Newsletter T&P 59 Eng

7/31/2019 Newsletter T&P 59 Eng

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EditorialEmployment Law ReformBy Stefano Trifir and Luca DArco

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 reformto be known as "Reform in progress".

Here following are the main points of the reform.

Fix-term 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.

Contracts 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 thosedischarged by dependents of the principal.

Apprenticeship 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.

In 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
http://www.lavoro.gov.it/Lavoro/PrimoPiano/20120627_riforma_mercato_lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120627_riforma_mercato_lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120627_riforma_mercato_lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120627_riforma_mercato_lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120627_riforma_mercato_lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120627_riforma_mercato_lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120627_riforma_mercato_lavoro.htm


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b) where the wrongdoing alleged is non-existent or the wrongdoing falls inside acts punishable by non-

dismissal 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 ranginganywhere 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.

Dismissals 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.Collective 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.

The new employment law process provides for a special shorter procedure, exclusively for disputesregarding the impugnation of the dismissal in the matters subject to art. 18 of the Statute of Workers and

subsequent modifications.

Resignations 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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Ruling of the MonthPLEA BARGAIN SENTENCE AND USABILITY IN EMPLOYMENT DISPUTE

(Court of Appeal, 11 June 2012)

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 inthe 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)

FIRM CASES

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CIVIL, COMMERCIAL,

INSURANCE LAW

www.trifiro.it

PRIVACY AND ELECTRONIC

COMMUNICATION

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 shallcommunicate 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.
http://www.gazzettaufficiale.it/guridb/dispatcher?service=1&datagu=2012-05-31&task=sommario&numgu=126&tmstp=1340543792276http://www.gazzettaufficiale.it/guridb/dispatcher?service=1&datagu=2012-05-31&task=sommario&numgu=126&tmstp=1340543792276http://www.gazzettaufficiale.it/guridb/dispatcher?service=1&datagu=2012-05-31&task=sommario&numgu=126&tmstp=1340543792276http://www.gazzettaufficiale.it/guridb/dispatcher?service=1&datagu=2012-05-31&task=sommario&numgu=126&tmstp=1340543792276http://www.trifiro.it/http://www.trifiro.it/


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INFORMATION BRIEFBy Vittorio Provera

CCTV AT THE WORKPLACE ABSENT ACCORD

WITH UNIONS

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 ofworkers. 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 thejudge 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 couldvalidly 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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ContactsMilan

20122 Milano

Via San Barnaba, 32

Tel.: + 39 02 55 00 11Fax.: + 39 02 54 60 391;+ 39 02 55 185 052;+ 39 02 55 013 295

Rome

00195 Roma

Piazza Giuseppe Mazzini, 27

Tel.: + 39 06 3204744;+ 39 06 37351176Fax.: + 39 06 36000362

Turin

10121 Torino

Via Raimondo Montecuccoli, 9

Tel.: + 39 011 52 10 266Fax.: + 39 011 51 19 137

Trento

38122 TrentoVia Galileo Galilei, 24

Tel.: + 39 0461 26 06 37Fax.: + 39 0461 26 44 41

www.trifiro.it

[email protected]

@TrifiroPartners
http://trifiro.info/contatti/trento/http://trifiro.info/contatti/trento/http://trifiro.info/contatti/torino/http://trifiro.info/contatti/roma/http://trifiro.info/contatti/roma/http://twitter.com/TrifiroPartnershttp://twitter.com/TrifiroPartnersmailto:[email protected]:[email protected]://www.trifiro.it/http://www.trifiro.it/http://trifiro.info/contatti/trento/http://trifiro.info/contatti/trento/http://trifiro.info/contatti/torino/http://trifiro.info/contatti/torino/http://trifiro.info/contatti/roma/http://trifiro.info/contatti/roma/http://trifiro.info/contatti/milano/http://trifiro.info/contatti/milano/

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Newsletter T&P 59 Eng