateral termination of the employment relationship does not apply or apply with safeguard. It maintained the exclusion for judges and university professors, it is extended to the leaders of complex structure of the national health service, which includes medical health leaders who entrusted responsibility for complex structure (for the category of health executives, see art. 1 of the national collective bargaining agreement, health professional leadership, technical and administrative roles of the national health service, the regulatory period 2002/2005; These are the directors of nursing, rehabilitation, prevention techniques, and the profession of midwife), as already indicated in section 2.3.2. For medical and healthcare leaders of complex structure, therefore, continue to apply the special scheme laid down in art. 15-h Legislative Decree December 30, 1992, n. 502, as amended by art. 22 November 4, 2010, law n. 183. For they, therefore, continues the right ' to continue the transaction exceeding the limit of 65 years at the request of the person concerned, until maturity of the fortieth year of actual service. In any case the maximum limit of stay cannot exceed the seventieth year of age and permanence in service cannot give rise to an increase in the number of executives. As regards, however, the medical directors and health role that is entrusted with the responsibility of a complex structure, contracting authorities may apply the unilateral termination of the employment relationship once completed the new contribution conditions for access to early retirement, but after completion of the 65th year of age. These doctors can still petition to continue the employment relationship until completion of the fortieth year of actual service (provided that such prosecution does not result in an increase in the number of executives) pursuant to art. 15-nonies of the aforementioned legislative decree No. 502 (concerning "health medical directors and the role of the national health service, including those responsible for complex structure"). The Administration can however not to accept the instance itself when a decision is to proceed with the termination of employment, including in relation to criteria adopted for the use of unilateral termination of employment, taking into account the organizational and functional needs and respecting the equal treatment, even to prevent undue injury of expectations of those concerned.
Rome, February 19, 2015 the Minister for simplification and administration Registered Sideboard to the Court of Auditors on April 13, 2015 Office Foreign Affairs and Justice Ministries P.C.M. acts, control, Reg.ne-Prev. # 924