NEWSLETTER T&P N°43 YEAR V

JANUARY 2011

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
Welcome to the first issue of this year's newsletter.
Ever since March 2007 with have kept a regular monthly appointment
with employment and civil law updates.
As regards employment law, the year started with the new
provisions on labour law. Countless numbers of talks and meetings have
been held an are being held at the behest of many institutions. Our Firm
itself has organized for its own clients a series of seminars that drew an
attendance that exceeded our expectations, so much so that we had to
stage additional seminars, on top of the already substantial number of
those planned earlier.
The new legal procedure to impugn, fix-term contracts, conciliatory and
arbitration procedures came high on the agenda of those encounters,
but it remains to be seen, particularly with regard to conciliatory and
arbitration procedures, whether such changes will alter our everyday
work. Indeed, doubts and perplexities raised from all sides of the
profession might still end up by modifying the terms of application of the
new provisions.
The 2011 newsletter remains true to its established features and opens, as
usual, with the Employment Law section and its Focus, dedicated to the
evaluation of work-related stress risk and the indicators to be used
to estimate stress risk, as reported in the circular released by the
Ministry of Labour on 18 November 2010.
The “Firm Cases” section includes the Ruling of the Month, which
illustrates a very recent decision inspired by the new labour law provisions
mentioned above. The “Other Rulings” section deals with such cases as
CONTENTS regard age limit for job positions, joint obligations and right of recourse in
tender contract, contracts on project and re-instatement.
✦ EDITORIAL Our section on Civil, Commercial and Insurance Law contains, among
other things, an article that appeared on Il Sole 24 Ore and which
✦ EMPLOYMENT LAW
examines an important case counselled by our firm, touching antitrust
✦ FOCUS 2 legislation and its civil law implications. We wish once again a Happy New
Year and hope you'll enjoy our contents till next month.
✦ FIRM CASES 4
Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,
✦ CIVIL LAW, COMMERCIAL, Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,
INSURANCE Tommaso Targa and Diego Meucci

✦ FOCUS 6 This is an abridged and edited version in English of Trifirò & Partners
newsletter. If you wish a full-length English translation, please contact
✦ CONTACTS 7 Stefano Trifirò: stefano.trifiro@trifiro.it or newsletter@trifiro.it

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 NEWSLETTER T&P N°43 YEAR V PAGE 2

Employment Law
Focus
WORK-RELATED STRESS RISK ASSESSMENT
By Stefano Trifirò
The new and updated edition of our Labour Code, let it be known, at art. 2087 of the civil code,
that the new provisions on workplace safety and hygiene carried with them a procedure to
evaluate work-related stress risks.

Such work-related stress is outlined under art. 3 of the European Accord of 8 October 2004 - as
duly incorporated by the accord between unions and management on 9 June 2008 in conformity
with the incorporation procedure of the European Accord - and is defined as “such condition as
may be accompanied by disturbances and dysfunctions of a physical, psychological and social
nature and is the consequence of the fact that such persons do not feel capable to meet the
requests or expectations placed on them”. Not all manifestations of stress at the workplace may be
considered as work-related stress conditions. Only such specific factors as may be part and parcel
of the tasks of the worker may qualify as work-related stress. Work-related stress risk assessment
is conducted by the employer by way of the Prevention and Protection Service Officer, in co-
operation with the occupational doctor of competence and by means of consultation with the
safety officer representing the workers.

The Ministry of Labour and Social Policies has issued a circular on 18 November 2010 that
clarifies the steps of the procedure to be followed to carry out the assessment required.

The evaluation of work-related stress risks is based on a number of cardinal points and
comprises two phases. The first phase is necessary or preliminary, while the second is only an
eventuality.
✦The necessary evaluation is based on a number of objective and verifiable indicators of stress,
such as the ratio of injuries, number of sick leaves, personnel turnover, disciplinary notifications and
sanctions, complaints from other workers, inter-personal conflicts, etc.
✦Should such necessary evaluation show the absence of work-related stress risk factors, the
employer shall declare so and endorse the findings of the evaluation.

Should, instead, the evaluation reveal the existence of work-related stress risk factors, the procedure
then moves to the second phase, which calls for the “assessment eventuality” and/or in-depth
assessment. This phase provides for questionnaires, reunions and talks with the participation of the
workers to thrash out more efficacious solutions to prevent risks.

The report on risk evaluation must mention the planning steps of said evaluation proceedings.
In order to verify the efficacy of such new procedure and also with a view to entrenching it thereafter,
the permanent Consultative Commission on workplace safety and health is expected to draw up
and release a report inside 24 months from the approval of this new system of evaluation, after
carefully monitoring the way evaluation operations are being carried out.

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 NEWSLETTER T&P N°43 YEAR V PAGE 3

Employers who have already completed by 31 December 2010 their work-related stress risk
assessment need not repeat the procedure but need only to keep their report updated.

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N°43 YEAR V PAGE 4

Firm Cases
RULING OF THE MONTH
APPRENTICESHIP CONTRACT ILLEGITIMATE AND APPLICABILITY OF
ART. 32, ACT #183, 4/11/2010
(Tribunal of Rome, 13 January 2011)

The case examined by the Tribunal of Rome regards the legitimacy of two fix-term contracts and an
apprenticeship contract, underwritten within a short interval.
The employee hired under these contracts, at the end of his trial period, was dismissed from the
company and the same, thereafter, impugned the fix-term contracts, claiming nullity of term, absent
grounds to justify them, and also impugned the trial period of the apprenticeship contract, claiming
illegitimacy for absence of effective training. The Tribunal of Rome ascertained the legitimacy of the two
fix-term contracts, in application of noted principles, in particular, and with regard to one of said
contracts, ending owing to “an unforeseen increase of production activity”, the Tribunal affirmed that art.
1 of Legislative Decree #368/01 allows for a termination clause where subject to production exigencies
also where it refers to the ordinary activity of the employer. On that ground, the Tribunal rejected the
claim of the employee that the term was null and void because of the motive for his recruitment were
not unforeseen and exceptional. The ruling innovates insofar as it applied to the apprenticeship
contract, found illegitimate and converted from the outset as a permanent contract, art. 32 of Act
#183/2010. This is one of the very first decisions of its kind.
The judge of Rome pointed out that the apprenticeship contract is notoriously used as fix-term contract
which, where declared illegitimate until the coming into force of Act #183/2010, entailed the obligation
for the employer to re-start the functionality of the relationship and to pay the employee as
compensation the retribution accrued from the date said employee had made his labour capacity
available anew (i.e., from the date retribution had been discontinued).
Now, instead, §5 and 7 of the new labour law provisions that came into effect on 24 November 2010,
set forth that, in cases of conversion of fix-term contracts, the judge sentences the employer to an
indemnity to the employee which may range anywhere between a minimum of 2.5 monthly wages to a
maximum of 12 monthly wages of the last global retribution, taking into account the criteria pursuant to
art 8 of Act #604, 15/7/1966 (number of people employed, size of the enterprise, seniority, conduct and
conditions of the parties).
The provision mentioned is to be applied by all judgments, inclusive of those pending at the date the
new Act came into force and, consequently, also applies to case being examined, as from 2009.
The Tribunal made clear that the “all inclusive” compensatory indemnity due the employee under the
new regulations may not come on top of the right of the employee to payment of retributions for the
period of unemployment because, on principle, the employee has no right to such claim but only to the
claim of compensation for damage calibrated to the retributions accrued at the date of the
consideration offering labouring tasks, once subtracted retribution deriving from tasks performed and, in
line with common court practice at Rome, limited to three years, as at art. 1227 of the civil code, (which
counts as a requisite, for the quantification of damages, also the conduct of the employee, where said
did little to find a new job).
The sentence here examined also added that the compensatory indemnity provided by art. 32 might
also be more favourable to the employee than the earlier form of damage compensation calibrated to
the retributions due as from the date of discontinuance, or non-payment, insofar as it does not require
the subtraction of performance-related retributions and ascertainment of whether the employee actively
sought another job which, according to the court practice mentioned earlier, would be expected to last
not more than three years. Other sentences, instead, affirm that the indemnity provided for at art. 32
comes on top of the damage compensation calibrated to the loss of retributions from the termination of
the relationship declared null or illegitimate (see Tribunal of Busto Arsizio, 29 November 2010).
(Counsel: Marina Olgiati)

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 NEWSLETTER T&P N°43 YEAR V PAGE 5

OTHER RULINGS
A G E L I M I T R E Q U I S I T E F O R R E C R U I T M E N T O F E M P LOY E E N OT
DISCRIMINATORY
(Tribunal of Milan, ordinance 29 July 2010)
The Milan Employment Tribunal was called upon, within the ambit of a special procedure pursuant to art. 4 of
the Legislative Decree #216/2006, to ascertain the alleged discriminatory nature of a company which, among
other technical requisites to a job offer, required that the applicant be not above the age of 45.
According to the plaintiff, the presence among the requisites for the job of an age limit was in breach of the law
pursuant to Directive 200/78/EC and to the Legislative Decree #216/2003.
The employment judge pointed out that, in reality, and without prejudice to the general principle standing
against discrimination at the workplace, both the EC Directive and local legislation allow for cases where
different treatments may be compatible with the law in force and anti-discrimination provisions.
Such cases occur where the personal conditions of the job seeker represent, owing to the nature of the tasks
requested and the context in which they are to be carried out, qualify as essential or most instrumental to the
carrying out of said tasks, or where there exists a legitimate objective – fully justifiable – to be accomplished by
appropriate and necessary means. In the case at issue, the age limit was in conformity with art. 1, indent B, of
Ministerial Decree #513/1998. The Employment Judge held that the age limit requisite was strictly connected
to the practical and technical capacity requested for the exercise of the task of tramway driver within the ambit
of a pubic service and having for scope the safeguard of the security of passengers and of vehicular traffic. It
was held as proven and amply demonstrated that in most cases middle-aged drivers reacted less promptly
and had greater difficulty to concentrate, let alone get accustomed to new tasks.
Such characteristics were held as detrimental to the level of dependability required from first jobbers in the
field, expected to carry out a task physically demanding. On that ground, age limit was not in breach of anti-
discrimination regulations.
(Counsels: Giacinto Favalli and Luca D’Arco)

JOINT OBLIGATIONS AND RIGHTS TO RECOURSE

(Tribunal of Milan, 11 November 2010)
An employee – on the payroll of a sub-contractee - brought action against the contractee company and the
principal in order to obtain accrued salary termination indemnity (TFR) and other retribution differences.
The principal company, involved as jointly responsible pursuant to art. 29 of Legislative Decree #276/2003,
counter-claimed and asked, subordinately, a sentence ordering the employer to pay them back the amount of
money that would be due the employee upon execution of the sentence.
The Tribunal, granted the request above and pointed out that “nothing stood in the way of the sentence
requested by the principal against the co-debtor jointly responsible, insofar as the right of recourse is
recognized in the first towards the second, as a consequence of the pronouncement - by the present
sentence - to pay in favour of the principal creditor”, thus enabling the principal to accelerate time for a
payment order of the sum jointly due.
(Counsels: Giorgio Molteni and Sara Lovecchio)

CONTRACT ON PROJECT AND RE-INSTATEMENT

(Tribunal of Milan, ordinance 26 October 2010)
Re-instatement to the job occupied by way of interim relief, pursuant to art. 700 of the code of civil procedure
may be requested against the illegitimate claims of a contract on project. The ascertainment of the re-
qualification, pursuant to art. 69 of the Biagi Act and the subsequent condemnation to re-instatement to the
job may be declared only after an ordinary sentence, owing to the complexity of the investigation required,
which is not compatible with the summary nature of an interim relief.
The risk invoked to justify interim relief is represented by a risk of immediate and irreparable prejudice against
the petitioner. Claims contained in the recourse and claiming damage incurred by subjects other than the
petitioner himself are irrelevant (in the case at issue, a teacher removed from his position sued for re-
instatement on the job, owing to the prejudice incurred by “his” students, and invoking the constitutional
principles of the right to freedom of teaching and instruction).
(Counsel: Tommaso Targa)

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 NEWSLETTER T&P N°43 YEAR V PAGE 6

Civil, Commercial and

Insurance Law
Focus
ANTITRUST REGULATIONS AND CIVIL IMPLICATIONS
By Francesco Autelitano, Andrea Beretta and Vittorio Provera

Doubtless, one of the most relevant issues in recent years regards the civil implications of
breaches of antitrust regulations.

Our firm addressed the issue in a complex dispute involving the congruence of the sums requested
by an airport managing company to the air carriers for the services rendered to said air carriers (such
as, for example, dispatch, retrieval and delivery of baggage, technical handling of embarkation
fingers and debarkation of passengers).

According to the air carriers, the airport charged fees that were too high and that, in so doing, the
took advantage of a dominant position that amounted to a monopoly that was also in violation of the
EC Treaty. Consequently all of the carriers had agreed to pay only a fraction amounting to 65% of the
sums requested by the airport managing authority, yet still enjoying the services listed above. The
airport authority, at this point, had also request payment of the balance due (35%). The dispute arose
on such impasse. The press provided extensive coverage of the spat and the dispute led to talks and
ended on a compromise that satisfied both parties (see “Sea-Alitalia, pace fatta sui debiti AirOne”
Il Sole 24 Ore, 20 January 2011).

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