Newsletter

Editorial
By Luca DArco

N 60 July 2012

Trifir & Partners Law Firm

Employment Law Reform. First clarifications on Act #92, 28 June 2012

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 fixterm employment contract and for the purpose of discharging any type of remit, 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 fixterm 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 claries that x-term contract with motives are subject to provisions as at art. 5, 2 of the Legislative Decree #368/2001 (itself, incidentally, modied 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 x-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 x-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 reafrms 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 reafrmed 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 efcacy 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 simplied modes - by way of "emails also not certied and faxes addressed to the Territorial Bureau of Labour as found on the website of the Ministry mentioning without specic formalities the particulars of the employee and the day or days". Communication may be cancelled or modied at any time before the start of the employee's remit. Absent any modication 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 justied recourse to such type of work), and, on the other hand, has further limited 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 x-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 x-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 is already called a maxi-amendment, will be examined in our subsequent newsletters.

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FAQ

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Can 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 qualify in 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

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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