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Following the judgment of the Supreme Court of October 2019, several positive judgments continue to be reported in favor of school personnel regarding the full recognition of the pre-role period for the purposes of career reconstruction
The fact
Employees of the Ministry with the qualification of ATA Personnel acted, claiming that they had been hired for an indefinite period of time, after having each performed many years of precarious work. They stated that the Administration to which they belong, after assuming the position and overcoming the trial period, had only partially recognized, with the purpose of rebuilding the career, the service provided before being assigned to the position, applying the provisions in which refers to art. 4 paragraph 13 of Presidential Decree no. 299 of 1988, which in turn refers to art. 3 of DL n. 370 of 1970, first modified by art. 23 of the DPR n. 420 of 1974 and later by Law no. 463 of 1978, and finally by Legislative Decree no. 297 of 1994, that in art. 569 established that “the service was recognized for legal and economic purposes in its entirety and up to a maximum of 3 years for legal and economic purposes, and in the remaining part up to two thirds, only for economic purposes.”
At this point, they pointed out through their lawyers that this legislation provided only a partial recognition of the seniority of the service prior to the function, since the first 3 years were fully recognized for both legal and economic purposes, while the periods Later they were recognized for legal purposes to the extent that 2/3, and the remaining third was recognized for economic purposes only after 20 years, without recognition for legal purposes. Therefore, they stated that this discipline was in contrast with Clause 4 of the Framework Agreement on Fixed-Duration Work, implemented by Directive No. 1999/70 / EEC.
The right of ATAs to comprehensive reconstruction of the pre-role period
Section of the Court of Bologna Labor, Sent., 03-05-2020 accepts the appeal proposed by this staff through their lawyers. The Court observes that the issue of law that is the object of this controversy was resolved by the Supreme Court of Cassation with judgment No. 31150/2019 of 10-15-2019 published on 11-28-2019, which ruled that “art. 569 of the Legislative Decree No. 297 of 1994, regarding the recognition of the pre-role services of the administrative, technical and auxiliary staff of the school contrasts with clause 4 of the CES UNICE and CEEP Agreement annexed to Directive No. 1999/70 / CE , in the part in which it establishes that the actual service provided, calculated in accordance with article 570 of the same decree, is fully useful for legal and economic purposes, only during the first three years and for the relevant residual portion for purposes economic within the limits of two thirds.
Once the infringement of the aforementioned clause 4 has been verified, the Judge is obliged to set aside the norm of internal law in opposition to the Directive, and to recognize for all purposes the fixed-term worker, then placed in the functions of the Administration , the entire service provided. “Therefore, applicants have the right to full recognition, both for legal and economic purposes, of the service prior to the role performed as ATA personnel, and of the consequent salary differences derived from the different categories to operate, in application of the sectoral national collective agreement in a gradual manner ”.
The salary differences are due within the limits of the five-year prescription.
The court notes that “the resulting wage differences are owed within the five-year statute of limitations”, which must also be assessed on the basis of the disruptive acts alleged by the plaintiffs.
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