Substantial nature of changes to the employment contract

The modification by the employer of the procedure for payment of subsistence allowances, imposing payment by means of a card by which the worker is provided with the actual expenses incurred, provided that a limit is not exceeded, is not substantial. This change is not substantial, since it does not make the provision of the service more onerous and maintains the employer's compensation for the expense incurred at the same amount. In effect, the only change is that the employee could previously receive the full amount of the allowance even if he/she spent less, whereas now the company pays the expenses actually incurred.

In one company there was an extra-statutory agreement on the structure and content of the Single Agreement (not published in the Official State Gazette or in any other media) which laid down the rules for the payment of the subsistence allowance. This agreement was extended until it was denounced by the company and a new negotiation process was opened. On the specific issue of per diems, the company proposed several changes in the Joint Committee of the Agreement, but they did not succeed. Finally, the company decided to implement another procedure for their payment through a Mastercard (called gourmet cheque), which was activated from 1.30 p.m. to 5 p.m. with a daily limit of €30.38 for lunch (the same amount charged in 2011 for this concept), a card whose use avoided payment by the workers who were no longer paid the daily amount of the lunch allowance. The daily allowances for breakfast and dinner remained unchanged.

The SC upholds and annuls the judgement handed down in the collective dispute by the NA which obliged the company to apply the mechanism of substantial modification of conditions for the following reasons:

• 1) The agreement containing the system - as described by the NA - is an extra-statutory agreement (it was not registered or published by the labour authority) and therefore does not have erga omnes effect and is not even effective once it has been denounced and the agreed term of duration has been breached. Therefore, it does not require the agreement of the interested parties, the decision of the employer after negotiation being sufficient (ET art.41.4 and 5; SC 9-3-11, ). Indeed, the modification of the conditions established in the statutory collective agreements - regulated in Title III of the ET - can only take place by agreement between the company and the workers' representatives and with regard to the matters authorised by the ET art.83.2. However, the modification of the collective working conditions, derived from any other source different from the above - for example an extra-statutory agreement - can be agreed by the employer unilaterally, once the consultation period established in the ET art.41 has ended without agreement.
• 2) The above requirements are associated with a substantial modification, which in this case does not occur, as the change imposed by the employer lacks substantiality. In fact, the change does not make the provision of the service more onerous, it maintains the employer's compensation for the expenses incurred in the same amount, as the only change is that the worker could previously receive the full per diem even if he spent less, whereas now the employer pays the expenses actually incurred. All the more so if it is understood that the Agreement itself, which contained the modified system, provided for the possibility of substituting the system of payment of a fixed allowance for the system of compensation for expenses, and shows that the purpose of the allowance is to compensate the expense and not to benefit the worker by paying him a higher amount.