Important news from INPS regarding the protection of the Guarantee Fund for severance pay and work credits.
On the basis of the changes introduced by the Code of business crisis and insolvency (see the legislative decree of 12 January 2019, n. 14), INPS has summarized the provisions relating to the intervention of the Guarantee Fund for severance pay (Tfr) and work credits (article 2 of Law 29 May 1982, n. 297). The updates are contained in circular no. 70 of 26 July last. Let’s see them closely.
INPS specifies that the new instructions replace those provided by circular letters no. 74 of 15 July 2008 and n. 32 of 4 March 2010. (Grantennistoscana.it)
Also incorporating the consolidated guidelines of recent jurisprudence, the National Social Security Institute specifies that the new instructions replace those provided by circular letters no. 74 of 15 July 2008 and n. 32 of 4 March 2010. The document published in recent days summarizes the general principles and methods of application of the guarantees of the Fund aimed at ensuring a minimum protection for subordinate workers in the event of the employer’s insolvency.
The most salient fact is that secured credits which can be paid by the Guarantee Fund following an assessment the salaries relating to the last three months of work are the severance pay. But the news does not end here.
Severance pay and guarantee fund: what’s cooking
The circular in question states that from 1 July 2022, following the transfer to INPS of the social security function carried out by the Inpgi (the cash desk for journalists) as envisaged by article 1, paragraphs from 103 to 118, of the law of 30 December 2021, no. 234, the Guarantee Fund also provides services to professional journalists, publicists and practitioners who have a subordinate employment relationship.
The most salient fact is that the protected credits that can be paid by the Guarantee Fund following an assessment are the severance pay and the salaries relating to the last three months of work. (Grantennistoscana.it)
Furthermore, starting from the date of entry into force of the legislative decree 28 February 2021, n. 36, concerning professional and amateur sports bodies and sports work, the employers of employed sports workers (including professional and non-professional sportsmen) are required to pay the contribution to the Guarantee Fund if the aforementioned workers accrue the severance pay pursuant to the ‘art. 2120 of the civil code
That is to say, if the employed sports worker does not accrue the right to severance pay pursuant to art. 2123 of the civil code, or in cases where the national sports federations, associated sports disciplines and sports promotion bodies have not provided for the establishment of the fund envisaged by art. 26, paragraph 4, of Legislative Decree n. 36/2021.
Employment credits: coverage period and ceiling
It should be noted that, as regards work credits other than severance pay, the intervention of the Guarantee Fund concerns those accrued in the last quarter of the employment relationship as remuneration. Therefore, the accruals of the thirteenth month and other additional monthly salaries are included, in relation to the last three months of the employment relationship, as well as the sums owed by the employer by way of sickness and maternity benefits.
The requirements for accessing the benefits of the Guarantee Fund are different depending on whether or not the employer is subject to the provisions of the bankruptcy law. (Grantennistoscana.it)
The three months must fall within the twelve preceding the terms indicated by art. 2, paragraph 1, of Legislative Decree n. 80/1992, i.e. the date of the application aimed at the opening of the insolvency procedure against the employer, if the employee terminated his/her relationship before the opening of the procedure itself; the date of filing the appeal with the Court for the protection of employment credits, if the intervention of the Guarantee Fund takes place following an individual execution;
The date of the winding-up provision, of the temporary cessation of the exercise, of the revocation of the authorization to continue the business exercise, for workers who, after the opening of a bankruptcy procedure, have actually continued to work.
When the INPS Guarantee Fund intervenes
As INPS points out in the new circular, the requirements to enter to the benefits of the Guarantee Fund they differ depending on whether or not the employer is subject to the provisions of the bankruptcy law. Specifically, we refer to bankruptcy or judicial liquidation, composition with creditors and compulsory administrative liquidation procedures.
In cases where the employer is subject to bankruptcy proceedings, the requirements for intervention by the Guarantee Fund are the termination of the employment relationship, the opening of bankruptcy proceedings and the existence of the credit for TFR/wages outstanding. If, on the other hand, the employer is not subject to these procedures, the requirements for access to the Guarantee Fund are the termination of the subordinate employment relationship, the inapplicability to the employer of insolvency proceedings, proof of the existence of a credit for severance pay and salaries, the insufficiency of the employer’s patrimonial guarantees following the forced execution experiment.
The Guarantee Fund then intervenes in other particular cases: closure of the bankruptcy without assessment of the liabilities, over-indebtedness procedures with liquidation of the assets (article 14-ter of law no. 3/2012) and controlled liquidation of the over-indebted person (article 268 of the CCII), employer subject to the prevention measures governed by Legislative Decree no. 159/2011. The agreements that conclude the procedure of negotiated settlement of the crisis, however, they do not provide for the intervention of the Guarantee Fund as they do not affect workers’ credit rights.
2023-08-06 20:30:02
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