As a rule, the collective contracts, in establishing the productivity award, identify the criteria for quantification and accrual, or assign them to the contracting company. However, it is also possible that the collective negotiation assigns the task of identifying the objectives for the attainment of the right to the award in favour of workers to the employer.
If the contractor fails to set up and communicate said objectives, thereby rendering themselves in failure of a contractual obligation, the employee can request the payment of the variable fee in court but will have the burden of deducing and proving the achievement of the objectives which, according to the principles of correctness and good faith (article. 1175 and 1375 civil law) should have been reasonably established by the employer, with the view of continuity with those previously established and with reference to the market situation as with the profitability potential of the company.
In this sense, by charging the employee with onus probandi with difficulty, the Milan Court of Appeal expresses this with sentence no. 172/2017. (LC)
