A colleague writes to us that his company has decided to switch all its employees to the CCNL Commerce contract. “The absurdity is this” writes the colleague”: € 350.00/€ 500.00 is offered + commissions (at the starting line), all the rest (cars and accessories) at your own expense. I believe that there really is NO LIMIT to Human Folly and Stupidity, but a very serious thing is that many (de-formed) colleagues have accepted…….amazing!”
The colleague does not tell us other details, such as whether he treats prescription drugs or not, so we will try to comment on the basis of the little information provided.
Evidently if the CCNL of trade applied to the ISF provides for that type of remuneration it is for the function of "sales operator" that is, he is also paid with a commission, or with other forms of incentive. Remuneration means the monthly average of the global earnings received in the twelve months preceding the expiry date of the last periodic payment.
Therefore, first of all it should be consideredart. 122 of Legislative Decree 219/06 which states that "scientific reps must report to the scientific service referred to in article 126, on which they depend" and, precisely in art. 126 states: "the scientific service must be independent from the marketing or sales service of the pharmaceutical company". Therefore, it is illegal for them to be classified as "sales operators".
Going into the merits of the CCNL, it is in the worker's interest to apply the CCNL to which the employer is obliged to apply due to trade union membership, in this case to Farmindustria (Cass. 26742/2014). In the CCNL, the possibility of cancellation is only up to the stipulating parties, i.e. Farmindustria and trade union associations in the chemical-pharmaceutical sector. The CCNL is a regulatory act with binding effect and the only way to escape this effect is for the employer to withdraw from the association (Court of Turin sentence 1743/2016).
So in our system there is no obligation by the employer, who is not a member of an employers' organization signatory to a collective agreement, to apply the CCNL of the product sector in which the company operates, nor is there a duty to apply "a" collective agreement.
However, in the common interpretation, the collective agreement of the sector establishes the minimum salary parameter regardless of whether the employer agrees or not.
The purpose of the CCNL is to guarantee the conditions that are valid for all workers of a certain sector and mandatory for those who employ and fall into a certain category.
the CCNL governs employment relationships for all those aspects delegated by the Legislator or not foreseen by it. Usually the National Collective Labor Agreements are made up of three parts: the economic part, the regulatory part and the mandatory part. The latter contains the provisions governing the relations between the associations that sign the contract.
the CCNL, however, is also used for avoid competition among those who employ, as it could apply lower wage conditions, decreasing the cost of labor and consequently making unfair competition with others in the sector. In this way, all the companies that belong to a specific category know that using that specific collective agreement, none of them can offer the worker a salary that is lower than that offered by the other. The competition though it must also be avoided among workers which, given the crisis. they could accept, in order to get a job, even a salary that is not up to par.
In any case, in the event of a change in the CCNL, the acquired rights must be maintained. This implies that the regulation of the employment relationship in the context of a change in the collective bargaining agreement must take into account these rights which, as already acquired to the worker's assets, cannot be changed by subsequent changes to the bargaining agreement applicable to the relationship.
In the event of a unilateral employer provision, however, the company generally provides for the forced application of the new collective contractual framework, with operational measures aimed at preventing the risk of compensation due to the violation of various contractual obligations.
At this point, at least three ways can be activated: involving the labor inspectorate, involving the trade unions, taking legal action.
PS.: for information in the CCNL of trade in the "Additional protocol for sales operators" is specified inArt. 19 - Machine risk "With effect from July 2005, without prejudice to the responsibility of the Sales Operator for the deductible of € 130.00 for each accident, the costs of repairing the vehicle for passive accidents caused - without malice - by the Sales Operators during the work services will be supported by the companies to the extent of eighty percent and in any case with a ceiling of € 3,000.00 also with forms of insurance or other equivalent forms conventionally agreed between the parties concerned, without prejudice to the right to control the effectiveness of the damage and the correspondence of the invoice. The use of the vehicle must in any case be previously authorized by the company”.
