Newsletter

Editorial

N 62 October 2012

Trifir & Partners Law Firm

While expecting further and much-needed clarications on the Fornero Act from the Ministry of Labour on many points that remain unclear, we wish to extend our gratitude to our clients for whom we have organized seminars at their HQs. The scope was to outline the important novelties of the new legal system and to examine in depth the divers problems of application, as well as provide practical answers to the many questions that the new law raises. We feel gratied and honoured by the appreciation of the participants for the solutions we delivered Let us come to the topics of our newsletter. The section on Employment Law opens up with the Ruling of the Month concerning the legitimacy of the conduct of the employer who carries out internal investigations of his own initiative and regardless of the criminal investigations conducted concurrently by the authorities to ascertain whether an unlawful act was committed. The consequence of the legitimacy of the conduct of the employer is that said employer, once concluded his own internal investigation, may lawfully direct a disciplinary sanction to the worker regardless of the outcome of the criminal trial. Also, we'd like to mention the sentence that dismisses - absent the legitimacy to act - the claims of anti-union practice (art. 28 of the Statute of Workers) submitted by a union, in absence of the requisites of representativeness at national level. Another interesting sentence regards a contract for temporary work where the claim of several workers that there existed a de facto permanent employment relationship on payroll with the contracting employer ever since the underwriting of the rst x-term contract was dismissed. No less important is the ruling that dismissed the claim of a worker who asked for the re-qualication of his employment contract on project as a permanent contract
The Tribunal ruled that the claim for re-qualication may not be accepted where the relationship between the parties is of short duration and interrupted by months of inactivity.
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Employment Law Firm Cases 2 Civil Law, Commercial, Insurance Information brief 6 Contacts 8

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On-going relationship and unity of the tasks are indispensable elements to the qualication of the contract as permanent which, in addition, must expressly be proven by the subjection of the worker to the line of command and discipline of the alleged employer. This time round, the FAQ answers to the question of whether a contract of collaboration on project is possible for tasks similar to those performed by the employees of the principal. The Information Brief deals with the issue of data treatment, where GPS systems are installed on company vehicles and whether such systems are in conformity with traceability standards, as well as with their non-conformity with art. 4 of the Statute of Workers, insofar as the systems installed might enable a continuing and remote control of the worker. We wish you a protable reading and we inform you that our next issue will provide ample coverage on the questions raised by many on the interpretation of some provisions of the Fornero Act and on the rst judge-made interpretations. We'll see again in November. Salvatore Trir and the editorial staff: Francesco Autelitano, Stefano Beretta, Antonio Cazzella, Teresa Cofano, Luca DArco, Diego Meucci, Claudio Ponari, Vittorio Provera, Tommaso Targa, Marina Tona, Stefano Trir and Giovanna Vaglio Bianco

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FIRM CASES

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THE EMPLOYER MAY CONDUCT OF HIS OWN INITIATIVE AN INTERNAL INVESTIGATION TO ASCERTAIN THE COMMISSION OF AN UNLAWFUL ACT REGARDLESS OF THE PENAL INVESTIGATION CONDUCTED SIMULTANEOUSLY BY THE JUDICIAL AUTHORITY AND HE MAY DIRECT AT THE CONCLUSION OF HIS OWN INTERNAL INVESTIGATION A DISCIPLINARY SANCTION TO THE WORKER REGARDLESS OF THE OUTCOME OF THE JUDICIAL PROCEEDINGS (Tribunal of Milan, 10 August 2012) Invoking art. 414 of the code of civil procedure, an employee impugned his dismissal by the employer, claiming that such dismissal by the company, which had been prompted by the alleged commission by him of a wrongful act, - subject to a criminal investigation to ascertain the truth of the fact - had been directed him without waiting for the outcome of said proceedings, which were the sole authority that could ascertain whether such crime had effectively occurred. The defendant company counter claimed that the outcome of the criminal proceedings was no obstacle to the exercise of the power of the employer to terminate the contract and that he could dismiss the worker without waiting for the criminal decision on the very fact that had prompted the employer to proceed to disciplinary dismissal. The judge pointed, rstly, that, although the letter of grievances addressed to the plaintiff also mentioned the wrongful acts alleged, the subject of the letter was not the commission of such acts as the commission of certain specic acts and conducts that, even regardless of the outcome of the disciplinary procedure, had an immediate impact on the working relationship. Such facts, according to the Judge may be subject to the conduct of an internal investigation, running parallel but independent from the investigation conducted by the judicial authority, and the employer, upon conclusion of the internal investigation, may direct the disciplinary sanction regardless of the outcome of the criminal trial. The Judge then added that, in any event, under the new clause of art. 295 of the code of civil procedure, penal proceedings did not trigger automatically the suspension of a civil cause, that civil and criminal causes are fully separate and distinct and that, as a consequence, the employment judge could independently proceed to the ascertaining of the facts, evaluating also the evidence gathered in the course of the penal proceedings. That said, and once ascertained the veracity of the facts attributed to the plaintiff, the Judge ruled that the dismissal was legitimate. (Counsel: Giorgio Molteni) ART. 28 OF THE STATUTE OF WORKERS AND THE OBJECTION OF LACK OF ACTIVE LEGITIMACY OF THE UNION WHOSE "NATIONAL" STATUS HAS NOT BEEN EVIDENCED BY THE SIGNING OF NATIONAL ACCORDS OR COLLECTIVE BARGAINS OR BY CONDUCTING NEGOTIATIONS, TALKS OR CO-ORDINATIONS AT NATIONAL LEVEL (Court of Appeal of Rome, 22 August 2012) The Court of Appeal of Rome upheld the objection raised by the company regarding the absence of legitimacy to act, in the proceedings pursuant to art. 28, Act #300/70 of the Flaica Uniti Cub (a trade union), contending that the union was afliated to a grouping which did not present the requisites of representativeness at national level. The Court of Appeal, in line with the interpretation of the Court of Cassation, reiterated the principle whereby, with regards to union representation, the legal criterion of the effectivity of union activity amounts to the capacity of the union to stand as contractual party to the regulation of employee/
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employer relationship. It follows that for a union to be recognized at national level - as required to legitimate action against anti-union practice under art. 28 of the Statue of Workers - what matters is not so much the dissemination of the union across the country as the capacity of the union to negotiate accords and collective bargains, also managerial, with the employers and which apply to all the companies of the branch of industry to which the company belongs and that, indeed, testify to the dissemination and interpenetration of the union across the national socio-economic context. The fact that the statutes of the union state its "national" character is shorn of relevance in itself because it is a mere self-proclamation or merely an objective yet to be reached. In application of the above principles, the Court of Appeal denied the active legitimacy of the union Flaica Uniti Cub under art. 28, in view of the insufcient evidence of the "national character" of the union's activities exercised solely in some parts of the country, as consists in the underwriting of company accords, appointments of union representatives at the company, the signing of accords with administrative agencies to regulate transfers, at local, corporate or division levels. The Judges underscored the fact that there existed no evidence of the signing of collective accords at national level or of negotiating, holding talks and co-ordinations at national level. (Counsel: Marina Olgiati) TEMPORARY WORK: LEGITIMACY OF MOTIVES AND REITERATION OF SUCH MOTIVES (Court of Appeal of Genoa, 20 July 2012) A recent ruling from the court of appeal of genoa conrmed the lower court decision impugned by a worker who claimed, inter alia, that his temporary work contract signed by the user and the temp agency was illegitimate, as well as the relative hiring contracts signed by the supplier and himself. The worker claimed that his employment was permanent and on the payroll of the user ever since the underwriting of the rst x-term contract. In particular, the judges in appeal evidenced that the specicity of the motive of temporary work contract rests in its nality, which is to enable the worker, and thereafter the judge, by way of a written record, to verify the correspondence of said cause with the true nature of the work relationship. In such context, it was held that the formal requisites as at art. 21 of Legislative Decree #276/03 had been complied with, insofar as the motives disputed enabled the above-mentioned verication, which, in the present case, evidenced - as the records showed - that there had been a substitution to absent workers, increase in activity and organizational exigencies. The judges of the higher court also pointed out that the time lapsed and therefore the inadmissibility of appeal between the action in appeal and the defence plea submitted to the lower court by the temp supplier. Lastly, the Court of Appeal pointed out that the reiteration of temp contracts, and for three different motives and at intervals from one another, absent in the law any limit on the point also under a subjective prole, reects the nature of the contract itself and does not qualify in any form whatsoever as distorted use of the temporary form of contract in lieu of a permanent employment contract. (Counsels: Vittorio Provera and Marta Filadoro) CONTRACTS ON PROJECT: PLURALITY OF CONTRACTS AND STEADY INSERTION OF THE WORKER IN THE CORPORATE STRUCTURE (Tribunal of Milan, 14 September 2012) Prior to the coming into force of the Biagi Act (October 2003), it was presumed that contracts of collaboration on projects were based on an independent relationship.

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As such, the worker who seeks re-qualication of such relationship must provide compelling evidence that he is a salaried worker on payroll, inclusive of subordination to the line of command and discipline of the alleged employer. Request for re-qualication is dismissed where relationship between the parts were of short duration and between intervals of inactivity, insofar as on-going work and unity of the tasks performed are indispensable elements to the qualication as permanent employment contract. Moreover, also subsequently to the coming into force of the Biagi Act, such elements remain decisive to valuate the true nature of the project, insofar as it is by denition characterized by temporary technical and productive exigencies. The signing of a continuing series of contracts on project, of similar contents, evidences the steady insertion of the worker in the company and, therefore, the illegitimacy of such contracts, which must be converted into permanent employment contracts. (Counsel: Tommaso Targa)

FAQ
Can one underwrite a contract of collaboration on project to entrust to external collaborators the performance - after work hours - of tasks similar to those performed by the employees and to be carried out on the basis of standard and pre-defined procedures? Act #92/2012 (known as Fornero Act) has modified the status of contracts of collaboration on projects with a view to disincentive employers to resort to this type of contract, which is often used in substitution to permanent contracts, and has set out clear limits. Under the new system, contract of collaboration must i) reflect a specific project and the final objective to be reached must be stated; ii) the project may not include merely executive or repetitive tasks; iii) the activity may not be performed in a manner similar to the manner it is performed by the employees of the company contracting. In light of such limits, and even where a clearly defined project may be entrusted to collaborators and considering the fact that the tasks would be in no way different from those performed by the employees of the company and would be executive/repetitive, the risk is high that the employment contract shall be qualified as payroll employment.

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CIVIL, COMMERCIAL, INSURANCE LAW

INFORMATION BRIEF
By Vittorio Provera

DATA PROCESSING AND THE EMPLOY OF GPS SYSTEMS INSTALLED ON CORPORATE VEHICLES
Enterprises increasingly resort to the use of corporate vehicles (including company cars used for work by employees) equipped with GPS systems for traceability needed to meet organizational exigencies or as safety precaution in case of vehicles transporting people or goods. Such systems may also, as a consequence, increase the possibility to locate and control employees using those vehicles. Data recording the location of vehicles, the itinerary chosen and the time employed (directly or indirectly) as used by employees provide, by the same token, information of a personal nature as they monitor the activity of said employees and they must be evaluated in conformity with the provisions at law as laid down in the Code on the protection of personal data (Legislative Decree #196/03). On that score, the watchdog body on privacy issued, on 1 August 2012, ordinance #134 which directs the evaluation of possible breaches of the law on protection of personal data by GPS systems used by a security agency to track its own vehicles. In the case at hand, some security employees working for the security agency claimed that the mere tacking on the notice board of the agency of the notice informing employees of the installation "on all vehicles in service of tracking systems designed to ensure greater security and to monitor at any time, in case of road accident or in case of theft, the exact location of the vehicles in service" was inappropriate. They also claimed that the notice was contrary to art. 4 of the Statute of Workers insofar as the systems installed (according to those employees) enabled continuous and remote control of the workers. In reality, the company had made clear that the system installed did not monitor continuously the movements of the vehicles (indeed, only the President of the agency by way of apposite credentials and only in case of loss of contact with the vehicle for over 30 minutes, may activate the system) and that no audio or video data could be stored, save the location of the vehicle. A flash point on a map was the only datum provided to locate the position of the vehicle.
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The watchdog authority on privacy, who had been informed of the installation of the system, held nonetheless that the security agency had not informed in advance and adequately the employees concerned as at art. 13 of Legislative Decree #196/2003 and, in particular, on the use and right to access such data, insofar as the agency had merely informed in a sketchy manner the scope of the data processing and, indirectly, the proprietor of said, and the rights of the interested party, as set forth under art. 7 Legislative Decree #196/03. The authority on privacy also found that not all employees had been adequately informed on the processing of the data that the company intended to carry out. Still, it was ultimately found that the system was expressly designed to ensure work safety for the employees and that the system does not qualify as unlawful means of control insofar as it operates intermittently and not continuously and not in realtime, and it does not have a recording or storing capacity.

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N62 October 2012