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A new system of joint liability in tenders. The relief of the principal responsible’s liabilities (and possible protections for the client)

By Damiana Lesce and Valeria De Lucia

The D.lgs n. 25/2017, which entered in force on March 17, 2017, modified the system of joint liability in tenders.

There has been the cancellation of the collective bargaining’s possibility to derogate from that rule, and – above all – there has been the abolishment of the “benefit of preventive enforcement” previously in favor of the client. Therefore, from March 17, 2017, if the employer does not pay his employees (or does not pay the related contributions), the worker can take legal proceedings directly against the client. Obviously, the new regime makes it easier for the worker to obtain the unpaid wages. At the same time however, it strongly penalizes the companies in the supply chain.

In other words, the relief of the defaulting debtor’s liabilities, expose the client companies to the risk of having to respond to all the defaults of other companies. All this without being able to pretend that it has been put in place everything to force the principal debtor to pay. In other words, it becomes predictable that the worker may prefer to take legal proceedings directly against the most “virtuous” and “liquid” company, regardless who is his/her employer.

In conclusion, the new legislation, while making it easier for the employee to recover any unpaid wages, it releases the liability of the principal debtor in default. Hence, the re-establishment of a proper balance between the needs of the worker and those of the client is now duty of the negotiating autonomy between the companies. This task should cause the employer in default to honor his debts on first instance.

 

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