Year 1 Leave
Q: I would appreciate some details regarding holidays in Italy. How do holidays accrue? When someone is hired do we accrue their holidays month by month until they reach the end of the holiday year. Are they entitled to all days due in a complete year or do they just accrue holiday entitlement for the second year and not have the right to take holiday in their first year?
A: Companies are free to offer annual leave for any period above the legal minimum and are frequently required to do so in Italy through collective agreements.
First of all, Article 36 of the Italian Constitution and Article 2109 of the Italian Civil Code grant all employees the right to annual paid holiday. In fact, so much that an Italian worker may never lose their leave rights and can argue that untaken leave can be rolled over into perpetuity. Moreover, EU Directive no. 88/2003 specifies that all employees in EU member states are entitled to at least four weeks of paid annual leave.
Article 10 of the Italian Legislative Decree no. 66/2003, which implements the aforementioned EU Directive recognised all employees’ right to a minimum of four weeks paid annual leave, allowing for more favourable provisions to apply through collective agreements. This Article was, however, amended by Legislative Decree no. 213/2004.
Decree no. 213/2004 is a (as yet unchallenged) change which is contrary to EU law, as it undermines the principle of a 4-week minimum leave period. It states that an employee accrues two out of four weeks of paid annual leave entitlement during the first year of their employment. The remaining two weeks may be taken within 18 months after the end of that first year. In other words, an employee has a right to may be take a total 5 or 6 weeks during year two – depending when they joined.
As this Decree is contrary to the EU Working Time Directive it is necessary to look at this matter through a legal principle called “Direct Effect”. This EU principle establishes that if a Directive is not implemented at all, partly implemented or wrongly implemented then the Directive wording itself (and all related European Court Judgements) has direct validity in the country concerned. This means that The Directive is the law, not the Italian Law. This is particularly the case in Italy because the constitutional right to take leave is also so strong and the general practice of collective agreements is to recognise the right to 4 weeks leave or more built up pro-rata from day one of employment.