Employment Law Reform
By Stefano Trifirò and Luca D’Arco

N° 59 June 2012

Trifirò & Partners Law Firm

On 27 June 2012, amidst controversies and delays, the Lower House approved the Employment Law Reform, till then subject to provisions dating back to 1960/1970. Those regulations had grown somewhat musty and badly needed to be rejuvenated. The buzzword of the new system is "flexibility", both to access and exit the labour market. There will be – we do hope not on paper only – a new and faster type of dismissal process and unemployment shall be subject to a new form of protection. Indeed, lawmakers reserve the right to modify and integrate to the reform achieved so far new ad hoc amendments, which accounts for the reform to be known as "Reform in progress". Here following are the main points of the reform.

and rent labour contracts may respectively consist in one sole fix-term contract foe the performance of any type of remit without the necessity to indicate the corporate technical/organizational motives that justify the scheme, provided the contract does not exceed 12 months. on project may not be entered into for mere executive tasks. There exists a presumption of dependent contract where the tasks assigned to the collaborator are carried out in a manner similar to those discharged by dependents of the principal. contracts shall be the pre-eminent form of contract by means of incentives in terms of contributions and percentage of new hires. Compared with the first draft of the Bill, the final text provides for a duration not inferior to 6 months. case of dismissal fair way and for objective motives decided by enterprises with more than 15 employees, several scenarios must be envisaged: a) in case of nullity (for example, discriminatory dismissal) the employee is reinstated at the workplace, and is paid the retribution lost during the dismissal period (in truth, such sanction exists for all null and void dismissals, regardless of the number of employees);

• Employment Law • Focus 2 • Firm Cases 4 • Civil Law, Commercial, Insurance • Information brief 5 • Contacts 7




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b) where the wrongdoing alleged is non-existent or the wrongdoing falls inside acts punishable by nondismissal sanctions provided for by collective accords or by the disciplinary code, the Judge rules for reinstatement and an indemnity not exceeding 12 months; c) in other scenarios where just cause or objective motives do not come into play the Judge sentences the employer to the payment of an indemnity ranging anywhere between 12 and 24 months retribution; d) should the dismissal be declared without efficacy for being in breach of art. 7 of the Statute of Workers, the Judge sentences the employer to an indemnity between 6 and 12 months retribution, save where suspicion of one of the scenarios mentioned above lingers. for objective motives (organizational or economic motives) in enterprises of more than 15 employees the picture is more complex. The operation must follow a procedure in front of the Labour Bureau of the district; should the dismissal be declared illegitimate, the Judge shall condemn the employer to a) reinstatement inclusive of a maximum indemnity of 12 months retribution where it is clear that the dismissal is groundless; b) in the other cases where objective motives are unnecessary, the employer is sentenced to payment of a minimum of 12 months and a maximum of 24 months. dismissals feature new points: a) where irregularities occur in the procedure to communicate the idling scheme, an accord with the unions may resolve the issue; b) communication of the collective dismissals may be executed inside 7 days from the date as at art. 4, §9 Act #223/91; c) from 1 January 2013, the idling ("mobility") agency shall cease and shall be replaced by local public service Authorities; d) a diversity of scenarios apply where dismissals are illegitimate and depending on the type of termination directed by the employer within the ambit of a flawed collective dismissal procedure: 1) from failure to communicate in writing: 2) breach of procedure provided under art. 4 Act #223/91 or 3) breach of the selection criteria provided at law or by collective accord. new employment law process provides for a special shorter procedure, exclusively for disputes regarding the impugnation of the dismissal in the matters subject to art. 18 of the Statute of Workers and subsequent modifications. and terminations by mutual consent with female employees expecting or the mother or the father in the first 3 years of the new born shall be validated by the Inspectorate of the Ministry of Labour, while all resignations and terminations by mutual consent not related to the above matters shall have to be nonetheless validated by the Provincial Bureau of Labour or by the territorial labour agency of competence or at the location defined by collective agreements.




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FIRM CASES Ruling of the Month

The Court of Appeal of Milan dismissed the recourse of a fired employee on the ground of a penal sentence based on a plea bargaining, whereby said employee had been condemned for having stolen ten pairs of women shoes after breaking with a forged key and entering, and with the aggravating circumstance of having resorted to violence on things (breaking the wardrobe). The Court, confirmed the usability of the plea bargaining also in civil action, as well as the legitimacy of the invitation, contained in the claim, to render justifications in defence "(…) also by fax (…)" without the express indication of the possibility to render justifications orally, and, lastly, pointed out the congruence of the period of time of 4 months lapsed between the final ruling and the recourse, also in light of the indisputable and inevitable investigative and valuating stage on the side of the employer. (Counsels: Anna Maria Corna and Carlo Uccella)

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By Andrea Beretta
The Official Gazette 31 May 2012, n° 126, has published the two legislative decrees that came into force on 1 June 2012 and incorporate Directive 2009/136/EC (regarding the treatment of personal data and the protection of privacy) and 2009/140/EC (regarding electronic communication networks and services). The provisions provide as follows:
✦Legislative Decree 28 May 2012 #69, which modifies the privacy code (Legislative Decree 196/2003); ✦Legislative

Decree 28 May 2012 #70, which modifies Legislative Decree 1 August 2003 #259, regulating electronic communication.

The objective of such incorporations is to better protect consumers against access to personal information and so-called spam (the sending of unsolicited messages), and with a view to consolidate the privacy of European citizens. The main new points are essentially concerned with the suppliers of electronic communication services: A) All people who operate in electronic communication networks must guarantee that personal data are accessible solely to the personnel expressly authorized, and for scopes authorized at law. B) In case of breach of personal data by suppliers of electronic communication services, the latter shall have to provide apposite communication to the privacy watchdog agency. Should such breach prove thereafter injurious to the personal data or to the privacy of the party to the contract or to other persons, the supplier shall communicate the said breach, also to the said parties, without delay. The communication is unnecessary, instead, where the supplier can prove to the privacy watchdog that he used such technology systems as ensure protection by making data illegible to any person not authorized to access them. C) The watchdog Authority may issue its own ordnances, guidelines and instructions in relation to the circumstances in which the supplier is under duty bound to communicate the breach of personal data, and to lay down the practical steps of such communication. D) The supplier of electronic communication services shall draw up an inventory, regularly updated of the breach of personal data, mentioning the circumstances where the breaches occurred, their consequences and the measures adopted to speedily remedy the problem, so as to enable the Authority to verify compliance with the new provisions on the subject matter. E) Lastly, a number of special administrative and penal sanctions have been set forth against suppliers of electronic communication services - accessible to the public - who violate the new standards.

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By Vittorio Provera

The use of CCTV at the workplace is an issue that has often come to the attention of the courts, caught between the interests of the employer on the one hand and the right of workers to privacy, on the other hand. Art. 4 of the Statute of Workers bars the installation and the use of cctv designed to monitor the activity of workers. Indeed, the employer may not collect the opinions of the employees, nor control their productivity and use such data for the eventuality of dismissal. Still, Art. 4, §2 of the Statute of Workers, taking also in consideration the interests of the employer, provides that control equipment made necessary for productive and organizational exigencies or to ensure workplace safety and which may also require remote monitoring of workers' activities, may yet bye installed. provided an accord on the issue has been reached with the unions or, failing those, with the in-house commission. Absent such accord, it is necessary for the enterprise to turn to the Labour Inspectorate to obtain the necessary authorization and mode of use of the installation. The provision mentioned thus intends to protect the employees against concealed forms of control of their activity by the employer. Yet, where motives of production make it necessary to install surveillance systems, the risk of injuring the privacy and dignity of the worker is put aside in presence of a consensus of representatives bodies of the branch of activity. On such a legal backdrop, (by now, in our view, grown obsolete also because of the proliferation of internal and external CCTVs, and of the generalisation of corporate computer networks), it is worth examining a recent sentence of the Court of Cassation 22611, 11 June 2012, handed down after the recourse of an employer against a sentence that held him responsible for breach of art. 4, of the Statute of Workers. According to the judge on the merit, the company had had a system of 4 CCTVs installed, two of which framing directly the fixed workplaces occupied by employees, without the consent of committee of union representatives. In the case at hand, however, the installation of a CCTV system had previously received the written assent of all the employees. Despite the existence of such authorizing document, the ruling impugned still held that art. 4 of the Statute of Workers had been violated. The Judges of the Court of Cassation, after reaffirming that protection of workers' privacy is entrenched in Art. 4 of the Statute of Workers by means of the consent of the committee of union representatives or by the in-house commission, rightfully held that, in the case at hand, the assent expressed by all the respective employees could validly replace the provision at art. 4 of the Statute of Workers, insofar as it could not be legally invalidated as clear and unequivocal expression of all the workers.

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Moreover, it was amply proved that the employees had full knowledge of the CCTV system at the workplace and that apposite informative signage made the point clear.

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N°59 June 2012


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