Ratified treaty¹

Counting of overtime in the calculation of paid holidays/ Gap in national legislation/ Direct resolution of a dispute on the basis of international law

A worker had been constantly working overtime and claimed that that time should be counted in the calculation of his holiday pay. Since Italian legislation was silent on this issue, the Court relied directly on international law to settle the dispute:

“With regard to the payment of holidays, the Court affirms its own case law and holds that counting regular overtime in the payment of holidays is based directly on Article 7 of ILO Convention No. 132 of 24 June 1972, which entered into effect in Italy by virtue of Act No. 157 of 10 April 1981. That Article stipulates that every person taking a holiday must receive at least his normal or average remuneration throughout that holiday. A directive of that nature gives us to understand that in the event of variable remuneration the payment of holidays must not be less than the average wages, the regulation of the other factors (length of holidays, etc) being left to the State authority.”

Having thus relied on ILO Convention No. 132, the Milan Magistrate’s Court ruled that when overtime was worked regularly it must be counted in the calculation of the remuneration received during periods of paid holidays. 

¹ ILO Convention on Holidays with Pay (Revised), 1970 (No. 132).