Protection of Wages Convention, 1949 (No. 95) - Italy (RATIFICATION: 1952)

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Article 4(1) of the Convention. Partial payment of wages in kind. In its previous comments, the Committee noted the Government’s explanations that section 2099(3) of the Civil Code, which provides for the possible payment of remuneration exclusively in kind, should be considered as implicitly repealed as it contravened article 36 of the Constitution on the right to fair remuneration ensuring decent living conditions for workers and their families. The Committee also noted the Government’s indication that no collective agreements provided for the possible payment of remuneration exclusively in kind and trusted that the Government would take steps in due course to formally amend the provision in question. The Committee notes that the Government indicates in its report that article 2099(3) of the Civil Code corresponds to a form of compensation used in the past. However, the provision has not yet been amended. The Committee considers that for the sake of legal certainty, article 2099(3) of the Civil Code should be amended in order to only allow payments in kind to be partial, as provided for under Article 4. The Committee therefore requests the Government to take the necessary steps and to provide information in this regard.

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Article 4 of the Convention. Partial payment of wages in kind. In its report the Government refers to article 36 of the Constitution, which, since it lays down the principle of remuneration proportionate to the quantity and quality of the work done and, in any case, sufficient to guarantee decent living conditions for workers and their families, establishes the de facto obligation for branch collective agreements to require payment of a fixed part of wages in monetary form. Also referring to the absence in practice of provisions in collective agreements providing for the payment of wages wholly in kind, the Government concludes that section 2099(3) of the Civil Code, which provides for the possibility of wages being paid wholly in kind, is implicitly repealed. The Government explains that the payment of wages wholly in kind would clearly be insufficient to ensure that the essential needs of workers and their families are met and would therefore contravene the principles of article 36 of the Constitution. The Government adds that examples of allowances in kind exist for certain categories of workers such as agricultural workers, wardens and domestic workers (including the provision of lodging, heating, electricity or food), but it emphasizes that these allowances remain a supplement to the standard payment of wages in monetary form. While noting the Government’s explanations which seek to demonstrate that section 2099(3) of the Civil Code should be considered as implicitly repealed, the Committee trusts that the Government will take steps in due course to formally amend the provision in question, which, apart from belonging to a past era, as indicated by the Government in its report, is contrary to the letter of Article 4(2) of the Convention.

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The Committee has been drawing attention for a number of years to section 2099 of the Civil Code which is worded in a manner that does not exclude the possibility – however theoretical this may appear in modern labour market conditions – of workers’ wages being paid entirely in kind. It has been pointed out that even though the payment of wages in kind may nowadays be practised only partially or marginally (especially in domestic and agricultural work, fishing and porterage) as the Government indicates, Article 4 of the Convention is among the provisions of the Convention that are not self-executing and therefore require specific measures by the competent authorities in order to be implemented.

In its last report, the Government refers to section 36 of the Constitution which guarantees the workers’ right to remuneration commensurate with the quantity and quality of their work and in any case sufficient to provide them and their family with a free and decent living. The Committee takes note of the Government’s explanations concerning the constitutional safeguards on remuneration but considers that these observations are not strictly relevant to the point raised by the Committee. The Committee is therefore bound to reiterate that the national legislation is not in full conformity with the Convention to the extent to which section 2099 of the Civil Code continues to apply and the possibility of the payment of wages wholly in kind still remains. In this connection, the Committee wishes to refer to paragraphs 114 to 126 of its 2003 General Survey on protection of wages in which it analysed the principle of the partial payment of wages in kind in the light of relevant law and practice. The Committee once again expresses its firm hope that the Government will take appropriate action shortly and requests the Government to keep it informed of all future developments in this regard.

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The Committee notes the Government’s report together with its annexes and, in particular, the detailed information concerning the application of Articles 10, 11 and 14 of the Convention. It also notes Legislative Decree No. 152 of 26 May 1997 on the employer’s obligation to inform the worker about the conditions applicable to the employment contract or relationship.

Article 4(1). Further to its earlier comments, the Committee notes the extensive explanations supplied by the Government regarding payment of wages in the form of allowances in kind. In essence, the Government reiterates its earlier statements to the effect that remuneration in kind is a type of remuneration of a residual nature which is applied in certain employment contracts (domestic, agricultural, fishing, porterage), that the cash equivalent of benefits in kind is determined by collective agreements, and that recourse to wage payment in kind is in practice partial and marginal. In addition, the Government supplies information on the increasing use of so-called "fringe benefits" such as the canteen service and the problems to which such practices have given rise, especially with respect to monetary valuation and taxation.

The Committee can only observe, however, that the inconsistency between the national legislation and the Convention to which the Committee has been drawing attention for several years still remains to the extent that section 2099 of the Civil Code does not exclude the possibility of payment of wages wholly in the form of allowances in kind. The Committee recalls that Article 4 of the Convention only permits partial payment of wages in the form of allowances in kind (paragraph 1) and that where such payment is authorized, measures should be taken to ensure that such allowances are appropriate for the personal use and benefit of the worker and his/her family (paragraph 2(a)). The Committee hopes that the Government will take whatever steps may be necessary without further delay to ensure that remuneration in kind is limited to a fraction of the wage in accordance with the clear terms of the Convention. It asks the Government to continue to supply information on this matter, by indicating concrete measures adopted to this end rather than offering lengthy statements of a general nature.

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Article 4, paragraph 1, of the Convention. Further to the previous comments, the Committee notes the detailed information supplied by the Government regarding payment of wages in the form of allowances in kind. It notes in particular the Government's indication that payment of wages in kind can be found particularly in the agricultural sector, less in the fishing sector, and also in the domestic service and for the caretakers of apartment buildings, in accordance with the relevant collective agreements.

The Committee notes that, although the information supplied by the Government covers various aspects of the payment in kind - such as its determination and the attribution of monetary value for the purpose of calculating social security contributions - the information does not make it clear that the whole wage can never be paid in kind.

Therefore, it again asks the Government to indicate the measures taken or envisaged to bring the national legislation into line with the Convention by restricting the payment of wages in kind to a fraction of the wage. The Committee also requests the Government to provide further information on collective agreements that provide for payment of wages in kind and to provide copies of judicial decisions concerning the payment of wages in kind.

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The Committee notes the information supplied by the Government concerning the application of Article 8 of the Convention.

Article 4, paragraph 1, of the Convention. Under section 2099 of the Civil Code, employees may be paid wholly or partly in kind. Article 4, paragraph 1, of the Convention authorises, on certain conditions, part but not the whole of wages to be paid in kind. The Committee notes the Government's statement that, in practice, only very marginal use is made of payment in kind. It has nevertheless been pointing out the discrepancy between the national legislation and the Convention for several years.

The Committee notes from the information supplied by the Government in its report for the period ending 30 June 1991, the supervision exercised in particular by the courts pursuant to section 36 of the Constitution in conjunction with section 2099 of the Civil Code. It notes in particular the ruling of the Court of Cassation of 17 July 1965 (No. 1589/1965) whereby, in determining "fair remuneration", account must be taken of the whole remuneration, in both cash and kind. The Committee asks the Government to supply information on the measures taken or envisaged to bring the national legislation into line with the Convention by restricting the payment of wages in kind to a fraction of the wage. It also requests the Government to continue to provide information on collective agreements that provide for payment of wages in kind and to provide copies of judicial decisions concerning the payment of wages in kind.

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The Committee note with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 4 of the Convention. The Committee notes the information supplied by the Government in its last report and, in particular, the establishment of the committee provided for in the collective agreement of the agricultural sector (1979). This committee was to have examined whether any individual contracts existed which were not in conformity with the provisions of the collective agreements, because they could permit payment of wages wholly in the form of allowances in kind, as provided for in section 2099 of the Civil Code. The Committee notes from the report that this committee was never set up. According to the Government, the provisions of the Civil Code are still in force, and the possibility of the payment of wages wholly in kind therefore remains, even if, as the Government says, this eventuality is extremely remote. The Committee therefore hopes that the Government will take the necessary measures to amend section 2099 of the Civil Code, to bring it into conformity with the practice and with the provisions of the Convention. The Committee requests the Government to indicate in its next report, any measures adopted to this end.

Article 8. The Committee again expresses the hope that the Government will take the necessary measures in the near future, to ensure that deductions from wages are permitted only under conditions, and to the extent prescribed by national laws and regulations or fixed by collective agreement, as laid down in this Article of the Convention in order to protect workers' salaries, particularly against any deduction for the repayment of debts such as those incurred by loans, for example. In this connection, the Committee notes the information supplied by the Government, and the adoption of Act No. 74 of 7 March 1987, concerning deductions from wages for payment of alimony on dissolution of marriage.

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Article 4 of the Convention. The Committee notes the information supplied by the Government in its last report and, in particular, the establishment of the committee provided for in the collective agreement of the agricultural sector (1979). This committee was to have examined whether any individual contracts existed which were not in conformity with the provisions of the collective agreements, because they could permit payment of wages wholly in the form of allowances in kind, as provided for in section 2099 of the Civil Code. The Committee notes from the report that this committee was never set up. According to the Government, the provisions of the Civil Code are still in force, and the possibility of the payment of wages wholly in kind therefore remains, even if, as the Government says, this eventuality is extremely remote. The Committee therefore hopes that the Government will take the necessary measures to amend section 2099 of the Civil Code, to bring it into conformity with the practice and with the provisions of the Convention. The Committee requests the Government to indicate in its next report, any measures adopted to this end.

Article 8. The Committee again expresses the hope that the Government will take the necessary measures in the near future, to ensure that deductions from wages are permitted only under conditions, and to the extent prescribed by national laws and regulations or fixed by collective agreement, as laid down in this Article of the Convention in order to protect workers' salaries, particularly against any deduction for the repayment of debts such as those incurred by loans, for example. In this connection, the Committee notes the information supplied by the Government, and the adoption of Act No. 74 of 7 March 1987, concerning deductions from wages for payment of alimony on dissolution of marriage.