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Newsletter T&P N°42 Eng

Newsletter T&P N°42 Eng

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Newsletter Trifirò & Partners Law Firm November 2010
Newsletter Trifirò & Partners Law Firm November 2010

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categoriesBusiness/Law
Published by: Trifirò Partners Avvocati on Dec 01, 2010
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12/01/2010

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Editorial
 The November issue of our newsletter is the last for the year 2010 as, like theprevious years, our December issue will cover the highlights of the whole year,which shall be mailed right after the festivities of the year's end. We wish to extendour heartfelt thanks to all of our readership who express their interest andappreciation by regularly reading us.
Our
Employment Law 
section deals once again with the most important pieceof legislation this year, namely, the reform that modifies many aspects of labourlaw.
In the wake of the overviews published in the previous issues, we now look more closely at the issue of work hours, daily rest time and violations with regard tothe status of the employment relationship. On that score, in particular, the Ministryof Labour has released the first circular (circular n° 38, 12 November 2010)providing explanations on the straightening out of employment relationships.
Our Focus article also examines the recent Legislative Decree #187, 12November 2010 setting forth protection standards for workplace safety.
 The
 Ruling of the Month” 
examines
an interesting case of regarding thehypothesis of a so-called "un-technical" compensation between credit of theemployer and credit of the employee
(in the case in hand, competence fortermination indemnity deferred salary and damage compensation for illicit conduct). The
“Other Rulings” 
section features a case of dismissal upon extinction of theposition, a sentence pertaining to the estimation of damage compensation uponsuspension from Complementary Benefits upon Idling Unemployment, and a rulingon the subject matter of contributions and sanctions requested by Social Securitysubsequent to the reinstatement, directed on Appeal, of an employee whosedismissal had been allowed by the lower court.
Our
Civil Law
section reports on the coming into force (on 18 November 2010)of the new provisions with respect to agents of financial instruments and creditmediators, introduced by Legislative Decree #141, 13 August 2010.
As the articlemakes clear there is a line drawn between these two types of activity that reflectstwo distinct and separate professions. The
 Insurance
section deals with the topicof civil responsibility, limits damage compensation, and statute of limitation forremedial action.
Our
“Information Brief” 
examines the bill recently approved by the governmentdesigned to modify legislative Decree #231, 8 June 2001
, regarding theadministrative responsibility of legal persons, companies, and associations alsodeprived of legal representative. Enjoy your reading!
Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,Tommaso Targa and Diego Meucci
This is an abridged and edited version in English of Trifirò & Partners
 newsletter. If you wish a full-length English translation, please contact Stefano Trifirò:  stefano.trifiro@trifiro.it or  newsletter@trifiro.it  
NEWSLETTER T&P N°42 YEAR IV
NOVEMBER 2010
NEWSLE TTER
 Trifirò & Partners Law Firm
CONTENTS
 EDITORIAL
 EMPLOYMENT LAW
 
 FOCUS 2 
 FIRM CASES 5
 CIVIL LAW, COMMERCIAL,INSURANCE
FOCUS 6
INSURANCE 7
INFORMATION BRIEF 7
 CONTACTS8
 
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Focus
RECENT CHANGES IN LABOUR LAW
By Luca D’Arco and Orazio Marano
In the previous issues of the newsletter we talked about the project to reform a number ofaspects of labour law and we dwelt on the major changes regarding fix-term contracts (seeNewsletter T&P n°40 ), as well as the new procedure to bring action against individual dismissals(seeNewsletter T&P n° 41 ).
The Official Gazette published on 9 November 2010 Act #183, 4 November 2010.
In keepingwith our previous surveys, we shall examine briefly the changes introduced by the reform oflabour regulations, as well as the provisions approved with regard to workplace safety.
The new provisions regard the system of sanctions applicable to violations of regulationson work hours.
 Administrative sanctions had already been revised under Legislative Decree#112/2008 (converted into Act #133/2008), but such revision had been deemed inadequate andelusive in interpretation, so much so that the Ministry of Labour had had to clarify a number of points (see newsletter of October 2009), in particular with regard to repeat offenders of the samestatutory standard. Legislative Decree #112/2008 had, for example, reduced the amount of pecuniary sanctions, but set out that the sanction, ranging from
25 to
100, applied to everysingle employee and every single 24-hour period. In March 2009, the Ministry clarified, uponrequest, that where the worker did not enjoy daily rest over several 24-hour periods, the violationoccurred as many times as there were periods with no rest enjoyed. Subsequently, in anotherclarifications dated 19 October 2009, the Ministry conceded the possibility of a legal concurrencein case of formal concurrence (homogeneous or heterogeneous) of administrative violations,provided it was proven that the violation by the employer had occurred only once. In such case,under art. 8. §1, Act #689/1981
“save otherwise established at law, whoever by a commission or omission violates several provisions that are subject to sanctions provided therefore or commitsseveral violations of one of the provisions, is subject to the sanctions provided for the more seriousviolation increased threefold”
.
The reform of various aspects of labour law went back on that issue and rated the sanctions onthe basis of the number of employees involved and of the relevant period of said sanctions.
In the case where the number of weekly work hours exceeds the maximum
(48 hours perweek in the relevant period),
 
the reform has reduced the sanction anywhere between
100 and
750, raising up to a minimum of 
400 and a maximum of 
1,500 (without possibility of reduction),where violationaffects more than 5employees or where at least 3 relevant periods occurred asunder §3and§4 of art, 4 of LabourDecree #66/2003 (that is, within a period of 4 months, which may rise to 12 months under collective agreement).
NEWSLETTER T&P N°42 YEAR IV
PAGE 2
Employment Law
 
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Where the violation affects more than 10 employees or occurred over 5 relevant periods as under §3and §4 of art, 4 of Labour Decree #66/2003 (that is, within a period of 4 months, which may rise to12 months under collective agreement), the sanction jumps to anywhere between
1,000 and
5,000 (with no possibility of reduction either).
In case of violation with regards to holidays
, the reform applies a similar complex system of pecuniary sanctions qualified by the number of employees affected the number of relevant periodsand may reach
4,500 where more than 10 employees are affected or absence of holidays wasrepeated for at least 4 years. Such sanctions do not apply to economically dependent workers,collaborators, workers carrying out assistance and care assignments, provided such works oncontract do not exceed 240 hours. On-going collaboration contracts or contracts on projects arealso changing, as the so-called economic dependency steps in. Yet, a ceiling has been fixed to thepossibility of damage compensation where the fully dependent nature of the employment relationshiphas been ascertained. Such compensation may vary between a minimum of 2.5 monthly salary to amaximum of 6 monthly salary retribution. The whole being subject to the provisions set forth underart. 68 Act #604/1966 and the employer has accepted the stabilization plan whereby by 30/9/2008 aregular permanent employment contract has been underwritten, or he ensures after 24/11/2010(date of the coming into force of the labour law reform), the converting of an existing employmentcontract into a permanent contract.
In case of violation of the regulations of the status of employment relationship
, the reform,with a view to fighting black economy, provides for a heavy sanction where regular permanentemployment contracts are un-registered, which leaves outside the range of sanctions other forms of un-registered employment contracts, still subject to the application of the sanctions provided forunder art. 19 of Labour Decree #276/2003 (which enforces the so-called Biagi Act). The law appliesto both private enterprises and government agencies, but is exclusive of people doing home chores.With a view to ferret out un-registered employment contracts, lawmakers have set forth that the"maxi sanction" shall not apply – on the ground of the derogation expressly provided under art. 3, §4of Act #183/2010 - where
“obligation of contributions due previously complied with, prove in any event the intention to not conceal the employment relationship, also where qualifications aredifferent”
.
Sanctions for non declaring the existence of an employment contract
are qualified according tothe typeof contract and may reach, in serious cases, anywhere between
1,500 and
12,000 foreach employee un-registered.
With regards to workplace health and safety 
, it is to be noted thatLegislative Decree 12November 2010 #187provides, in particular, for the extension of the power of administrativeauthority to determine accessory administrative sanctions where violations flowing from failure tocomply with preventive workplace health and safety standards. Art. 9 of the above-mentioned Decree provides that, where violations of workplace health and safetyand prevention of hazard standards are serious or repeated, the instruments used and destined tocommit such violations may be confiscated by the administration, as well as the things that were theproducts of such violations, also where no ordnance or injunction for payment has been issued.Such new procedure is in derogation of the principle set forth at art. 20 Act #689/1981 wherebylawmakers provided for administrative authority to apply administrative sanctions, penal andaccessory (consisting in the deprivation or suspension of entitlements and rights) only upon issuanceof ordnance or injunction, or upon sentencing.
 
NEWSLETTER T&P N°42 YEAR IV
PAGE 3

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