Newsletter

Editorial

N 50 August 2011

Trifir & Partners Law Firm

Welcome to the 50th issue of our newsletter! Over the last four years, this monthly contact with our readers has been unswervingly prompted and inspired by the marks of appreciation and interest for our work expressed by you all. Coming now to the contents of this issue. The summer scal package hammered out, which is the main topic of discussion these days, also concerns employment law. The scal measures adopted and the controversies surrounding them have somewhat left in the shadow a number of no less important regulatory provisions, particularly those regarding second level collective bargains and the attendant list of issues which are to be regulated and addressed by the social parties. Such is the theme examined in the Focus feature of the Employment Law section and we shall expect the law decree that came into force on 13 August to be subjected to modications that will also affect our eld, before its conversion into an Act. Another major topic is the Omnibus Text on apprenticeship, which was adopted on 28 July but which has not been published yet. We shall, therefore, wait for it to go the length of the full legislative process before dealing with it. However, we can already announce that the main novelty concerns the attribution of the regulation of apprenticeship to the exclusive responsibility of collective bargain agreements. The topic will be dealt in depth after its publication in the Ofcial Gazette.

Employment Law Focus 2 Firm Cases 4 Civil Law, Commercial, Insurance Insurance 7 Information brief 7 Contacts 8

The Ruling of the Month examines a complex and interesting decision of the Tribunal of Rome on an action brought against a transfer and which also involves the issue of parental leave and the procedure to request vacations. The Other Rulings section include decisions on disciplinary sanctions, a claim of higher qualication, and dismissal for just cause. The section is followed by our feature on Insurance Law, which, among other things, includes a decision of the Court of Cassation on injury at school, which happens to come handy, just ahead of back-to-school time. The Information Brief examines Legislative Decree #67, of 21 April 2011, dealing with heavy duty and with the expectation that workers subject to such work shall have their retirement anticipated (another highly topical issue, as the reform of the pension system is part of the summer scal package). Stefano Beretta and the editorial staff: Stefano Trir, Marina Tona, Francesco Autelitano, Luca DArco, Teresa Cofano, Claudio Ponari, Tommaso Targa and Diego Meucci

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THE FINANCIAL STABILIZATION MEASURES OF LAW DECREE N138, 13 AUGUST 2011

By Orazio Marano
By passing Law Decree #138, which came into force on 13 August 2011 (the day it was approved and published in the Ofcial Gazette), the government has introduced "further urgent provisions for nancial stabilization and development". Among a number of issues, the government also provided for public and private employment relationships. As regards the latter, special articles are dedicated to the support to collective agreements of proximity (art. 8), compulsory job placement and compensation schemes (art. 9), interprofessional funds for continuing learning (art. 10), level of protection for the activation of trial period (art. 11), and unlawful intermediation and exploitation of labour (art. 12). As regards second level collective agreements, the decree contains a listing of issues that may be subjected to agreements underwritten by the nationwide more representative workers'unions, or by company union representatives, where aimed at higher productivity, the disclosing of unreported and undocumented work, increase in competitiveness and wages, management of ailing businesses and employment cutbacks, as well as organization of labour and production (in particular, with reference to the installation and management of of audio-visual systems and new technology, remits, grades and managerial supervision of personnel, x-term and part time employment contracts, recourse to supply of labour force, working hours, modes of hiring and regulations of the employment relationship also in the shape and form of co-ordinated and on-going collaboration on project, transformation and conversion of employment contracts and the consequences in case of employment termination, and prohibition of discriminatory dismissal and dismissal of female employee in coincidence with her getting married). What is worth noting, in particular, is that provisions regarding issues contained in collective agreements in force and underwritten before 28 June 2011 (date of the underwriting of the collective agreement between management and unions), retain their efcacy for all the personnel of the production unit where the contract applies (which, therefore, also binds workers not members of the signatory trade union), provided such contract was approved by a vote by a majority of the workers (the all inclusive efcacy of company collective agreements was provided for in the above-mentioned agreement between management and unions of 28 June 2011 and signed by CGIL, CISL, UIL and Conndustria the employers' association with the option to resort to a referendum, upon request by one of the signatories of the agreement between unions and management or by 30% of the workers employed in the production unit to which the company collective agreement refers and for the sole scope of having it declared invalid). Another innovation provided by law decree #138 regards "territorial compensation within the framework of compulsory placement" (regulated by Act #68/1999). Companies that employ people in different production units, and the private employers who are part of groups of enterprises

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pursuant to art. 2359. civil code, may independently carry out territorial "compensations" by hiring in one of their location a number of workers having an entitlement to employment superior to the one provided for at law and, therefore, may "compensate" such excess by hiring fewer workers in another production unit or in other enterprises of the group. Also, the package provides for the possibility to appropriate resources from inter-professional funds (regulated by art. 118, 1, Act #388/2000) also for the adoption of learning schemes for trainees and collaborators on projects. Training and non-curricular orientation period schemes have been overhauled. Only such trainees shall be promoted as meet specic requisites dened in advance by regional standards (failing which, they shall be subject to the application of regulations under art. 18 of Act #196/1997, and the applicative ministerial decree of 12 May 1998), and they may not last above 6 months (inclusive of possible extensions) and may concern only personnel fresh from high school or recent graduates, inside 12 months of the completion of high school or of graduation. The provisions do not apply to training promotions for certain categories of people. Lastly, the package introduces the crime of unlawful intermediation and exploitation of labour by way of the introduction in the penal code of art. 603-bis and 603-ter. People who pick workers and resort to exploitation, violence, and threats or intimidations face imprisonment from 5 to 8 years and nes from 1,000 to 2,000 for each worker picked. A list of the tests that qualify such intermediation as exploitation of labour shall include such features as retribution blatantly lower than provided by the collective agreement of reference, violation of workplace health and safety standards, modes of monitoring workers, degrading lodgings, breach of due weekly rest, and such aggravating circumstances as the employ of minors and exposition to highly hazardous situations. It remains to be seen if Parliament will introduce modications at the stage of conversion into decree.

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FIRM CASES
Ruling of the Month
TRANSFER - PARENTAL LEAVE - VACATION (Tribunal of Rome, 24 May 2011)

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A female employee impugned her transfer and the dismissal directed her upon refusing said transfer, as she argued the necessity to look after her ailing mother and alleged an acceptance to a request for holidays. In particular, the claimant complained of 1) the violation of art. 33, 3, Act #104/1992 on leaves for assistance to invalid mother; b) violation of the bona de and due propriety principles, for the retaliatory and punitive nature of the dismissal. The Tribunal pointed out, in respect to the posting, that interpreting art. 33, 5, Act #104/1992, recent judge-made law on the issue of legitimacy afrmed that the right to choose the place of work closest to one's own domicile and to not be transferred to another location without consent, does not qualify as absolute and boundless right of the worker, insofar as such right may be exercised where its exercise does not end up by injuring in a consistent manner the economic, productive or organizational exigencies of the employer", and went on to add, furthermore, that "dening more clearly the tenor of the provision mentioned (where it is set forth that the worker may not be transferred without his consent, without further specications), the joint sections of the Court of Cassation have lately claried that, in such last hypothesis, the interest of the person affected by disability is situated beyond the connes of the employer's power to transfer, prevailing over ordinary productive and organizational exigencies of the employer; this, however, does not exclude that the said interest should be conciliated with other relevant interests, different from those underpinning ordinary mobility (for instance, the ascertained suppression of a work position triggers the inapplicability of protection under art. 33, 5, second part, Act 104/1992: see in that sense Joint Sections of the Court of Cassation #16102, 9 July 2009). With respect to parental leave, the Tribunal also stressed out that only such kin as are within 3rd degree relatives of subjects affected with serious disability and ascertained as such pursuant to art. 3, 3, Act #104/1992 by the competent commission of the Local Health Authority (upon issuance of a certicate valid for 6 months)". In such circumstances, the tribunal held that the complaint was groundless and pointed out not only that the certicate submitted by the claimant was not adequate for her to obtain the leave requested, since it did not bear the signature of a specialized doctor of the Health Authority testifying to the existence of an ascertained serious disability and, as such, illegitimate, but also that said request was not at that point of compelling urgency since: "it appears as indisputable that none of the certicates mentions that said disabled person was already back then, and because of the different ability she was affected with, in a condition of impaired personal self-sufciency, incident on age, such as to require an intervention. With respect to the implied absence of such technical, productive and organizational exigencies as would justify the posting, the tribunal, after reminding that the onus was on the employer to prove the existence of such conditions as at art. 2103, civil code, to be entitled to proceed with such transfer, claried that said employer need not indicate also the reasons of the posting where such reasons are not expressly requested by the employee. Insofar as, in the case at issue, the claimant had not questioned expressly, nor disputed in court, the existence of reasons for the transfer, the tribunal found against the complainant, stating that: the decision of the employer to use an employee rather than another for the carrying out of tasks falling inside the qualication of said is inalienable.
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With respect to the alleged granting of holidays, the Tribunal pointed out that generic communication via e-mail to take a week off in the month of June", did not contain any specic indication as to the intent to enjoy a period of vacation, and was then followed by an e-mail from the company asking the employee to take one of the week's holidays in the period between June and September, which was not proof sufcient of the real intent of the claimant, much less was it "condign to demonstrate any approval of a holiday plan by the management. The Tribunal found in favour of the legitimacy of the disciplinary sanction also on that ground. (Counsels: Giacinto Favalli and Paolo Zucchinali)

Other Rulings
DISCIPLINARY SUSPENSION OF WORKER WHO REFUSED TO PERFORM HIS TASK ILLEGITIMATE WHERE SAID WORKER EXPRESSED EARLY ON TO HIS SUPERIOR THE DIFFICULTIES THAT SAID TASK ENTAILED (Court of Appeal of Milan, 31 January 2011) A worker brought action against his employer asking for the cancellation and the consequent revocation of a series of disciplinary sanctions against him. In particular, he requested the revocation of a three day suspension from work directed him after having refused to carry out an activity that typically fell inside his remit, arguing the practical difculties that the execution of such activity entailed andwhich he had previously detailed to his superior. The tribunal of Busto Arsizio held that the disciplinary sanction was legitimate, stating that, in any event, the complaints of the worker about the inadequacy of the tools provided him for the execution of the tasks may not be expressed by refusal to discharge his work performance, save only in the case, not to be found in the issue at hand, where there exists for the worker a risk to his health or of hazard to any other fundamental right. Overturning the sentence of the lower court on that point, however, the Court of Appeal found the sanction at issue disproportionate to the violation, giving particular prominence to the fact that tests had conrmed the difculties that the execution of such tasks entailed, and that the worker had said as much to his superior. (Counsels: Giorgio Molteni and Claudio Ponari) CLAIM OF HIGHER QUALIFICATION (Tribunal of Cassino, 15 June 2011) Where an employee claims the right to higher qualication, he must present and prove the contents of the remit he is to discharge, submit the collective agreement applicable and specify the type of managerial level that according to him bets the tasks he must carry out. Where the employee does not meet this burden of proof, the recourse must be struck down on the merits and the judge is in duty bound to obtain the collective agreement because the getting of such agreement in itself would not stand as any proof of the claimed right to higher qualication. (Counsel: Tommaso Targa)

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WORKPLACE BULLYING AND VEXATIOUS INCIDENTS (Tribunal of Milan, 7 April 2011)

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An airline pilot brought action, pursuant to art. 700 of the code of civil procedure, for interim relief and against his employer in front of the Tribunal of Milan, petitioning for the annulment of his dismissal for just cause and in addition as justied motive, having lost his ability to y on a number of air carriers of the company. According to the employee, the conduct adopted by the employer, on the occasion of the periodical test of ying ability (which he failed), qualied as no less than true and proper bullying, aggravated by downgrading. The Judge rejected the claim, pointing out that to qualify a conduct as bullying it was necessary to prove reiteration of the conduct over a rather substantial period of time while in the case at hand, the conduct alleged occurred in the course of two episodes: in the alleged interference at the time of the test and at time of dismissal, which, moreover, was also subsequent to a certicate of inability issued by a third party agency. (Counsels: Vittorio Provera and Marta Filadoro)

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Civil, Commercial, Insurance Law
Insurance Law
By Bonaventura Minutolo and Teresa Cofano
BLAZE OF VEHICLE PARKED IN PUBLIC AREA

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The parking of a motor vehicle in a public area or an area corresponding to such qualies, under the sense and the provisions of art. 2054, civil code and art. 1 Act #990/1969 (now art. 122 of Legislative Decree 209/2005), also within the connes of "trafc", with the consequence that in case of damages incurred by third party from the blaze of the vehicle parked in a public area or an area corresponding to such the insurer is also liable, save intervention of an independent cause, inclusive of fortuitous case, that was instrumental to the incident. (Court of Cassation, 13 July 2011, sentence #15392)

Information brief
By Vittorio Provera
Workers performing heavy duty tasks are entitled to anticipated retirement, without prejudice to the requisites of contributions not inferior to 35 years and the pension scheme in force at the time of eligibility to the preferential requisites. The new provisions are laid down in Legislative Decree #67, 21 April 2011. The workers who meet the standards of heavy work now set forth must submit their request with the apposite documentation within the period provided for.

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