NEWSLETTER T&P N°35 YEAR IV

APRIL 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
The March issue of our newsletter had mentioned the approval by the Senate of the
new employment provisions attached to the budget for 2010 which feature a
number of substantial innovations and, in particular, provided for conciliatory and
arbitration avenues in alternative to resolving disputes in front of a court. We had
also, however, hinted at the fact that the president of the Republic was having
second thoughts and seemed in no hurry to sign the provisions. Indeed, as our
“Focus” feature in the Employmen Law section of our newsletter illustrates, the
President not only refused to ratify the new provisions but decided to send them
back to Parliament with a motivation invoking art. 74 of the Constitution.
In Particular, the President of the Republic, raises the very issue of “alternative”
procedures for employment dispute resolution. Our partner Giacinto Favalli
reports on the situation and examines the options that lie open for Parliament to
come out of the impasse at the earliest.

It so happens that our “Ruling of the Month” reports on a recourse against a

disciplinary decision submitted to the Board of Arbitration pursuant to art.
7 of the Statute of Workers, which precludes any subsequent action in front of
an employment tribunal. The issue of the application of the former avenue of
dispute resolution by arbitration takes on greater relevance in light of the new
procedure set forth in the new provisions to be revised by Parliament.

Our feature dedicated to “Other Rulings” examines two sentences that

emphasize, respectively, the importance of the will of the party in the
qualification of the nature of the employment relationship in the profession
of journalist and the characteristics peculiar to that relationship in that
profession. The section features also two dismissal cases that seem wide apart
but that both raise the issue of diligence and loyalty on the part of contract workers
CONTENTS at any level.

The “Information Brief” by Vittorio Provera examines the vexing question of

✦ EDITORIAL remote surveillance, in light of a recent communication released by the Ministry
of Labour.
✦ EMPLOYMENT LAW
Last but not least, our firm played host in Rome to the annual forum of Plurijus,
✦ FOCUS 2 the network of affiliated European law firms to which we belong as charter
members. In spite of the grounding of air traffic during the period of the meeting,
✦ FIRM CASES 4 the gathering proved a rousing success. Our Events section features a report on
the tenor of the forum. Enjoy your reading.
✦ CIVIL LAW, COMMERCIAL,
INSURANCE Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,
Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,
✦ INFORMATION BRIEF 6 Tommaso Targa and Diego Meucci

✦ EVENTS 8 This is an abridged and edited version in English of Trifirò & Partners
newsletter. If you wish a full-length English translation, please contact
✦ CONTACTS 9 Stefano Trifirò: stefano.trifiro@trifiro.it or newsletter@trifiro.it

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 NEWSLETTER T&P N°35 YEAR IV
Employment Law
Focus
By Giacinto Favalli
PARLIAMENT NEEDS TO
REWRITE BILL ON ARBITRATION
OF EMPLOYMENT DISPUTES
The President of the Republic finally refused
to sign the new provisions attached to the
budget for 2010 which introduced signal
changes in the manners – both legal and
extra-legal - to resolve labour disputes.
Invoking §1 of art. 74 of the Constitution, the
President sent the Bill back to Parliament for
revision.
In his message to the Chamber of Deputies, the
President strongly criticized the “blatantly
heterogeneous framework of the bill” (which
indeed covers a range of disparate issues), and
stressed the fact that such manner of crafting
laws could more often than not generate negative
effects as to the overall intelligibility and
comprehension of the bill and as to the overall
homogeneity of the regulatory framework.
After this preamble, the President swiftly came to
the crux of the matter, namely the import of art.
31 of the new bill titled “conciliation nd
arbitration”, which touched off a furious debate
between the first commentators.
What caused a good deal of perplexity and
proved highly controversial was not so much the
fleshing out of arbitration and the encouragement
to opt for such avenue to labour dispute
resolution as the mode and manner such
alternative was crafted by lawmakers.
✦The President noted firstly that “it is necessary
to verify whether the provisions are fully
consistent with the voluntary nature of
TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO
PAGE 2
arbitration and the necessity to ensure proper
protection to the weaker party”.
This necessity is rendered even more manifest at
the stage of drawing up the employment contract
where “the condition of weakness of the party
offering to perform labour is at its maximum”.
The point raised by the President of the Republic
r e f e r s s p e c i fi c a l l y t o t h e c o n c e r n s o f
commentators over §9 of art. 31 of the bill which
provided that arbitration procedures could be
adopted not only in the course of an employment
contract but could also be the subject of an
arbitration clause for dispute resolution inserted in
the terms of the employment contract to be
underwritten.
Well-meaning invocations in the bill to the respect
of the general principles of the legal system fell
short of avoiding the risk of seeing a number of
rights curtailed, save those enshrined in the
Constitution.
The perplexity over §9 of art. 31 led to the
subsequent approval of an amendment submitted
by the bill's rapporteur that reads as follows:
“The arbitral clause may not concern disputes
regarding the termination of the employment
contract. In front of the certification commissions
the parties may be assisted by a counsel of their
own choosing or by a union or trade
representative to whom they shall have given
mandate. Absent inter-union accords or collective
agreements pertaining to the application of
arbitration by way of arbitral clauses after a lapse
of twelve months from the coming into force of
the present law, the Ministry of Labour and Social
Policies shall convoke the more comparatively
representative employers’associations and
workers unions, in order to promote an accord.
In the event such accord should not be reached
within six months from the date of convocation,
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 NEWSLETTER T&P N°35 YEAR IV
PAGE 3

the Ministry of Labour and Social Policies shall provide as experiment, bi issuing its own decree (…) to the
full implementation of the provisions of the aforesaid §9”.

The bill is unlikely to surmount obstacles if it hopes again to achieve its original aim by merely rewording
limbs of phrases and introducing ephemeral consultative stages alongside a preordained procedure.
The centre-left minority in Parliament, emboldened by the President’s rejection of the bill, will use any trick
to stall the project.

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 NEWSLETTER T&P N°35 YEAR IV PAGE 4

Firm Cases
RULING OF THE MONTH
OPTING FOR ARBITRAL PROCEDURE PRECLUDES SUBSEQUENT RECOURSE TO
EMPLOYMENT TRIBUNAL
(Tribunal of Milan, 28 December 2009)

It is infrequent for an employee to have recourse, pursuant to art. 7, §VI of the Statute of
Workers, to an arbitration procedure in an action against disciplinary sanctions. Once such
procedure is initiated with the appointment of the arbitrators, no request from one of the
parties to bring action in front of a court of justice may be accepted, save where both parties
agree upon said legal action. The Tribunal of Milan gave this motivation to declare non-
admissible the recourse to legal action submitted by an employee who had first opted for the
procedure pursuant to art. 7, §VI of the Statute of Workers in front of the Board of Conciliation
and Arbitration and had then changed his mind and informed the said Board that he wanted
to change “strategy” and put his claim in front of an employment tribunal. The Tribunal found
in favour of our plea and held that the worker – after due constitution of the board of
arbitration – could not go back on his first option on the noted principal that “When there is
concurrence of means, he who has chosen one cannot have recourse to another” (an issue
that takes on even more relevance at the very time when arbitration of labour disputes is at
the centre of a highly controversial bill).
(Counsels: Giacinto Favalli and Angelo Di Gioia)

OTHER RULINGS

JOURNALIST EMPLOYMENT CONTRACT - CONTRACT WORK AND PAYROLL CONTRACT -

DEFINITIONS
✦ (Court of Appeal of Milan, 13 April 2010)

The Court of Appeal of Milan struck out an appeal by a journalist who had lost in front of the lower court a petition to
recognize the status of permanent employment to his on-contract work, stating that no distinction between
dependent employment and on-contract employment could be clearly established unless the respective wills of the
parties had been previously ascertained and, in like manner and progressively ascertained, over time, the practical
modes of performance of the tasks and, in general, the activating of the relationship.
With this regard, the Court added that in the specific case of the profession of journalist, the nature of the
dependency takes on a different configuration, owing to the intrinsically intellectual tenor of the performance and
must be seen in light of the permanent availability of the employee to follow the specific instructions of the employer;
conversely, the relationship qualifies as non-dependent where the contract underwritten – or also any number of
similar contracts signed successively over time – provide for a single “supply”, also where staggered over time, with
a single retribution.
(Counsels: Mario Cammarata and Valentina Ruzzenenti)

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 NEWSLETTER T&P N°35 YEAR IV PAGE 5

DISMISSAL - VIOLATION OF OBLIGATIONS OF DILIGENCE AND LOYALTY

✦ (Tribunal of Milan, 31 March 2010)
The employment tribunal of Milan confirmed the legitimacy of a dismissal for just cause of an executive found in
breach of the obligations of diligence and loyalty. The defendant, a General Director, had set up companies originally
registered under the name of his wife and subsequently under the name of third parties, to underwrite contracts in
favour of the said companies, offering unusual discounts and generous payment schedules at the expense of his
employer. In addition, the same executive, in the course of a reunion convoked for the scope of clarifying such
improper conduct, made in the presence of witnesses insulting and vulgar remarks addressed to the Managing
Director, taking advantage of his foreign nationality and of his spotty proficiency in the Italian language.
The judge, on the evidence submitted by the company (Chamber of Commerce records, payment schedules and
discounts), rejected the recourse of the defendant and sentenced him to payment of legal expenses.
(Counsels: Stefano Trifirò and Mariapaola Rovetta)

✦ (Tribunal of Brescia, 9 February 2010)

The leaving unattended of a company scooter in the courtyard of an habitation, with the kets inserted in the ignition
and the luggage containing company papers left open may be sanctioned by dismissal with cause. So held the
Tribunal of Brescia, upholding the legitimacy of the disciplinary dismissal decided by an employer. The Brescia
employment tribunal held that that the conduct of the worker, also in view of the tasks ascribed him (as head courier
for all correspondence) qualified as serious breach of the obligations of diligence and were sufficient to irreparably
break the bond of trust between the parties of the employment contract.
(Counsels: Salvatore Trifirò and Angelo Di Gioia)

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 NEWSLETTER T&P N°35 YEAR IV PAGE 6

Civil, Commercial and

Insurance Law
Information Brief
By Vittorio Provera

REMOTE SURVEILLANCE – QUALIFICATIONS FOR CALL CENTER

SERVICES, TELEMARKETING AND OTHER SUCH SERVICES

The spread of systems of communication employed to execute services and activities also of a
commercial nature increasingly requires that companies monitor such services (for instance,
telemarketing, call centers, etc…). Such monitoring, indeed, does not have the scope of
controlling the specific activities of employees.

In such a context, the exigencies of the enterprise must conform with the provisions of art. 4, §2, Act
300/1970 which sets forth that “such control installations and equipment as are required by productive
and organizational exigencies or byr workplace safety imperatives but that entail also the possibility to
exercise remote surveillance of the activities of the employees, may only be installed upon agreement
with the representatives of the unions of the company… Failing such agreement upon request of the
employer, the labour inspectorate shall provide…”.

However, on that very point, the General Inspectorate Office of the Ministry of Labour had already
specified that automated procedures that enabled to ascribe unit costs of single phone calls to cost
centers were not subject to the restrictions and rules set under said art. 4. Moreover, where call costs
were attributed to a single person it was necessary to verify on a case-by-case basis whether such
procedure authorized an indirect control of the activities of the employee. Such control was excluded
insofar as even though the system enabled identification of both the number called and the work station
from which that number was called, a degree of rotation of the persons who would access such
workstation remained, in such manner as to prevent direct and unequivocal connection between the
phone used and the employee.

A recent circular of the Ministry of Labour date 1 March 2010 examines the issue of the installation of
control systems that can register the contents of in-coming and out-going calls for the scope
of random monitoring of the quality of processes and services providing assistance to clients
by telephone.

As regards such systems and the scope for which they are used, the General Direction of the
Inspectorate points out that the regulations of the Statute of Workers should not apply where such
systems are provided with apposite measures to protect privacy that prevent tracing back the contents of
the conversation being monitored neither to the operator nor to the client.

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The protective measures should consist in the encryption of the voices of both client and operator
being registered in such manner as to prevent identification of either; in the deletion of the first
seconds of the conversation so as to cancel the name of the operator; in excluding any report
of information on single operators, or tracks inherent to the name of the operator and any
other such data as may lead to identification. Lastly, access to data registered should be
limited only to such persons as are authorized to conduct monitoring (for the sole scope of
verifying the quality of processes and services providing assistance to clients by telephone).

Provided such cautionary measures are adopted, such companies are not subject to the regulations set
forth in the Statute of Workers.

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 NEWSLETTER T&P N°35 YEAR IV PAGE 8

Events
Meeting Plurijus 2010
The annual meeting of Plurijus, the network of European legal firms, of which
our legal practice is one of the charter members, was held in Rome on April 16
and 17, 2010.
Plurijus groups some of the foremost legal firms in Belgium, Denmark, France,
Germany, Ireland, Luxemburg, the Netherlands, Portugal, Spain, Sweden and Great
Britain.
Our firm was represented at the meeting by partners Stefano Beretta, Giacinto
Favalli, Stefano Trifirò and Luca Peron, from the head office in Milan and by Paolo
Zucchinali, Alessandro Sampaolesi and Gaia Vesci from the Rome office.
The forum was dedicated to an in-depth illustration of the new provisions
attached to the Ialian budget approved for the year 2010 and to a comparison
with foreign legislations on dispute arbitration procedures.
The second part of the programme emphasized the crucial role of co-operation
between the divers legal firms affiliated in order to provide clients with finely
calibrated services that meet the growing exigencies of large corporations for
legal advice on Europe and the world.
Participants also enjoyed to no small degree the tourist programme that took
them on a tour of the Eternal City’s landmarks and to the Vatican museum.
The next Plurijus meeting will take place in France in May 2011.

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 TRIFIRÒ & PARTNERS LAW FIRM
Trifirò & Partners has its head office in Milan and branch offices in
Rome, Genoa, Turin and Trento. Founded in the sixties by Mr.
Salvatore Trifirò, it now numbers 80 professionals and staff-workers
coordinated by the Partners.
Trifirò & Partners is the foremost firm in Employment Law and it also

Design: Emanuela Zocchi

provides legal assistance in the main areas of Civil Law and, in
particular, in Company, Insurance, Commercial, Finance, Industrial and
Administrative Law.

The Firm advises major Italian and foreign corporations, and has a
network of qualified affiliates firms throughout Italy, Europe, Asia and
the United States. It also ensures on-spot assistance through its lawyers
everywhere in Italy and abroad.
Trifirò & Partners boasts one of the most prestigious legal libraries in
paper and in multi-media. The firm is the point of reference for
professional training, conference participation, the editing of articles for
major newspapers, specialised magazines, publications and books.

DEPARTMENTS:
Employment, Agency, Security and Trade-Union
Trading, Industrial, Bankruptcy
Insurance, Banking, Company, Contract
Administrative
Family, Succession

CORRESPONDING FIRMS:
Belgium, Denmark, France, Germany, Ireland, Luxembourg, Netherlands, Portugal, Spain, Sweden, UK,
China, United Arab Emirates

Milan
20122, Via S. Barnaba 32
Tel.: + 39 02 55 00 11 Fax.: + 39 02 54 60 391; + 39 02 55 185 052; + 39 02 55 013 295

Rome
00192, Lungotevere Michelangelo 9
Tel.: + 39 06 32 04 744 Fax.: + 39 06 36 000 362; + 39 06 32 12 849

Genoa
16121, Piazza della Vittoria 12
Tel.: + 39 010 58 01 39; + 39 010 56 22 62 Fax.: + 39 010 58 28 71

Turin
10121, Via Raimondo Montecuccoli 9
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Trento
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