newsletter t&p n°55 eng

8/2/2019 Newsletter T&P N55 Eng

1/7

Editorial The year has barely started and it is already hammering out other

employment law innovations, now looming in the offing.

In the wake of the financial rescue package of last year and the one on

liberalization early this year, our Focus feature covers the main changeslisted for labour market simplification in the Bye law 9 February

2012, particularly with regard to joint responsibility in tender operations,

which has been expressly extended to the quota of accrued salary on

employment termination indemnity (TFR) and to insurance premiums

coming to maturity in the course of the execution of the tender contract.

With respect to court practice, our readers will be interested by a recent

decision of the Tribunal of Milan on transfer of undertakings on the

ground of just cause within the ambit of temp working, which falls inside

the now consolidated contours of the necessity to thoroughly assess all

requisites, inclusive of dismissal.

The FQA, this month deals with the pension reform and its impact on

dismissal of workers being eligible for retirement.

Our Civil Law section goes back on the financial rescue package and, in

particular, on the expectations that attribute and/or bolster the powers of

the on the Market and Fair Competition Authority and yet again on tender

contracts with a sentence on the proof o the contract. The Insurance

section lines up a number of decisions on legitimacy and merit. The FAQ

this month answer to the request on when somebody else trademarkmay be used on spare parts.

Our Information Brief deals this time around with the responsibility as

offender of legal entities pursuant to bye law #231/2001 and to the

possibility of determine, in case of ascertainment of responsibility by the

body involved, and upon passing of the sentence, of the quantum of the

profit of the offence.

We do not doubt you'll find the reading enriching!

Marina Tona and the editorial staff: Francesco Autelitano, StefanoBeretta, Antonio Cazzella, Teresa Cofano, Luca DArco, Diego

Meucci, Claudio Ponari, Vittorio Provera, Tommaso Targa, Stefano

Trifir and Giovanna Vaglio Bianco

Employment Law

Focus 2

Firm Cases 3

Civil Law,

Commercial,

Insurance

Information brief 6

Contacts 7


2/7N55 February 2012 2

THE BYE LAW ON SIMPLIFICATION

AND CHANGES IN EMPLOYMENT LAWBy Luca DArco

Bye law on simplification #5, February 2012, published on the Official Gazette of the same day has been

recently approved.

The Bye law contains a number of modifications, among which, art. 29 of the Biagi reform, which lays

down under 2 that "in case of contracting out of works or services the contractee or employer is underduty jointly with the contractor, and in the event, with each of the sub-contractors within the limits of two

years from termination of the contract, to pay the workers the retributions, inclusive of the accrued salaryon employment termination indemnity (TFR), and the social security contributions and the insurance

premiums owed in relation to the period of execution of the tender contract, without prejudice for any

obligation of civil sanction which still falls under the single responsibility of the non-performer".

It is thus made clear that joint responsibility is extended to TFR and to the social security indemnities of

the National Institute for Insurance on Industrial Hazards (INAIL) accrued during the period of execution

of the contract, whilst joint responsibility is excluded for subject matters pertaining to civil cases, in

contrast with the interpretation issued by the Ministry of Labour in an answer to objection #3/2010.

Modification of art. 17 of the bye law #151/2001, 2 attributes to the sole responsibility of the Local

Health authority the whole procedure of anticipated work of the working mother - inclusive of theadoption of the final decision of interdiction that fell until now under the competence of the Presidential

Decree - where there exist "serious complications of persistent forms of disease".

Investigation and adoption of measures of interdiction remain under the competence of the presidential

Decree in cases where health and safety requisites pit at risk the working female mother or the child or

where there is impossibility to reassign to another work position.

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Ruling of the MonthTRANSFER OF UNDERTAKINGS

The subject matter has pursuant to art. 2112, civil code also applies where transfer of

undertakings includes workers but not machinery, as transfer of undertakings is legitimate, made

up of an organized group of workers also where cession does not involve material assets.

(Tribunal of Milan, 9 February 2012)

Some workers took action in front of the employment tribunal against a company who had been their

former employer, claiming that the transfer of the employment contact to other companies to which they

had been transferred to ceded branches of the undertaking, was illegitimate.

FIRM CASES
http://www.trifiro.it/http://www.trifiro.it/http://www.lavoro.gov.it/Lavoro/Notizie/20120216_DL_5_Circ_2.htmhttp://www.lavoro.gov.it/Lavoro/Notizie/20120216_DL_5_Circ_2.htm



In particular, the petitioners, questioned the alleged reason of their placement in the branch

subsequently transferred, claiming that such branch of business was extraneous to the tasks they had

carried out. The ceding company counter-claimed, affirming the legitimacy of the cession and theindependence and functionality of the division transferred.

The Judge not only held that the tasks carried out by the workers were "appropriate and in the nature of

their abilities", within the ambit of the corporate organization and the branch of the business to which

they are subsequently transferred, but also pointed out how such posting had taken place well ahead

(nearly four years) of the cession, so much so that by no means whatsoever the ceding company could

have been suspected of any fraudulent intent. In addition, mentioning consolidated judge-made law in

matters of transfer of undertakings known as labour intensive, the Judge noticed that even wherever

machine tools were not ceded to the transferred branch - something which, in the case on hand, was

held by the Judge to have indeed occurred - the cession of the branch of business at issue would have

been carried out in any event according to due procedure, under art. 2112, civil code, insofar as itssubject matter was an entity made up of employees organized and possessed with specific

qualifications in light of such considerations, the Judge rejected the claim of the petitioners.

(Counsels: Claudio Ponari and Veronica Rigoni)

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INTERIM RELIEF, TERMINATION FOR JUST CAUSE UNDER ART. 2119, CIVIL CODE(Ordinance of the Tribunal of Matera, 13 January 2012)

In line with increasingly prevalent court practice, though not uniformly followed, the Employment Tribunal

of Milan affirmed the principle whereby the substantial period of time lapsed between employment

termination and the proposition for interim relief (five months) excluded in itself the permanence of a

situation connotative of the urgency of the decision made to ward off a serious and irreparable hazard.

The Tribunal, in particular, pointed out that this applies to employment cases, where a significantly

smooth procedure is already in place to proceed to a swift examination of the objectively sensitive

situation to protect the employee himself as the weaker party in the employment transaction for

permanent contract. Significantly, the Tribunal added that not every dismissal, not every posting, not

every assignment of new tasks may justify interim relief. I such were the case, one would have to hold

that for such issues subject to controversy the serious, imminent and irreparable prejudice interim, relief

would automatically be triggered, owing to the matter under examination, and as the inevitable

consequence admissible of the interim decision, in pursuance of art. 700 of the code of civil procedure

as alternative form of judicial protection and having the characteristics of a fast-track procedure.

(Counsel: Luca Peron)

Other Rulings
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FAQ'sDoes the pension reform have an impact on the dismissal of employees eligible forpreretirement?

The reform of the pension system has somehow a direct and immediate impact on the possibility to

terminate employment at will, as against the previous system for workers that met the requisites for

retirement.

More to the point, such scheme was initially subject to art. 4 2, Act #108 of 11 May 1990.

Subsequent Act #247, 24 December 2007, set forth that at will dismissal had to be differed according to

the sliding rate of maturity required for eligibility to seniority pension benefits, from the moment of theeffective opening of the window of opportunity to access pension.

Today, art. 24 4, bye law #201, 6/12/2011, (Monti decree) states that the provisions as at art. 18, Act

#300, 20 May 1970, (the Statute of Workers) will remain in place until employees reach the age of 70.

Owing the express applicability of art. 18, Act #300, 20 May 1970, until employees reach the age of 70,

the employer may not use the right to employment termination on his own initiative (before the employee

reaches the age of 70) regardless of the maturity of the requisites for seniority.

COURT OF CASSATION NEWSLINEBy Stefano Beretta and Antonio Cazzella

DISMISSAL LEGITIMATE WHERE EMAIL SCRUTINY UNCOVERS DISSEMINATION OF

CONFIDENTIAL NEWS

Sentence #2722, 23 February 2012, of the Court of Cassation held as legitimate the dismissal of an

employee on the ground of collecting for surveillance without accord and foretelling his email post.

The Court held that control of the email of the employee did not contrast with art. 4 of the Statute of

Workers where the scope was to ascertain after the facts that a conduct in breach of the fundamentalobligations of trust and confidentiality had been violated. The Court stated that- upon the surfacing of

factual elements that called for an investigation of things past - the defensive control did not concern

solely the obligations flowing from the nature of the employment contract, but that it was to examine a

conduct that put at risk the very image of the company.

SENDING TO THE EMPLOYER A LETTER LISTING UNFOUNDED ACCUSATIONS DOES NOT

QUALIFY AS JUST CAUSE FOR DISMISSAL

Sentence #2316, 17 February 2012, of the Court of Cassation found as disproportionate the dismissal

of a female employee who had sent her employer a letter fraught with grave accusations, whichthereafter proved unfounded the course of the hearing, the Court pointed out that the facts were not

defamatory and that, in weighing the interests at stake, the freedom of speech of the employee prevailed

over the exigencies to protect the chain of command existing in the company.



EMPLOYEE MUST BE REMUNERATED FOR TIME NEEDED TO PU ON OUTFIT AND SAFETY

FIXINGS

Sentence #1817, 8 February 2012, of the Court of Cassation laid down that the company must

remunerate the worker for the time used to pit on the working outfit and the other safety fixings, insofar

as during that period of time the employer remains under the executive power of the employer. The latter

could be subject to disciplinary sanctions for bob conformance with the above-mentioned decision.

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Civil, Commercial,

Insurance Law

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INFORMATION BRIEFBy Vittorio Provera

COMPANY RESPONSIBILITY AND FREEZING OF

PROFITS

A little more than ten years ago the notion of the responsibility of legal persons, such as a corporations or a

bank, was put in place It occurred in the wake of a complex case that ended up in court and where it was

found that the derivate scheme set in motion benefited from the complicity or of the connivance of a number of

people that under art. 19 2 Legislative Decree 231/2001, the court had ordered the freezing of62m of thebank, in addition to the legal interests tied to the date of approval of the 2006 financial statement, date on which

the final withdrawal had been made.

The decision was criticized to the extent that the frozen money was part of the assets of the bank, even if there

had been no proper proof of the potential non-disclosure of the risks tied to the derivate schemes. In the case

on hand, the Tribunal of Milan directed the confiscation of a quantum amounting to the sum of money which,

according to ascertainment conducted by public prosecutor-appointed experts, calculations by the stock

exchange watchdog (CONSOB) and by the Bank of Italy would have been been available through fraudulent

misinformation.

It also emerged that the bank had totally miscalculated in its 2006 financial statement (the year of the case

prosecuted) the risks faced by credit apportioned and that such gross errors flowed from the high-risk derivative

speculations.

As it was proven that the risk, that had been concealed as normal forms of leasing, had severely distorted the

2006 financial statement, this allowed the bank to acquire such utility assets as the law required.

Credit products were subsequently devalued as the bank had to write off a 62m outlay. The bank was

however authorized to post profits higher than those she would have presumably registered, if the rectification

had been conducted in congruent manner (on the basis of the knowledge available at the time of the approval

of the financial statement).



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

Genoa

16121 Genova

Piazza della Vittoria, 12

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

Turin10121 Torino

Via Raimondo Montecuccoli, 9

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

Trento

38122 Trento

Via Galileo Galilei, 24

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

www.trifiro.it

[email protected]

@TrifiroPartners
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newsletter t&p n°55 eng

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