Minimum wage: the Italian Supreme Curt States that it may be necessary to go beyond the collective bargaining agreement of reference

It did so by honoring Article 36 of the Italian Constitution and reaffirming the importance of collective bargaining. Nevertheless, this may not be enough. In this context, the Supreme Court points out the solution for minimum wages that turn out to be too low: it is necessary to consider the collective bargaining agreements of the related sectors or, possibly, other benchmarks to reformulate the minimum wages and try to arrive at acceptable thresholds. 

The minimum wage has, for months, been at the center of a great debate regarding its usefulness and possible effects on the labour market. The topic is also beginning to assume great importance in jurisprudence as well. 

With its sentence no. 27711 of 2 October 2023, the Italian Supreme Court overturned the judgment of the Appeal Court. 

In the second instance, in fact, the Appeal Court rejected the employee's claim, arguing that the Cooperative in question had undoubtedly applied the provisions of the CCNL Vigilanza Privata e Servizi Fiduciari (National Collective Bargaining Agreement for Private Security and Trust Services) to its employees, which pertained to its sector of activity and was stipulated by the most representative trade unions at national level. 

It was thus established that employment relationships which are regulated by collective agreements of the specific sector of activity and are signed by the most representative trade unions at the national level, are to be excluded from the conformity assessment pursuant to Article 36 of the Italian Constitution.

The Supreme Court reiterates the concept that, for the purposes of identifying the fair and sufficient remuneration already provided for in Article 36 of the Constitution, the latter must be verified based on the determinations set out in the collective bargaining agreement stipulated by the most representative trade unions. 

But that's not all. The Supreme Court, in fact, winds back its previous decisions by arguing that the real problem arises when the relevant collective bargaining agreement itself determines minimum wages that are too low. 

In this case -according to the Supreme Court- the judge must verify the economic treatments provided for by other collective bargaining agreements in similar sectors or, alternatively, refer to other criteria. Therefore, it may be necessary to consider the economic and statistical indicators used to measure the poverty threshold such as, for example, the ISTAT index, the Uniemens data for calculating the average wage, the amount of the unemployment benefit (“NASPI”) or the salary integration measures in case of suspension of activity.

The judgment of 2 October is part of a bundle of rulings: specifically, there are five other judgments, all with homogenous motivations (Cass. civ., Sez. lav., 2/10/2023, no. 27713; Cass. civ, Sez. lav., 2/10/2023, no. 27769; Cass. civ. Sez. lav., 10/10/2023, no. 28320; Cass. civ., Sez. lav., 10/10/2023, no. 28321; Cass. civ., Sez. lav., 10/10/2023, no. 28323). Moreover, also the Court of Bari, with the very recent sentence no. 2720/2023 of 13 October 2023, followed the orientation of the Supreme Court. In all such cases, the employer was condemned and must apply a different wage treatment resulting in the payment of the relevant accrued salary differences.

One can therefore speak of a drastic and sudden increase in legal proceedings in the field of wages. This -as a direct consequence- will make it necessary to resume and develop the draft legislation on minimum wage, already proposed in the previous legislature. 

The National Council of Economy and Labour (Consiglio Nazionale dell'Economia e del Lavoro, “CNEL”) has also recently expressed itself on the topic. In fact, on 12 October 2023, the final document on ‘working poor and the minimum wage’ was approved by a majority vote. Nonetheless, it was dismissed the idea of a statutory minimum wage, arguing that its introduction would not solve the issue of the so-called “working poor”.

A broad debate that will have a big influence in the future, leading to a plurality of -possibly also class action- litigation.