newsletter t&p n°56 eng

8/2/2019 Newsletter T&P N56 Eng

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EditorialLike the others, the month of March does not fall short of its fair share of

changes in the area ofEmployment Law. On 23 march, indeed, the Council of

Ministers approved- provided approval - the Bill on the Reform of the Labor

Market to Ensure Growth.

The Bill aims to introduce substantial modifications regarding a number of typesand forms of employment contracts (fix-term contracts, internship,

apprenticeship, contracts on project, etc) designed, on the one hand, to

incentivize options for some types of contracts (primarily, apprenticeship) and,

on the other hand, to incentivize options for other types of employment

contracts (as collaboration and on-going contracts and fix-term contracts). As is

well known by now, the Bill also intends to reform the historical article 18 of the

Statute of Workers, the which has been fuelling fierce discontent and

controversies over the last weeks, and to reform the social net and other

standards that protect seniority workers, female workers, the differently abled

and mothers, etc. Our Focus feature outlines the provisions of the Bill and

examines its main points.

From the standpoint to court practice, we publish an interesting and recent

sentence of the Court of Appeal of Cagliari on the controversial issue of

recovery of contribution benefits on Contracts for Vocational Training

(CFL) which are found unlawful by the European Commission. The Court held

that the 5-year statute of limitation laid down by Italian legislation apply. Also, a

decision of the Tribunal of Bergamo, on an all-too disquieting issue, regards the

request for damage compensation for ascertained exposure to

asbestos, and two decisions of the Tribunal of Milan regarding

unjustified absence not falling inside the period of prognosis reported in

the medical certificate, which unjustified facts were ground to determine the

amount of employment termination indemnity of the agency contract.

The Civil. Commercial and Insurance Law section dedicates its Focus on

the new provisions concerning websites exclusively dedicated to health

as published in the Official Gazette n 42, 20 February 2012, and deals with a

recent decision on the issue of an action to set aside. Our Insurance section

includes a number of rulings on the merits .

Our Information Brief examines the Apprenticeship contracts in light of the

recent interventions of the Regions and of collective agreements. Such

form of contract, as would appear from the Bill on labor market reform, is set to

play an increasingly important role.

Marina Tona and the editorial staff: Francesco Autelitano, Stefano

Beretta, 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 4

Civil Law,

Commercial,

Insurance

Information brief 6

Contacts 7
http://www.lavoro.gov.it/Lavoro/PrimoPiano/20120323_Riforma_Mercato_Lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120323_Riforma_Mercato_Lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120323_Riforma_Mercato_Lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120323_Riforma_Mercato_Lavoro.htmhttp://www.lavoro.gov.it/Lavoro/PrimoPiano/20120323_Riforma_Mercato_Lavoro.htm


2/7N56 March 2012 2

THE PROJECT TO REFORM ART. 18

ISDISMISSEDBy Tommaso Targa

The Council of Ministers has approved 23 March 2012, on condition of approval, the Bill on

the Reform of the Labor Market to Ensure Growth.

The first part of the Bill is aimed at discouraging the abuse of "flexible" employment. Fix-

term contracts may no longer be obliged to mention the reason of the first contract underwritten by

the parties and they may extend the minimum period between a contract and another (from 10 or 20

days), provided the first contract lasted over or under 6 months, to a longer period of 60 or 90 days.The contract may also go beyond the expiry date and include the contracting out in the count of the 36

months ceiling for fix-term contracts agreed between the parties. Also, the period to impugn the

contract moves from 60 to 120 days and contributions rise by 1.4%. Contracts on projects may not

apply to executive or repetitive tasks. The notion of project is narrowed down and may not include

the concept of "program"; early termination is banned and the presumption of permanent employment

is assumed where the tasks are not different from those carried out by payroll employees. Presumption

is absolute where the notion of project is non-existent. As regards VAT, presumption of permanent

employment contract is assumed where employment lasts more than 6 months under the same

employer.

The revised apprenticeship contract should come to be the prevailing form of contract for first

jobbers. Fiscal incentives, hiring of people out of work for at least 12 months, insertion of workers aged

over 50 and obligation to notify in advance the administration for on-call and part-time contracts, vertical

and mixed. In the latter cases, workers may unilaterally change their mind on relevant personal

grounds. Ancillary and internship jobs are modified to some extent and association in participation

restricted to the sole first grade members of a family are qualified.

As regards individual dismissals, the Bill distinguishes three types of cases and retains reinstatement

only for the first: a) where illegitimacy stems from substantial causes (wrongdoing absent or sanction

disproportionate), or cause is malady or supervening disablement. In such cases the worker is entitled

to reinstatement, but compensation is limited to 12 monthly remuneration less earnings in themeantime; b) in other cases where illegitimacy is ascertained the Bill provides only for a

compensation indemnity between 15 and 27 monthly remuneration; c) in cases of dismissals flawed in

their procedure, the employee is entitled to an indemnity reduced to between 7 to 14 monthly

remuneration, provided the flaw is substantial in nature.

The Bill needs to clarify its distinction between the three cases. In particular, it is not clear to what extent

the subject matter which falls inside b) is in any way different from dismissals unfair on the merit or, by

the same token, from those invalid on flawed procedure. It would be necessary, in addition, to specify

the legitimacy of the dismissal notified, while in state of illness, for disciplinary reasons extraneous to the

said state.

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3/7N56 March 2012 3

In case of dismissal for objective and justified motive, (renamed economic, even though the

subject matter should not necessarily be inclusive of cost-cutting measures), reinstatement is excluded

and where it is ascertained that the motive invoked is non-existent, the employee is only entitled to anindemnity between 15 and 27 monthly remuneration, save proof that the employer pursued a

discriminatory intent by dismissing the employee (which corresponds to the contours of the first type of

case). On the point, the Bill provides for the introduction of a form of conciliation procedure that carries

little conviction insofar as it might incite the worker to adopt a dilatory comportment.

The third part of the Bill regards the social net. The social insurance for employment (ASPI) is

destined to progressively play an over-arching role over the current unemployment and mobility

benefits, for periods between 12 to 18 months benefits. The maximum amount for unemployment

benefits is to remain at 1.119,32. Workers not previously under permanent employment contracts are

not expected to draw indemnity benefits. Where the working position at the company is not expectedto remain during the idle time caused by forced reduced productive capacity, the bureau of

unemployment complementary benefit for idle-time workers is expected to cease its activity.

With regards to equal employment opportunity and affirmative action, the procedure for resignations

handed in the first three years of life of a new born is to be reintroduced, paternal leave amounting to

three to four running days, to be used during the first 5 months of the child, is to be made obligatory,

quotas for disabled should be more scrupulously enforced and dismissed immigrants who draw

unemployment benefits may retain their sojourn permit as long as they are entitled to draw their benefits.

As the Bill is to be amended and changed by parliament, our subsequent newsletters will keep

you informed of the developments.

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4/7N56 March 2012 4

Ruling of the MonthSTATUTE OF LIMITATION (FIVE YEARS) PRESCRIBED BY ITALIAN LAW BAR SOCIAL SECURITY

FROM RECOVERING CONTRIBUTION BENEFITS GENERATED UNDER THE CONTRACTS FOR

VOCATIONAL LEARNING (CFL) SCHEME, HELD AS UNLAWFUL BY THE EC

(Court of Appeal of Cagliari - Employment Section, 9 March 2012)

Before going into the merits of the case it is not unnecessary to remind readers that Contracts for

Vocational Training (CFL) were widely used before the Biagi Act came into force in 2003. It is worth alsoreminding that Act #863/1984 and subsequent modifications and amendments enabled companies to

hire under such type of contract young people aged between 16 and 32, and enjoyed a reduction of

contributions of 25 or 40%, reaching even 100% according to the territorial location of the enterprise.

On May 11, 1999, the European Commission declared that reduced contributions granted Italy, as from

November 1995, to recruit people by way of contracts provided for by Act #863/1984, and under

decisions n 407/1990, n 169/1991 and n 451/1994, qualified as state help compatible with the

common market and with EC accord provided they concerned: a) the creation of new jobs in the

benefiting enterprise in favor of workers who had not found an employment yet or who has lost their

previous job under the terms provided for by the legislative provisions on support to employment, b) the

hiring of workers who face specific difficulties in entering or re-entering the labor market, that is, the

young under 25; graduates aged until 29 inclusive and long unemployed people, in other words,

people jobless for at least a year.

As a consequence of the EC decision, Italy was requested to recover all the contributions of such

companies as had hired people on grounds and criteria other than those qualified in the scheme.

The problems involves a large number of companies who claimed, inter alia, the statute of limitation of

contributions to Social Security, the burden of proof of said and the absence of clear amounts as

requested by Social Security, and the conformity of the companies with the qualifications for fiscal

incentives then in force.

The Court of Appeal of Cagliari confirmed the lower court ruling and affirmed a principle, firmly

questioned by Social Security, whereby beneficiaries of incentives contrary to EC law (and, therefore,

inclusive of companies) may dispute the recovery intended against them also invoking the statute of

limitation to the obligation of restitution.

Moreover, the Constitutional Court had already laid down in its decision 125/2009 that application of

national legislation on the statute of limitation may not be viewed in contrast with EC legislation insofar as

the five-year statute of limitation is reasonable according to the court practice of the European Court of

Justice itself and provides sufficient time for Social Security to proceed with due diligence to the

recovery of state relief.

(Counsels: Luca DArco and Marina Tona)

FIRM CASES

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5/7N56 March 2012 5

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FAQWhether the installation of devices to check the presence of employees at work should

conform with the procedure as at art. 4 of the Statute of Workers (namely, by way of an

accord between unions/administrative authorization).

There are two conflicting views on this issue. For some, such devices do not fall inside the

restrictions as at art.4 of the Statute of Workers though they do exercise a control over

working activity. Such control is in plain sight and could not be viewed as injurious to the

intimacy of the employee who activates it of his own initiative by clocking, in coincidence withthe beginning or the end of the working day. For others, instead, such devices fall inside the

restrictions as at art. 4. For such reason, prudence suggests that trying out with said art. 4 is

the better solution. This could be done by way of the installation of an automatic presence

monitoring device that not only helps compute work hours for pay stipend purposes, but also

verifies in the event cases of non-performance by the employees, which may be conducive to

disciplinary action (for instance, non respect of work hours, lateness, etc). In failing to adopt

the second option one runs the risk of seeing one's grievances or claims found illegitimate.

COURT OF CASSATION NEWSLINEBy Stefano Beretta and Antonio Cazzella

EFFICACY OF DISMISSAL FOR ORGANIZATIONAL PURPOSE

The Court of Cassation passed sentence #3547, 7 March 2012, confirming a consolidated

practice whereby, where illness supervenes upon notification of dismissal for organizationalmotives, the efficacy of the termination is suspended for the whole duration of the illness. In the

case at hand, the executive who had been notified dismissal for organizational reasons had

managed to avoid the reading of the dismissal letter and its notification by letting it be

understood that he was willing to find an amicable accord. From the day following said

notification he had not appeared at work on the ground of illness (which lasted one year). The

judges pointed out that the prospect of losing one's job is more often than not conducive to a

state of anxiety and depression. The employer, in spite of having proved the organizational

motive of the case and, therefore, the legitimacy of the dismissal, was however unable to prove

premeditation of the employee to shed temporarily the efficacy of the dismissal by sending a

medical certificate, nor did he prove that the medical complaint was non existent or that the

medical certificate was untrue.


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Civil, Commercial,

Insurance Law

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INFORMATION BRIEFBy Vittorio Provera

Without going back on the major points of the reform of apprenticeship (such as, for instance, the necessity

of a written contract mentioning the so-called learning program; the impossibility to discontinue the

contract before the expiry of the qualifying period; the necessity of a tutor; the possibility to assign at the

outset a professional status inferior to the one to be assigned at the end of the learning period, etc), we

would like to underscore some points on learning that are provided for in the Collective Agreement for

employee working for professional firms and service companies.

Firstly the accord provides for so-called transversal learning, which regards substantially aspects such as

valuation of the learning program; inter-personal and communication skills; knowledge of a second and thirdforeign language; training on the knowledge of employment relationships and on the organization of the firm or

enterprise; workplace safety and hygiene.

Also, there are provisions for so-called profession-oriented or trade learning, which regards knowledge of

services offered by consultancy industry; knowledge of the technical and theoretical basis of the professions and

activities pursued, as well as their full application inside the firm or the service company; knowledge and capacity

to use working techniques and methods, inclusive of tools and information technology; knowledge and use of

environment safety and protection standards.

No less interesting is the fact that the Collective Agreement provides that the training be transversal both in its

basis and as profession oriented may be carried out also by way of e-learning and in such case the support

activity may be returned under virtual form by way of telematics and distance video communication.


7/7N56 March 2012 7

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
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