From the Puglia Region to the Municipalities of Florence and Naples: more and more local authorities are intervening to protect the minimum wage in public procurement
There is increasing talk of minimum wages, even in relation to public procurement.
Fuelling the debate are the various initiatives adopted by various Italian regions and municipalities which with laws, resolutions and guidelines appeal to art. 11 of the Procurement Code, binding operators to apply a minimum non-derogable economic treatment equal to 9 euros per hour.
Which regions and municipalities have already taken action? What does this mean for public bodies and economic operators?
Here is a review – broad but not exhaustive – of the most important measures adopted by regions and municipalities regarding minimum wages in public procurement.
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The resolution of the council of the Municipality of Florence on the minimum wage in public procurement
The resolution of the council of the Municipality of Florence of 18 March 2024, concerning the “Protection of the minimum wage in contracts of the Municipality of Florence” establishes that in all tender procedures for the awarding of contracts with the Municipality of Florence, the relevant offices must ensure that the CCNL “indicated in the tender procedure” and that is the applied CCNL “by economic operators at the time of the offer” provide, in any case, “a minimum non-derogable economic treatment equal to 9 euros per hour”.
The resolution provides that the municipal administration must “conduct the equivalence assessment on the basis of the 12 parameters outlined by ANAC in the explanatory report to the standard notice no. 1/2023, drawn up on the basis of the indications provided by the National Labor Inspectorate with Circular no. 2 of 28/7/2020. The municipal administration may consider equivalence to exist in the event of deviations in a maximum number of two parameters”.
Without prejudice to the verification of the parameters established by the ANAC guidelines, “the Municipal Administration must, first of all, ascertain that the different collective agreement indicated by the economic operators in the offer must provide for a minimum non-derogable wage of 9 euros per hour”.
In practice, the application of the minimum wage of 9 euros must be verified as a priority with respect to the other 12 parameters indicated in the ANAC guidelines.
The Puglia regional law on minimum wages in public procurement
The Puglia Region has approved the regional law of 30 May 2024, n. 19 “Provisions for the quality and safety of work, for the fight against contractual dumping, as well as for employment stability in public procurement or concession contracts carried out in the regional territory”.
The law provides that in tenders there is a bonus for companies that apply the minimum wage of 9 euros; the rule is distributed along the entire chain of contracts and subcontracts.
The law is applicable to all public procurement and concessions of the Region, of local authorities present in its territory and of all instrumental bodies and organizations, including local health authorities.
In detail, in procurement or concession contracts based on the award criterion of the most economically advantageous tender, the contracting authorities consider the following as qualitative award criteria:
- the organization focused on well-being, health and safety, and quality of work;
- certification paths that concern work organization and risk management in compliance with the law;
- training courses on health and safety in collaboration with joint bodies;
- the measures relating to energy and environmental sustainability adopted by economic operators;
- measures to promote youth employment, gender policies and equal opportunities between men and women;
- the development of actions aimed at hiring young people up to thirty-six years of age; the score achieved in the legality rating;
- measures for the inclusion of employed disabled workers;
- the assumption of the obligation to absorb all personnel already employed by the outgoing contractor by the incoming contractor in the contract change procedures;
- the application of the minimum hourly economic treatment of no less than nine euros gross;
- the presence of company nurseries, play areas and educational services for children.
In labour-intensive procurement, contracting authorities may require economic operators to submit:
- a descriptive report of its business structure, indicating, by way of example, information relating to the technical-organisational and economic-financial capacity and the technical-organisational structure dedicated to the contract, the personnel, means and equipment owned by the company or at its disposal or in support of others, the national collective agreement applied in reference to the main activity which is the object of the contract;
- as well as, in the case of services subcontracted, of the draft contract between contractor and subcontractor or of the network contract or of another collaboration contract between companies having an impact on personnel, indicating the specific methods of implementing equal economic and regulatory treatment and of applying the national collective agreement applied in reference to the prevalent activity, in accordance with the provisions of the Code.
The address act on the minimum wage of the Lazio Region
The Lazio Regional Council has unanimously approved the motion no. 155 of 11 April 2024 concerning: “Protection of the minimum wage salary in contracts for the procurement of works, services and supplies and in concessions of the Lazio Region”.
The motion recalls the EU directive 2022/2041 approved on 19 October 2022, and the ruling of the Supreme Court of Cassation, Labour Section, of 2 October 2023, and provides that the Region, as contracting authorityrequest “for economic operators participating in tender procedures, enhanced protections for workers involved”, who will have to receive a minimum wage nine euros per hour.
Municipality of Naples: resolution on minimum wage in public procurement
The Naples City Council has approved a policy document aimed at protecting the minimum hourly wage in Naples City Council contracts.
Resolution 297 of 19 July 2024, which directly commits both the Administration and the companies owned by the Municipality, obliges tall economic operators to whom the Municipality of Naples entrusts works, supplies and services to provide for an economic treatment for employees of no less than 9 euros per hour.
The measure also contains constraints on collective agreements that must be applied to personnel employed in works, services and supplies subject to public procurement, in accordance with the provisions of the new Public Contracts Code.
Minimum wages: what does art. 11 of the Procurement Code provide?
Art. 11, comma 1 del d.lgs. n. 36/2023 (cd Public Procurement Code) provides that “The following applies to personnel employed in works, services and supplies which are the subject of public contracts and concessions: national and territorial collective agreement in force for the sector and for the area in which the work is performed, drawn up by the most representative employers’ and workers’ associations at national level e the one whose scope of application is strictly connected to the activity which is the object of the contract or of the concession carried out by the company even in a prevalent manner”.
However, Article 11, paragraph 3 provides that “Economic operators can indicate in their offer the different collective agreement applied by them, provided that it guarantees employees the same protections than that indicated by the contracting authority or the granting body”.
The Procurement Code, therefore, allows the economic operator participating in the tender to also apply another collective agreement different from the one indicated in the tender notice, provided that it guarantees the same level of protection.
In this regard, the ANAC standard notice no. 1/2023 provides that such equivalence must be established by verifying some contractual parameters indicated by the circular of the National Labor Inspectorate no. 2/2020.
PNRR 4 decree on the economic treatment of workers
Legislative Decree 19/2024 (PNRR 4 decree) strengthens measures to combat the irregular use of contracts also with regard to working conditions.
Article 29 of Legislative Decree no. 276/2003 adds paragraph 1-bis, according to which personnel employed in the contract for works or services and in any subcontracting must be recognized an overall economic treatment not less than that provided for by the collective agreements (national or territorial) most widely applied “in the sector and for the area whose scope of application is strictly connected with the activity which is the object of the contract”. Therefore, the application of the entire collective agreement is not envisaged, but only of the relative economic treatment.
In the context of public and private procurement for the construction of building works, article 29, paragraph 10, of Legislative Decree 19/2024 (as amended by Legislative Decree 60/2024) introduces theobligation for the project Manager in public procurement and for the director of works in private contracts (or the client, in the absence of appointment of the works manager), to verify, before proceeding to the final payment of the works, the appropriateness of the impact of the manpower on the overall work, in the cases and according to the methods set out in D.M. 143/2021.
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