newsletter t&p 60 eng

7/31/2019 Newsletter T&P 60 Eng

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EditorialEmployment Law Reform. First

clarifications on Act #92, 28

June 2012

By Luca DArco

The reform of the labour market (known as Fornero Reform) came

into effect on 18 July 2012.

The same day, the Ministry of Labour and Social Policies issued circular n

18/2012, which provides the first clarifications on Act 28 June 2012 #92,

regarding the modifications made to some types of employment contracts.

The bounds of the circular, which we shall examine in this article, convey

clearly the notion that the Ministry shall soon come up with another circular

providing its own indications and interpretations on the issues not dealt with

yet and, in particular, with respect to rules concerning dismissals.

As regards the newly introduced possibility to underwrite a fix-term

employment contract without specifying the reasons (technical,

organizational, productive or for replacement), solely in case of the first fix-

term employment contract and for the purpose of discharging any type ofremit, the Ministry clarified that the aim of such innovation is to enable a

better assessment of the professional aptitudes and capacities of the

employee.

Hence, it would not be possible to hire on a fix-term employment contract

without indication of motive pursuant to art. 1 of the Legislative Decree

#368/2001 an employee who has previously worked for the same employer

under a permanent employment contract thereafter terminated.

The Ministry also pointed out how the maximum duration of 12 months

provided at law may not be broken up in separate periods, nor may the fix-

term contract under the new legal system be extended, not even where the

initial duration of the same were inferior to 12 months (that is, where

extension were to extend the contract to 12 months after the facts).

Employment Law

Focus 2

Faq 4

Civil Law,

Commercial,

Insurance

Focus 5

Contacts 6
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The same circular also clarifies that fix-term contract with motives are subject to provisions as at art. 5,

2 of the Legislative Decree #368/2001 (itself, incidentally, modified by the Fornero Reform), whereby an

overshoot of 30 or 50 days (depending on whether the employment contract is superior or inferior to 6

months) makes automatically the employment contract a permanent one.

The Ministry also comments on the newly introduced possibility for collective bargains to insert

provisions in derogation (to the necessity to specify reasons or motive), underscoring the fact that such

possibility is granted to enterprise agreements solely where an express authorization to that effect is

included in the collective agreement underwritten by the parties of that branch of industry at national

level.

Lastly, with respect to the 36 months ceiling, the Ministry pointed out how in the computing of the

relationships of a fix-term contract and between the same subjects, for the discharge of equivalent

tasks, the periods of work performed under the status of work on supply that may have existed between

the same employee and the employer are to be computed as integral part.

However, it has been made clear that to compute said limit only contracts of work on supply entered into

subsequently to the 18/7/2012 shall be included and that, most importantly, the 36-month limit applies

only to fix-term employment contracts, with the consequence that in theory it would be possible to

resort to supply labour "with the same employee also subsequently to the reaching 36 months".

As regards, apprenticeship, the same circular focuses exclusively on the obligations of stabilization for

the scope of the possibility to bring about new hires in apprenticeship.

The Ministry reaffirms that the new legislation - which lays down the obligation to stabilize 50% (30%

until 15/7/2015) of the apprentices in the course of the 36-day period of recess from the new hire under

such form of contract applies only to employers who have a workforce of at least 10 persons, while for

those who have an inferior number of employees, the limit applicable should be, in any event, the one

set for the collective accords. It is worth bearing in mind that failure to stabilize the percentage of

apprentices as set forth at law triggers the mutation into permanent employment contract from the date

of the underwriting of the apprenticeship contract.

The Ministry of Labour also provided practical instructions regarding intermittent labour.

In particular, it is reaffirmed how since 18/7/2012 and owing to the supervening numbers of abrogation it

is no longer possible to underwrite new intermittent work contracts under the terms of the previous

legislation. This applies to weekend performance, or tasks discharged during summer holidays, Easter or

Christmas, or in such divers periods as are set out by collective agreements.

By the same token, since 18/7/2012, such type of employment contracts may no longer apply to

persons under 25 years of age or over 45 years of age, but to persons aged up to 24 and over 55.

After the lapse of 12 months from said date, all intermittent contracts entered into before the coming into

force of the new Fornero Reform, where incompatible with the new legislation, shall cease to have

efficacy and any such performance as shall be discharged in violation of the interdiction shall be viewed

as black economy.

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The Ministry also provided practical indications as to the new obligation to communicate contracts,

introduced by lawmakers, specifying that compliance shall take place - pending characterizations

by apposite ministerial decree of the divers and simplified modes - by way of "emails also notcertified and faxes addressed to the Territorial Bureau of Labour as found on the website of the

Ministrymentioning without specific formalities the particulars of the employee and the day or days".

Communication may be cancelled or modified at any time before the start of the employee's remit.

Absent any modification or cancellation of the communication and the employee already into the

remit mentioned, the Ministry shall view the performance started as from the days mentioned

inclusive of all such obligations in terms of retribution and contribution as follow.

As regards ancillary work, the circular n 18/2012 of the Ministry stresses how the new legislation

has, on the one hand, streamlined the general legal framework (by eliminating objective and

subjective motives that justified recourse to such type of work), and, on the other hand, has furtherlimited the bounds inside which such type of contractual employment may be used.

As regards the occupation of disabled persons, the Ministry points out the importance of the new

legislation which removes from the number of persons not computed as part of the workforce of the

enterprise the employees under fix-term contracts not superior to 9 months.

Lawmakers are currently discussing the possibility to reintroduce - by amending Act #92/2012 - the

exclusion from computing into the workforce such compulsory hires as are under fix-term status,

provided they are not superior in duration to 6 months.

Such piece of legislation and others, which are expected to be crafted by lawmakers in what isalready called a maxi-amendment, will be examined in our subsequent newsletters.

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FAQCan the employer conduct an investigation to verify whether a wrongful conduct

subject to disciplinary action has occurred?

It is often asked whether an employer may conduct a preliminary investigation to collect

evidence that may prove wrongful conduct subject to disciplinary action and help identify the

wrongdoer.

As regards such investigations, it is to be noted that they are likely to prove illegal and qualifyin general as a form of unlawful control of the work of the employee under art. 4 of the

Statute of Workers, and likely to injure the liberty and dignity of the worker, and could also

bring about, though in an indirect manner, to a disciplinary action by the employer.

From that standpoint, illustrated, besides, by a number of rulings on the merit, the

admissibility of preliminary investigations would not be acceptable insofar as they would be in

contrast with the rationale of labour legislation, which calls for an immediate and specific

grievance without having recourse to unilateral forms of control by the employer.

From a different point of view, supported by more recent court practice confirmed by the

Court of Cassation, said investigations should, instead, be viewed as lawful, and do not

implicate art. 4 of the Statute of Workers, which concerns only controls affecting directly the

work of employees and not controls aimed at ascertaining possible wrongful conduct of the

worker.

In any event, it is opportune to verify whether there are contractual provisions and/or

regulations that address the subject matter, setting forth specific rules. It also remains

obvious that, where preliminary investigations evidence the presence of a disciplinary breach

or wrongful act, the employer, at the close of investigation, shall duly proceed to the

expression of grievances, with possibility for the employee accused to defend himself also

with the assistance of the union representatives.
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CIVIL, COMMERCIAL,

INSURANCE LAW

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MODIFICATIONS TO THE BANKRUPTCY ACT

By Mario Gatti

The Official Gazette dated 26 June 2012 n 147, published Law Decree #83, 22 June 2012, titled

"Urgent measures for growth in Italy".

Among other things, the Decree features some important changes to the Bankruptcy Act, designed to

improve the efficiency of settlement solutions for struggling companies and to facilitate continuity of

enterprises as going concerns.

In particular, art. 33, 1, letter e) of the Decree regulates settlements for debt rescheduling, modifying art. 182

bis of the Bankruptcy Act.

The entrepreneur of the ailing company may ask, by submitting the documentation requested for the

admission to the procedure for composition with creditors, the official approval of a restructuring plan of the

debt, underwritten with creditors representing at least 60% of the payables, jointly with a report drawn up by

an expert (in possession of the requisites at law), on the authenticity of the company records and figures and

on the feasibility of the agreement itself, in particular with regard to the capacity to ensure full payment of

foreign creditors, and in the respect of the following terms:

inside 120 days of the official approval, in case of payables already overdue at that date

inside 120 days to date due, in case of payables not yet overdue at the date of the official approval.

From the date of the publication of the debt rescheduling agreement and for 60 days, creditors by title and

causes prior to such date may not acquire preference titles unless arranged by agreement.

With regards to the continuity of the enterprise, pursuant to art. 33 1, letter f) of the decree - which has

introduced art. 182 quinques of the Bankruptcy Act -, the debtor who submits a request for composition

with creditors or asks official approval of an accord for debt rescheduling may request the tribunal to to be

authorized, and on the basis of base information, to enter into funds, pre-deductible, if a professional

appointed by the debtor, once verified the overall quantum of monies required by the enterprise until the

official approval, proves that such funds are instrumental to the better servicing of creditors.

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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

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[email protected]

Twitter @TrifiroPartners
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