newsletter t&p n°57 eng

8/2/2019 Newsletter T&P N°57 Eng

http://slidepdf.com/reader/full/newsletter-tp-n57-eng 1/8

Editorial Our newsletter this month contains its usual wealth of breaking news and

topical issues.

The major debate triggered by the reform of employment law and, inparticular, by art. 18 of the Statute of Workers, has nearly drowned the

recent Legislative Decree, March 2 2012, #24 that came into force

on April 6 and which introduces substantial changes with regard

to supply of work. This issue is the Focus of our first section on

Employment Law.

The Ruling of the Month are in reality 6 decrees pursuant to art. 28 of

the Statute of Workers - that proved significant enough to grab the

headlines - which were handed down in as many rulings upon action

brought by the metal workers’ union (FIOM) against a number of

companies of the FIAT Group to ascertain the anti-union practice

of turning down the nomination of the Joint Unions

Representatives (RSA ).

Also, we report on a recent decision of the Tribunal of Bergamo on

the very issue of work supply contract, as well as on a ruling of

the Court of Appeal of Milan concerning union and management

and, in particular, art. 27 of the Statute of Workers.

The FAQ of the month touches on the issue of the time taken up to

put on working outfits: does it fall inside work hours and, if so,

should it be remunerated?

I shall leave it at that and let you enjoy our rich contents!

Marina Tona and the editorial staff: Francesco Autelitano, Stefano

Beretta, Antonio Cazzella, Teresa Cofano, Luca D’Arco, Diego

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

Trifirò and Giovanna Vaglio Bianco

• Employment Law

• Focus 2

• Firm Cases 5

• Court of Cassation 6

• Contacts 8


http://slidepdf.com/reader/full/newsletter-tp-n57-eng 2/8N°57 April 2012 2

REFORM OF THE LABOUR MARKETBy Stefano TrifiròOn the issue of the reform of employment law "to ensure growth" we cover here some of themodifications to the first Bill of 23 March 2012 (illustrated in our newsletter n. 56).

The provisions regarding disciplinary dismissal that depart from the original Bill follow repeated talks heldbetween the social parts, the Minister of Welfare and the political parties that support the government. Theylet ample discretion to the Judge to decide on the reintegration of the employee.

It is worth remembering that the Bill of law of 23 March 2012 set forth 3 possible and clearly defined cases where the Judge had the power to request reintegration:

1. the fact alleged was non-existent;

2. the employee had not committed the fact alleged;3. the fact fell inside wrongdoings punishable by such sanction other than dismissal as provided by the

collective agreement of the industry.

In such cases, such a compensatory indemnity as provided by the collective agreement of the industry wasdue the worker, in addition to reintegration.

The Bill currently being discussed in the Senate provides for only two cases for reintegration:

• the fact alleged was non-existent;

• the fact fell inside wrongdoings punishable by such sanction other than dismissal as provided at law, by thecollective agreement of the industry and/or by the disciplinary code.

In the latter case, the Judge would have greater discretionary power to rule on the proportionality of thesanction applied - dismissal - and the breach committed by the employee.In the original Bill, the judge was bound by the defined sanctions set forth by collective agreements and noreference was made to provisions at law.

Thus, reintegration was granted only where such breaches were subject to specific sanctions as defined bycollective agreements.

Moreover, the Bill currently being discussed in the Senate features significant modifications withregard to redundancies, now qualifying as "economic motives".

Also, the original Bill of 23 March 2012 laid down that where it was proven that the motive for dismissal was

non-existent the employee was entitled only to an indemnity between 15 and 24 monthly remuneration andno reintegration, save where dismissal proved discriminatory.

Now, the Bill currently being discussed in the Senate has reintroduced the possibility for the judge to providealso - as alternative to the compensatory indemnity mentioned earlier - to reintegration, save where dismissalproved discriminatory.

The original Bill of 23 March 2012 (which only provided for a pecuniary indemnity) was more in keeping withthe current economic crisis since reintegration of the employee – in a company which had to lay off personnelto cut down costs – strikes as an absurdity.

Lastly, it should be mentioned that the Bill currently being discussed in the Senate also

provides for further modifications and amendments to the system of fix-term contracts andon VAT. As regards the first issue, provisions are due to set down the period of time during which rehire

on a fix-term basis is banned, whilst on the second issue, the criteria still remain to be defined whereby

the employment relationship qualifies as mere work on contract and/or dependent employment.

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http://slidepdf.com/reader/full/newsletter-tp-n57-eng 3/8N°57 Aprile 2012 3

REFORM OF TEMPORARY WORK By Valeria De Lucia

Legislative Decree 2 march 2012, #24 came into force on April 6 and incorporates EC directive2008/104, which aimed at creating "an harmonized framework at community level for the protectionof workers employed by means of temporary work agencies", considering that "work by means oftemporary agencies answers not only the exigencies of flexibility of the enterprise but also thenecessity to conciliate private life and professional life of dependent workers". The incorporationintroduces significant changes in the national system of temporary work.

✦The most significant change regards the possibility to resort to temp workers without

mention of the technical, productive, organizational and substitutive reasons where the temp

work employment contract provides for the employ of:

1. jobless people drawing non-farming unemployment benefit under due or limited requisites from at

least 6 months;

2. people drawing benefits, also in derogation, from at least 6 months;

3. workers defined as "disadvantaged" or "highly disadvantaged" pursuant to EC regulations 800/2008.

Said EC Regulations 800/2008 defines "disadvantaged workers" as follows:

• a person who has not had a regularly paid job for at least 6 months;

• a person who does not have a secondary school or vocational school diploma;

• workers who are above 50 years of age;

• adults who live alone with one or more persons in their care;

• workers exercising their occupation in professions or branches of industry where disproportion

between men and women is above 25%, in comparison with the domestic branches of industry at

large of the Member State, where the worker concerned belongs to the "under-represented" group;

• members of national minorities inside a Member State who need to consolidate their own experience

in terms of knowledge of the language, vocational or professional learning, to improve their prospects

of access to a stable employment.

EC Regulations800/2008 qualifies as "highly disadvantaged" such people who have not had a regular

paid job for at least 24 months.

As regards "disadvantaged" workers, the EC Regulations do not appear as immediately binding. As a

consequence, Legislative Decree 24/2012 requested a decree of the Ministry of Labour - to be adopted

within 90 days - specifying the workers falling into the categories mentioned earlier.

✦ Also, in actuation of EC directive 2008/104, art. 1, §1, a-ter, the new system redefines the

legal standards of “parity of treatment”.

In particular, the previous provisions applicable (which recognized to the worker the right to "a pecuniary

and regulatory treatment globally not inferior to the treatment applied to dependent workers of same

level of the user, at parity of tasks carried out") are now replaced by provisions whereby "the workers

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dependent of the supplier are entitled to base conditions of work and occupation globally not inferior" to

those applied by the user, at law or as provided by collective agreements, "inclusive of" provisions

regarding work hours, remuneration, protection of women expecting, protection of children and theyoung, parity of treatment between men and women and any other provision regarding non-

discrimination.

✦Legislative Decree #24/2012 also provides for the stipulation of employment contracts

between the agency and temp workers (in such case, provisions of Legislative Decree 61/2000

apply as compatible).

✦Legislative Decree #24/2012 also modifies the previous disciplinary sanction system.

Firstly, pecuniary administrative sanctions under art. 18,§3 of Legislative Decree 276/2003 are increased

- from €250 to €1.250 - and the notion of violations of the right of the worker sent on mission appliesabsent base conditions of work and occupation "globally not inferior" to those of dependent workers of

equal level of the user.

The same sanction applies to the sole user where:

1. worker on mission is prevented from use of social and assistance services enjoyed by dependent

workers;2. non-information to the temp worker of vacant positions available;

3. non-information to the Joint Unions Representation (RSA) of the number of and motives for

recourse to the employ of temp workers before such contract is entered into (save in case of

emergency, in which case information is communicated inside the 5 successive days);

4. non-information to said unions, every twelve months, of the number of and motives of the tempcontracts entered into, of the duration of said contracts and of the qualifications of temp

workers.

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Ruling of the MonthUNION REPRESENTATIVES UNDER ART. 19 STATUTE OF WORKERS

Ordnances Tribunal of Turin, 13 April 2012 (joint actions) - Tribunal of Lecce 12 April 2012 -

Tribunal of Milan 3 April 2012 - Tribunal of Biella 21 April 2012 (three joint actions) -

Tribunal of Brescia 24 April 2012 - Tribunal of Milan 27 April 2012

The metal workers' union (FIOM) brought a series of action, pursuant to art. 28 of the Statute

of Workers, against a number of companies of the FIAT Group to ascertain the anti-unionpractice for refusing the efficacy and legitimacy of the nomination of the Joint Unions

Representation (RSA) insofar as said grouping had not underwritten the collective agreement

applicable to the companies of the group.

The Tribunals of Turin, Milan, Lecce and Biella, by way of ordnances rejected the actions,

pointing out that the claim of the plaintiff union stood in incontrovertible contrast with art. 19 of

the self-same Statute, which expressly stipulates that: "Corporate union representatives may be

set up upon the initiative of the workers in every production unit, within the ambit of the trade

unions who are signatories to the collective bargain agreements applicable to the production

unit", and contrasted also with constitutional practice, which had laid down in a number of

sentences the impossibility of departing from the literal import of art. 19 and had recognized, as

a consequence, access to union rights, as envisioned in title III of the Statute, solely to to those

unions that had effectively participated in the drafting and underwriting of the covenants

applicable to the production unit.

The collective agreement referred to under art. 19 in the new text must be such, in addition to

having a "regulatory nature", as to regulate in a homogeneous manner relationship between

labour and management "at least to a large extent of the branches or agencies", also in an

integrative manner, and at the level of the enterprise, of a national or provincial agreement

already applied in the same production unit.

From such standpoint, the possible existence of different agreements applied to the production

unit is not relevant, nor is it to be considered as relevant the collective agreement of the metal

workers of 2008 (the last agreement signed by all the unions, inclusive of the plaintiff), abrogated

by the parties and in any event replaced in general by the 2009 agreement and, for the

companies brought to court, by the separate collective agreement of the group.

(Counsel: Giacinto Favalli)

FIRM CASES

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FIX TERM SUPPLY WORK: EXIGENCIES AS CAUSE FOR CONTRACT AND PROBATE BURDEN

(Tribunal of Bergamo, 5 March 2012)

The Tribunal of Bergamo found against a temporary employee who had brought action against the user

company. The court pointed out first that under art. 20 of legislative Decree #276/2003 there are four

subject matters that may legitimize the termination of a contract ("reasons of a technical, productive,

organizational and substitutive nature"), which may not be exceptional or extraordinary but only

temporary in the sense that they do not the hiring of a permanent worker to achieve what is

necessitated.

On that ground, the resort to temp work was found legitimate where production capacity was subject to

ample variations and where peak and trough variations in orders rendered planning unpredictable.

( Counsel: Marina Tona)

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Other rulings

FAQDoes the time taken up to put on working outfits fall inside work hours and, if so,

should it be remunerated?

According to court practice, time needed to reach locker rooms, dress up and then reach

clocking place to register incoming and outgoing hours from the workplace must be paid

where dressing up may not take place outside the workplace premises for intrinsic reasons or

because the employer imposes the place and time to change outfits. The worker who must

change into working outfits on the premises of the workplace must however use due

diligence.





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COURT OF CASSATION NEWSLINEBy Stefano Beretta and Antonio Cazzella

DISMISSAL FOR REFUSING POSTING

Sentence #4797, 26 March, 2012, of the Court of Cassation ruled as legitimate the dismissal of

an employee (in the case in hand, a senior executive) who had refused to accept a posting,

although such decision was the only mean available to preserve his position in the wake of a

corporate restructuring. In particular, it was underscore that the fact that the posting decision

had been suspended following recourse to interim relief, did not exclude the legitimacy of the

dismissal.

DISMISSAL FOR REFUSING TO CARRY OUT TASKS ON POSTING

Sentence #4709, 23 March, 2012, of the Court of Cassation found legitimate the dismissal of an

employee who had refused to accept a posting, claiming that the tasks assigned qualified as

downgrading insofar as wholly different from those previously carried out. In particular, the Court

of Cassation pointed out that there does not exist any presumption of legitimacy with regard to

corporate decisions, which - besides - must not be necessarily executed until court ruling.




http://slidepdf.com/reader/full/newsletter-tp-n57-eng 8/8N°57 A il 2012 8

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]

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newsletter t&p n°57 eng

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