newsletter t&p n°35 eng

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT

Editorial

NEWSLETTER T&P N°35 YEAR IV APRIL 2010

NEWSLETTERTrifirò & Partners Law Firm

CONTENTS

✦ EDITORIAL

✦ EMPLOYMENT LAW

✦ FOCUS 2

✦ FIRM CASES 4

✦ CIVIL LAW, COMMERCIAL,INSURANCE

✦ INFORMATION BRIEF 6 ✦ EVENTS 8

✦ CONTACTS 9

The March issue of our newsletter had mentioned the approval by the Senate of the new employment provisions attached to the budget for 2010 which feature a number of substantial innovations and, in particular, provided for conciliatory and arbitration avenues in alternative to resolving disputes in front of a court. We had also, however, hinted at the fact that the president of the Republic was having second thoughts and seemed in no hurry to sign the provisions. Indeed, as our “Focus” feature in the Employmen Law section of our newsletter illustrates, the President not only refused to ratify the new provisions but decided to send them back to Parliament with a motivation invoking art. 74 of the Constitution. In Particular, the President of the Republic, raises the very issue of “alternative” procedures for employment dispute resolution. Our partner Giacinto Favalli reports on the situation and examines the options that lie open for Parliament to come out of the impasse at the earliest.

It so happens that our “Ruling of the Month” reports on a recourse against a disciplinary decision submitted to the Board of Arbitration pursuant to art. 7 of the Statute of Workers, which precludes any subsequent action in front of an employment tribunal. The issue of the application of the former avenue of dispute resolution by arbitration takes on greater relevance in light of the new procedure set forth in the new provisions to be revised by Parliament.

Our feature dedicated to “Other Rulings” examines two sentences that emphasize, respectively, the importance of the will of the party in the qualification of the nature of the employment relationship in the profession of journalist and the characteristics peculiar to that relationship in that profession. The section features also two dismissal cases that seem wide apart but that both raise the issue of diligence and loyalty on the part of contract workers at any level.

The “Information Brief” by Vittorio Provera examines the vexing question of remote surveillance, in light of a recent communication released by the Ministry of Labour.

Last but not least, our firm played host in Rome to the annual forum of Plurijus, the network of affiliated European law firms to which we belong as charter members. In spite of the grounding of air traffic during the period of the meeting, the gathering proved a rousing success. Our Events section features a report on the tenor of the forum. 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: [email protected] or [email protected]

http://www.trifiro.it


http://www.trifiro.it/newsletter/download/50_inglese.pdf

http://www.trifiro.it/newsletter/download/50_inglese.pdf

mailto:[email protected]





FocusBy Giacinto Favalli

PARLIAMENT NEEDS TO REWRITE BILL ON ARBITRATION OF EMPLOYMENT DISPUTES

The President of the Republic finally refused to sign the new provisions attached to the budget for 2010 which introduced signal changes in the manners – both legal and extra-legal - to resolve labour disputes.

Invoking §1 of art. 74 of the Constitution, the President sent the Bill back to Parliament for revision.

In his message to the Chamber of Deputies, the President strongly criticized the “blatantly heterogeneous framework of the bill” (which indeed covers a range of disparate issues), and stressed the fact that such manner of crafting laws could more often than not generate negative effects as to the overall intelligibility and comprehension of the bill and as to the overall homogeneity of the regulatory framework.

After this preamble, the President swiftly came to the crux of the matter, namely the import of art. 31 of the new bill titled “conciliation nd arbitration”, which touched off a furious debate between the first commentators.

What caused a good deal of perplexity and proved highly controversial was not so much the fleshing out of arbitration and the encouragement to opt for such avenue to labour dispute resolution as the mode and manner such alternative was crafted by lawmakers.

✦The President noted firstly that “it is necessary to verify whether the provisions are fully consistent with the voluntary nature of

arbitration and the necessity to ensure proper protection to the weaker party”.

This necessity is rendered even more manifest at the stage of drawing up the employment contract where “the condition of weakness of the party offering to perform labour is at its maximum”.

The point raised by the President of the Republic re fe rs spec i fica l l y to the conce r ns o f commentators over §9 of art. 31 of the bill which provided that arbitration procedures could be adopted not only in the course of an employment contract but could also be the subject of an arbitration clause for dispute resolution inserted in the terms of the employment contract to be underwritten.

Well-meaning invocations in the bill to the respect of the general principles of the legal system fell short of avoiding the risk of seeing a number of rights curtailed, save those enshrined in the Constitution.

The perplexity over §9 of art. 31 led to the subsequent approval of an amendment submitted by the bill's rapporteur that reads as follows: “The arbitral clause may not concern disputes regarding the termination of the employment contract. In front of the certification commissions the parties may be assisted by a counsel of their own choos ing or by a un ion or t rade representative to whom they shall have given mandate. Absent inter-union accords or collective agreements pertaining to the application of arbitration by way of arbitral clauses after a lapse of twelve months from the coming into force of the present law, the Ministry of Labour and Social Policies shall convoke the more comparatively representative employers’associations and workers unions, in order to promote an accord. In the event such accord should not be reached within six months from the date of convocation,

NEWSLETTER T&P N°35 YEAR IV PAGE 2

Employment Law




the Ministry of Labour and Social Policies shall provide as experiment, bi issuing its own decree (…) to the full implementation of the provisions of the aforesaid §9”.

The bill is unlikely to surmount obstacles if it hopes again to achieve its original aim by merely rewording limbs of phrases and introducing ephemeral consultative stages alongside a preordained procedure. The centre-left minority in Parliament, emboldened by the President’s rejection of the bill, will use any trick to stall the project.





Firm CasesNEWSLETTER T&P N°35 YEAR IV PAGE 4

RULING OF THE MONTH

OPTING FOR ARBITRAL PROCEDURE PRECLUDES SUBSEQUENT RECOURSE TO EMPLOYMENT TRIBUNAL(Tribunal of Milan, 28 December 2009)

It is infrequent for an employee to have recourse, pursuant to art. 7, §VI of the Statute of Workers, to an arbitration procedure in an action against disciplinary sanctions. Once such procedure is initiated with the appointment of the arbitrators, no request from one of the parties to bring action in front of a court of justice may be accepted, save where both parties agree upon said legal action. The Tribunal of Milan gave this motivation to declare non-admissible the recourse to legal action submitted by an employee who had first opted for the procedure pursuant to art. 7, §VI of the Statute of Workers in front of the Board of Conciliation and Arbitration and had then changed his mind and informed the said Board that he wanted to change “strategy” and put his claim in front of an employment tribunal. The Tribunal found in favour of our plea and held that the worker – after due constitution of the board of arbitration – could not go back on his first option on the noted principal that “When there is concurrence of means, he who has chosen one cannot have recourse to another” (an issue that takes on even more relevance at the very time when arbitration of labour disputes is at the centre of a highly controversial bill).(Counsels: Giacinto Favalli and Angelo Di Gioia)

JOURNALIST EMPLOYMENT CONTRACT - CONTRACT WORK AND PAYROLL CONTRACT - DEFINITIONS✦(Court of Appeal of Milan, 13 April 2010)

The Court of Appeal of Milan struck out an appeal by a journalist who had lost in front of the lower court a petition to recognize the status of permanent employment to his on-contract work, stating that no distinction between dependent employment and on-contract employment could be clearly established unless the respective wills of the parties had been previously ascertained and, in like manner and progressively ascertained, over time, the practical modes of performance of the tasks and, in general, the activating of the relationship.With this regard, the Court added that in the specific case of the profession of journalist, the nature of the dependency takes on a different configuration, owing to the intrinsically intellectual tenor of the performance and must be seen in light of the permanent availability of the employee to follow the specific instructions of the employer; conversely, the relationship qualifies as non-dependent where the contract underwritten – or also any number of similar contracts signed successively over time – provide for a single “supply”, also where staggered over time, with a single retribution.(Counsels: Mario Cammarata and Valentina Ruzzenenti)

OTHER RULINGS




DISMISSAL - VIOLATION OF OBLIGATIONS OF DILIGENCE AND LOYALTY✦(Tribunal of Milan, 31 March 2010)

The employment tribunal of Milan confirmed the legitimacy of a dismissal for just cause of an executive found in breach of the obligations of diligence and loyalty. The defendant, a General Director, had set up companies originally registered under the name of his wife and subsequently under the name of third parties, to underwrite contracts in favour of the said companies, offering unusual discounts and generous payment schedules at the expense of his employer. In addition, the same executive, in the course of a reunion convoked for the scope of clarifying such improper conduct, made in the presence of witnesses insulting and vulgar remarks addressed to the Managing Director, taking advantage of his foreign nationality and of his spotty proficiency in the Italian language.The judge, on the evidence submitted by the company (Chamber of Commerce records, payment schedules and discounts), rejected the recourse of the defendant and sentenced him to payment of legal expenses.(Counsels: Stefano Trifirò and Mariapaola Rovetta)

✦(Tribunal of Brescia, 9 February 2010)

The leaving unattended of a company scooter in the courtyard of an habitation, with the kets inserted in the ignition and the luggage containing company papers left open may be sanctioned by dismissal with cause. So held the Tribunal of Brescia, upholding the legitimacy of the disciplinary dismissal decided by an employer. The Brescia employment tribunal held that that the conduct of the worker, also in view of the tasks ascribed him (as head courier for all correspondence) qualified as serious breach of the obligations of diligence and were sufficient to irreparably break the bond of trust between the parties of the employment contract.(Counsels: Salvatore Trifirò and Angelo Di Gioia)






Information BriefBy Vittorio Provera

REMOTE SURVEILLANCE – QUALIFICATIONS FOR CALL CENTER SERVICES, TELEMARKETING AND OTHER SUCH SERVICES

The spread of systems of communication employed to execute services and activities also of a commercial nature increasingly requires that companies monitor such services (for instance, telemarketing, call centers, etc…). Such monitoring, indeed, does not have the scope of controlling the specific activities of employees.

In such a context, the exigencies of the enterprise must conform with the provisions of art. 4, §2, Act 300/1970 which sets forth that “such control installations and equipment as are required by productive and organizational exigencies or byr workplace safety imperatives but that entail also the possibility to exercise remote surveillance of the activities of the employees, may only be installed upon agreement with the representatives of the unions of the company… Failing such agreement upon request of the employer, the labour inspectorate shall provide…”.

However, on that very point, the General Inspectorate Office of the Ministry of Labour had already specified that automated procedures that enabled to ascribe unit costs of single phone calls to cost centers were not subject to the restrictions and rules set under said art. 4. Moreover, where call costs were attributed to a single person it was necessary to verify on a case-by-case basis whether such procedure authorized an indirect control of the activities of the employee. Such control was excluded insofar as even though the system enabled identification of both the number called and the work station from which that number was called, a degree of rotation of the persons who would access such workstation remained, in such manner as to prevent direct and unequivocal connection between the phone used and the employee.

A recent circular of the Ministry of Labour date 1 March 2010 examines the issue of the installation of control systems that can register the contents of in-coming and out-going calls for the scope of random monitoring of the quality of processes and services providing assistance to clients by telephone.

As regards such systems and the scope for which they are used, the General Direction of the Inspectorate points out that the regulations of the Statute of Workers should not apply where such systems are provided with apposite measures to protect privacy that prevent tracing back the contents of the conversation being monitored neither to the operator nor to the client.

Civil, Commercial and Insurance Law




The protective measures should consist in the encryption of the voices of both client and operator being registered in such manner as to prevent identification of either; in the deletion of the first seconds of the conversation so as to cancel the name of the operator; in excluding any report of information on single operators, or tracks inherent to the name of the operator and any other such data as may lead to identification. Lastly, access to data registered should be limited only to such persons as are authorized to conduct monitoring (for the sole scope of verifying the quality of processes and services providing assistance to clients by telephone).

Provided such cautionary measures are adopted, such companies are not subject to the regulations set forth in the Statute of Workers.






EventsMeeting Plurijus 2010The annual meeting of Plurijus, the network of European legal firms, of which our legal practice is one of the charter members, was held in Rome on April 16 and 17, 2010.

Plurijus groups some of the foremost legal firms in Belgium, Denmark, France, Germany, Ireland, Luxemburg, the Netherlands, Portugal, Spain, Sweden and Great Britain.

Our firm was represented at the meeting by partners Stefano Beretta, Giacinto Favalli, Stefano Trifirò and Luca Peron, from the head office in Milan and by Paolo Zucchinali, Alessandro Sampaolesi and Gaia Vesci from the Rome office.

The forum was dedicated to an in-depth illustration of the new provisions attached to the Ialian budget approved for the year 2010 and to a comparison with foreign legislations on dispute arbitration procedures.

The second part of the programme emphasized the crucial role of co-operation between the divers legal firms affiliated in order to provide clients with finely calibrated services that meet the growing exigencies of large corporations for legal advice on Europe and the world.

Participants also enjoyed to no small degree the tourist programme that took them on a tour of the Eternal City’s landmarks and to the Vatican museum. The next Plurijus meeting will take place in France in May 2011.




TRIFIRÒ & PARTNERS LAW FIRM

Trifirò & Partners has its head office in Milan and branch offices in Rome, Genoa, Turin and Trento. Founded in the sixties by Mr. Salvatore Trifirò, it now numbers 80 professionals and staff-workers coordinated by the Partners.Trifirò & Partners is the foremost firm in Employment Law and it also provides legal assistance in the main areas of Civil Law and, in particular, in Company, Insurance, Commercial, Finance, Industrial and Administrative Law.

The Firm advises major Italian and foreign corporations, and has a network of qualified affiliates firms throughout Italy, Europe, Asia and the United States. It also ensures on-spot assistance through its lawyers everywhere in Italy and abroad.Trifirò & Partners boasts one of the most prestigious legal libraries in paper and in multi-media. The firm is the point of reference for professional training, conference participation, the editing of articles for major newspapers, specialised magazines, publications and books.

DEPARTMENTS:Employment, Agency, Security and Trade-Union

Trading, Industrial, BankruptcyInsurance, Banking, Company, Contract

AdministrativeFamily, Succession

CORRESPONDING FIRMS:Belgium, Denmark, France, Germany, Ireland, Luxembourg, Netherlands, Portugal, Spain, Sweden, UK, China, United Arab Emirates

Milan20122, Via S. Barnaba 32

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

Rome00192, Lungotevere Michelangelo 9

Tel.: + 39 06 32 04 744 Fax.: + 39 06 36 000 362; + 39 06 32 12 849

Genoa16121, Piazza della Vittoria 12

Tel.: + 39 010 58 01 39; + 39 010 56 22 62 Fax.: + 39 010 58 28 71

Turin10121, Via Raimondo Montecuccoli 9

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

Trento38122, Via Galileo Galilei 24

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

[email protected] www.trifiro.it http://twitter.com/TrifiroPartners

Des

ign:

Em

anue

la Z

occh

i







http://twitter.com/TrifiroPartners

http://twitter.com/TrifiroPartners

http://www.emanuelazocchi.com

http://www.emanuelazocchi.com

newsletter t&p n°35 eng

Documents