An article of our associate Dott. Gianni Mario Colombo, administrative and tax expert: working in the third sector entities.
Gianni Mario Colombo, Ratio Quotidiano; May 11, 2020
The reference legislation doesn’t regulate the internal relationship, but sets a limit on wages through two specific provisions.
The reform legislator didn’t provide a specific discipline of the working relationship in the third sector. However, he reiterated the obligation (art. 16 of the CTS) that workers from the third sector entities receive the economic and regulatory treatment to which they are entitled, on the basis of collective agreements (art. 51 Legislative Decree 80/2015).
In addition to this general provision, the Code contains two provisions that set a limit on wages. The first provision (art. 8, paragraph 3, letter b) is aimed at avoiding an indirect distribution of profits, in accordance with the principle that the ETS resources, both during life and in the event of dissolution body (art. 9), must be intended for the pursuit of activities of general interest.
The regulation sets an objective parameter (40% with respect to the remuneration envisaged for the same qualifications in collective agreements) beyond which the remuneration constitutes an indirect distribution of profits.
At this point, it is mandatory to recall the analogous provision of art. 10, c. 6, letter e, Legislative Decree 460/1997 relating to non-profit organizations, where, however, the limit beyond which an indirect distribution of profits was configured was set at 20%.
The regulatory provision in question is to be considered a substantive anti-circumvention rule which can be requested for non-application pursuant to art. 37-bis, c. 8, Presidential Decree 600/1973. In this sense, the resolution of the Revenue Agency 10.09.2002, n. 294/E.
In turn, art. 8 of the CTS provides an exception – in our opinion not fully justified – to the general rule (limit of 40%) set out above: “for proven needs relating to the need to acquire specific skills for the purpose of carrying out activities of general interest only to a limited extent to some sectors (art. 5, c. 1, letters b, g, h)”.
It is to be considered that, since the areas of non-application of the law are established by law, the procedure pursuant to art. 37-bis D.P.R. 600/1973 cannot be applied for other activities of general interest, as has been said about non-profit organizations.
Again with reference to the non-profit organizations, the Ministry of Labour and Social Policies intervened (note 27.02.2020 n. 2088) to clarify that, in the transitional period before the entry into force of the Third Sector Reform, the discipline of pursuant to Legislative Decree 460/1997, the provision of art. 10, c. 6, letter e, Legislative Decree 460/1997 and not as established by art. 8, c. 5, letter b), Legislative Decree 117/2017 is to be considered applicable for the indirect distribution of profits to workers.
Another provision contained in the Code (and analogously in art.13, c. 1, Legislative Decree 112/2017 for the social enterprise) prohibits, in order to impose fair remuneration within Third sector entities, differences in remuneration (gross annual) of employees above 1: 8.
The last paragraph of art. 16 provides that account must be taken of the respect of this parameter in the social report or, failing that, in the report pursuant to art. 13, c. 1 (Mission report).
In conclusion, no doubt, in our opinion, on the goodness of the objectives that the rules intend to pursue. However, some doubts arise about their effectiveness for the economic treatment reserved at the top levels, taking into account the need for institutions to have professionalism capable of managing complex realities that must compete on the market, ensuring the quality of the service.