Towards the 13th month: simulations and rules for employees

For the principle of non-discrimination, fixed-term workers are entitled to the economic and regulatory treatment in place in the company for workers with comparable permanent contracts, proportionate to the period worked. They are therefore entitled to a thirteenth month's salary.

If the employment relationship is part time with a daily, weekly, monthly or annual performance, therefore, less than contractually agreed, the Christmas bonus accrues in direct proportion to the hours actually worked (e.g. 50% for part time of 20 hours in a week, 75% for part time of 30 hours per week). But this does not entail any special calculation, because as mentioned above, since the basis of calculation is the salary in force at the time of payment and since it is already re-proportioned to the actual working hours, the 13th will also already be adjusted. The problem arises in the event of a change from full-time to part-time employment and vice versa, if this occurs during the year. In such a case, the 13th month's salary must be calculated separately, taking into account the full accruals for periods worked full-time and the prorated accruals for months worked part-time.

Article 37 of the CCNL domestic workers prescribes that they are entitled to an additional month's pay, equal to the de facto global remuneration (including the allowance in lieu of board and lodging) to be paid by December. The bonus accrues on the basis of the periods worked, as is the case for most workers. The collective agreement specifies that the thirteenth month bonus also accrues during absences due to illness, accidents at work and maternity, within the limits of the period of job retention and for the part not paid by the relevant bodies.

The reference period for calculating the thirteenth month is the calendar year that ends with the payment and accrues at the rate of one twelfth per month. The basic prerequisite for the right to accrual is the performance of work or the presence of events of various kinds that are in any case protected with or without a financial supplement from the employer. In such cases the calculation becomes complicated.

The gross amount of the 13th month payment constitutes taxable income and must be subject to the normal rates in force in the month of payment. The same taxable amount is subject to Inail premiums. The amount net of the employee's social security deductions is subject to normal IRPEF taxation applying the rates in force in the month of disbursement, using the monthly brackets without cumulating the taxable amount with that of the pay period in which the bonus is paid. For this reason, and also to respect the timing of disbursement (usually before Christmas), it is common to draw up a separate pay slip. Monthly work and family deductions are not applied to the tax calculated in this way, which only apply to each month's current pay. It should also be noted that family allowances do not apply to the 13th month's salary or to any additional monthly payments. Finally, the payment, even if it occurs only once a year, does not have the character of occasionality and therefore, pursuant to Article 2120 of the Civil Code, is part of the remuneration useful for the calculation of the leave entitlement.

If by the Christmas holidays, or by a different deadline stipulated by the collective agreement, the thirteenth month bonus has not been paid by the employer, the employee may first of all remind the employer by a registered letter or e-mail. If the collective agreement provides for a specific date by which to pay the thirteenth month's salary, after that deadline the employee is entitled to interest in addition to the additional month's salary. If there is no response, one can turn to the labour inspectorate, attempting a conciliatory solution. If the employer does not pay the 13th month, the employee, in addition to issuing an injunction to obtain the monthly payment, may resign for just cause. To constitute resignation for just cause, case law speaks of repeated non-payment of salary. It must therefore be inferred that a slight delay cannot constitute just cause for resignation. Finally, it must be remembered that in the case of the 13th month salary, the limitation period is three years (Art. 2056 of the Civil Code), since it is an element of the salary that is not paid every month; in order not to lose it, one must in any case remember to formally request it (also by registered letter) within three years from the date on which payment should have been made.