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, in particular, by art. 18 of the Statute of Worker s, has nearly drowned the recent Legislativ e 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 ofthe 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 T ribunal 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 FA Q 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 Ton a and the editorial staff: Francesco Autelitano, Stefano Beretta, Antonio Cazzella, Teresa Cofano, Luca D’Arco, Diego Meucci, Claudio Ponari, Vittorio Provera, T ommaso Targa, Stefano Trifirò and Giovanna Vaglio Bianco • Employment Law • Focus 2 • Firm Cases 5 • Court of Cassation 6 • Contacts 8
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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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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
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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.