NEWSLETTER T&P N36 YEAR IV

MAY 2010

NEWSLETTER
Trifir & Partners Law Firm

Editorial
Our newsletter is celebrating its 3rd anniversary and moving fast beyond.
This 36th issue is quite an achievement and is an encouragement to move on.
Our newsletter has relentlessly sought over the years to get ever better and to
enrich its contents with breaking information for its readers, both in the area of
employment law, civil law and insurance.
The firm itself is inspired by the same spirit and expands the range of its
services by creating new branches (the latest up and going office opened in
Trento), in a bid to stand ever closer to the exigencies of our clients and to
improve ever further the quality and fast-response approach to the professional
counsels delivered.
We would very much appreciate if our lawmakers displayed the same spirit.
The previous issue of our newsletter chronicled the tribulations of the new
employment regulations, plagued by amendments and counter-
amendements, as expounded in greater details on the blog JOBtalk. After
being approved by the lower House the text is now bieing examined by the
Senate and because, most probably, the text will be modified, it will have to
be re-examined by the Lower House for final approval and prior to being
promulgated by the president of the Republic and published in the Official
Gazatte. Our next issue will keep you informed on developments.
Going back to the current issue, the Focus feature is this time dedicated to
Labour Law, a reflection on the new rules applicable to CCTV
surveillance released by the Authority on privacy in a decision issued 8
April 2010.
The feature is followed by our Ruling of the Month, which examines a
CONTENTS case of dismissal for refusal to discharge one's remit. The Firm Cases
feature, meantime, reports on another dismissal case and on two rulings
regarding overtime.
EDITORIAL
The section on Civil Law examines a decision of the Court of Cassation
EMPLOYMENT LAW on unfair competition between companies and poaching employees.
Our Information Brief deals with the issue of stress risk, a concept
FOCUS 2 which as from August next will have to be duly assessed, in conformity and
compliance with the Omnibus Text on workplace safety (Legislative Decree
FIRM CASES 4 #81/2008).
Till next month, enjoy your reading.
CIVIL LAW, COMMERCIAL,
INSURANCE Stefano Beretta and the editorial staff: Stefano Trifir, Marina Tona,
Francesco Autelitano, Luca DArco, Teresa Cofano, Claudio Ponari,
FOCUS 6 Tommaso Targa and Diego Meucci

INFORMATION BRIEF 7
This is an abridged and edited version in English of Trifir & Partners
CONTACTS 9 newsletter. If you wish a full-length English translation, please contact
Stefano Trifir: stefano.trifiro@trifiro.it or newsletter@trifiro.it

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 NEWSLETTER T&P N36 YEAR IV
Employment Law
Focus
By Stefano Trifir
NEW RULES ON CCTV
SURVEILLANCE AT WORKPLACE
The Authority on the Privacy of Personal
Data has issued on 8 April 2010 a new
decision with regard to CCTV surveillance,
which supersedes the decision dated 29
April 2004.
The new decision sets clear rules inside the
bounds of which treatment of personal data
conducted by way of CCTV and in the
pursuance of legitimate interests without
requesting the consent of the persons involved
may be carried out.
The general principles are set forth under art 2:
data treatment proceeding from CCTV
surveillance must be grounded on one of the
requisites of legality expressly provided for in the
Code for public and private subjects and
economic state agencies. Such requisites are
applicable to a range of branches of activity and
are as such listed separately in the subsequent
paragraphs of the decision, with regard to both
private enterprises, government entities or state
controlled businesses;
any
informatics system whatsoever and its
appending programme must already be
configured at the source in such manner as not
to use data that may identify the person
whenever the scopes of the treatment of
information may be reached by using simply
anonymous data. Such rule is governed by the
principle of necessity, which presides over the
due configuration of informatics systems and
software programmes for the scope of reducing
to a minimum the use of personal data (art. 3 of
the Code);
TRIFIR & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO
PAGE 2
CCTV surveillance must be conducted in the full
respect of the principle of proportionality, in the
selection of modes of filming and positioning of
cameras, as well as during the different phases
of data treatment, which must include, in any
event, due relevance of the data treated and
may not extend beyond the scopes defined (art.
11. 1, letter d) of the Code).
As regards work relationship, the Authority
dedicates a special section (art. 4.1. Work
Relationship).
The Authority makes clear that surveillance
must comply with the ban on distance control
of the activity of the employee and, to that
effect, prohibits the installation of equipment
that are specifically designed to monitor agreed
duties of diligence at work in terms of work
hours and performance (for instance, focusing
camera on ID badge).
The Authority also states that such work
relationship protection rules as are laid down
where CCTV surveillance is made necessary on
the ground of organizational or productive
motives, or for workplace safety reasons, must
be duly complied with. To that effect, and
pursuant to art. 4 of Act #300/1970, installations
and equipment "which may also lie open to
distance control of the activity of the employee
may only be used upon agreement with company
union representatives or, absent representation,
by the internal commission. In absence of accord,
and upon request of the employer, the labour
inspectorate shall provide, directing, where
n e c e s s a r y, t h e m o d e s o f u s e o f s u c h
installations" (art. 113 and 114 of the Code; art. 8
Act. #300/1970.; art. 2 Legislative Decree.
165/2001).
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 NEWSLETTER T&P N36 YEAR IV
Such protection rules are to be observed both
within the premises and in other areas where
work performance is being carried out, such as
construction sites and with regard to cameras
installed on board vehicles destined for passenger
transport (art. 82, 85-87 Legislative Decree 30
April 1992, #285). Under new code on passenger
vehicles destined for rental with drivers and stop
stations (taxi cabs) who may not return to same
cab rank position CCTV footage used to ascertain
possible violations may not be used for controls,
even indirect, of the working activity of the
workers (see point 4.4).
Failure to comply with the aforesaid carries
administrative sanctions under art. 162, 2-
ter of the Code. The use of CCTV surveillance
for the control of employees or to conduct
investigations on their opinions qualify as
offences under the terms of the Code.
Likewise, CCTV footage at the workplace to
illustrate activities and operations for the sole
scope of divulging them or for institutional or
TRIFIR & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO
PAGE 3
corporate communication and that show
employees may qualify as ex-tempore treatment
for the scope of possible publication of articles or
papers and other forms of expressions of ideas.
To that extent, they are subject to the same laws
applicable to the press as provided in the Code
(art. 136ff), inclusive of the bounds set to the
respect of privacy to the right of information, and
the observance of the code of deontology
applicable to the press and the right of workers to
protect their own image on legitimate grounds
and for their divulgation (art. 7, 4, letter a) of the
Code).
Link: www.garanteprivacy.it
New decision with regard to CCTV
surveillance - April 8, 2010
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 NEWSLETTER T&P N36 YEAR IV
PAGE 4

Firm Cases
RULING OF THE MONTH
REFUSAL TO CARRY OUT NEW TASKS DISMISSAL FAIR WAY
(Tribunal of Busto Arsizio, 12 April 2010)

An employee was dismissed on fair cause because he had refused to discharge the task he
had bee assigned, claiming that he was not in duty bound to discharge said activity since the
company had not previously discharged its safety obligations and provided adequate training.
The worker complained that the employer had made innovations in the productive
organization of the enterprise by introducing new equipment without providing new training for
the personnel andthat he had, therefore, requested written instructions on the manners the
performance should be executed.
The employer, instead, contended that the worker had received the training necessary to carry
out the tasks from the moment he had been hired and that the introduction of new equipment
had been meant to upgrade the working conditions of personnel without altering in any
manner the technical nature of the performance requested.

The worker had countered by stating that his conduct was justified since his refusal to
perform the tasks was not unlawful. Lastly, the worker had also argued against the
disproportional nature of the decision to dismiss him on such ground.
The company explained the legitimacy of its comportment and the proportional nature of the
sanction particularly in view of the fact that the worker was a repeat offender and had
previously been sanctioned for a similar conduct barely a year before.
The Tribunal, following a thorough investigation, rejected the claim of the employee and
pointed out that:

the evidence submitted established that the nature of th tasks to be performed did not
require a specific form of training because the operation that the worker was to carry out
had in no way changed because of the introduction of innovations by the company and
which, moreover, significantly upgraded the working conditions of the workers, whereas the
obligation of new training would trigger solely where unlike in the case at issue workers
were to be subject to new risks to health;

the demand of the worker to receive written instructions on the mode to execute the tasks
were wholly groundless as the employer was held under no such duty;

the dismissal for fair cause adopted by the company was proportional to the offence in view
of the practical steps adopted by the worker to refuse performance of his tasks insofar as
he had reiterated to a number of his superiors his intention and had previously acted in
similar defiance and the decision was taken in consideration of the collective agreements
applicable and, specifically, sanctioned by dismissal fair way.

(Counsels: Giorgio Molteni and Claudio Ponari)

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 NEWSLETTER T&P N36 YEAR IV PAGE 5

OTHER RULINGS

OVERTIME WORK PROOF

(Court of Appeal of Naples, 17 March 2010)
The Court of Appeal of Naples rejected on lack of evidence an action brought by a worker who claimed
he had worked overtime, at nights and on holidays, without receiving retribution and who also claimed he
had worked for six running days and, as a consequence, had incurred damage caused by late
recuperation. The Tribunal held that the onus was on the worker to provide incontrovertible evidence
instrumental in demonstrating both the execution of the above claimed overtime work and the amount of
such work.
(Counsel: Marina Olgiati)

RETRIBUTIVE DIFFERENCE OVERTIME AND HOLIDAYS WORKED INDEMNITY

(Tribunal of Padua, 23 February 2010)
A manager brought action in front of the Tribunal of Padua claiming he was entitled to the corresponding
retributive difference for overtime and worked holidays executed in the course of his employ, although on
those very issues he had been granted by contract an "indemnity" due his executive capacity and owing
specifically to his managerial status and the attendant remit.
The Judge reject the claim for the above corresponding retributive difference, declaring that the nature of
the above named "indemnity" received by the employee was doubtless aimed at compensating also
"performance executed beyond regular work hours", although with regard to holiday overtime, in
particular, the Judge held that such contractual scheme "falls within the bounds of the laws that regulate
such form, which, for executive personnel with independent decision powers for whom duration of
employment is not measurable or pre-fixed, or may be determined by the employees themselves, exclude
the right to compensation for work performed beyond regular work hours, on days of rest and weekly
holidays (see art. 1, 2, By-Law n 692, 1923, art. 17, 5, letter a of Legislative Decree #66, 2003)".
(Counsels: Giacinto Favalli and Valentina Ruzzenenti)

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 NEWSLETTER T&P N36 YEAR IV
Civil, Commercial and
Insurance Law
Focus
UNFAIR COMPETITION
BETWEEN COMPANIES AND
POACHING EMPLOYEES
By Francesco Autelitano and Francesco
Cristiano
(Civil Court of Cassation, 30 October 2009,
#23045)
A company (we shall name Alpha) brought action
against another company (we shall name Beta) and
against Messrs Smith and Doe (names fictitious),
claiming that the latter, previously employed by the
plaintiff company, and thereafter hired by the
defendant company had revealed to Beta industrial
trade secrets held by Alpha which had enabled Beta
to move swiftly to the commercialization of a
product by also taking away clients and incurring
asset damages. Alpha made a recourse for cease and
desist against the defendant to divulge to third party
the industrial trade secrets and banning the actuation
of the industrial technique, and the distribution of
installations destined to the execution of such
industrial technique, seeking compensation for
damage and publication of the sentence on national
broadsheets.
Having lost the case in both lower grades, Alpha
appealed to the Court of Cassation, contending, in
particular, that earlier rulings had overlooked the fact
that there had been coincidence between the
research activity conducted by Beta upon the hiring
of Mr Smith; that Beta's new industrial technique had
very swiftly turned operative and that Alpha and Beta
products were substantially similar, were it only to
thelimited extent of a partial coincidence between
the respective manufacturing techniques.
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PAGE 6
The Court of Cassation rejected the appeal pointing
out firstly that the evidence submitted by the
appellant referred to the merits of the case and as
such remained outside the bounds of this
jurisdiction. That point aside, in the view of the
Court of Cassation the elements mentioned by
Alpha did not prove beyond doubt the grounds on
which its claim for damage was based, namely that
the competition exercised by Beta had developed
thanks to the revelation of industrial trade secrets by
Mr Smith and not on the basis of the licit employ of
the knowledge of such techniques Mr Smith had
experienced offered no claim to assert that the
latter had deliberately leaked secrets in this regard
to Beta, his new employer.
Indeed, such revelations had not emerged clearly
from the evidence submitted since the arguments
presented by Alpha failed short of proving unfair
competition. As regards evidence of poaching
personnel, the Court of Cassation confirmed the
earlier opinions that the hiring of Messrs Smith and
Doe had been inspired by their top-rate
qualifications, the which excluded any such
qualification of malevolent intent from Beta as
should have been necessary to prove unfair
competition.
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 NEWSLETTER T&P N36 YEAR IV
PAGE 7

Information Brief
By Vittorio Provera

WORK-RELATED STRESS RISK EVALUATION IS TO BECOME

MANDATORY

As from August next, every employer (from small-to-large business) shall be in duty bound to
evaluate the stress risk correlated to work.

Indeed, art. 28 of the Omnibus Act on workplace safety (Legislative Decree 81/2008), in conformity to the
principles of the European Accord of 8 October 2004 and following modifications introduced by
Legislative Decree 106/2009, makes it compulsory to proceed to the evaluation of the stress risk of
correlated work in conformance with what are to be deemed the explicit indications provided by the
Permanent Consultative Commission. According to the above cited art. 28, in absence of such
indications (as things indeed do stand presently), the obligation starts nonetheless as from 1 August
2010. In such a situation, quite not infrequent in our country, the Technical and Interregional Co-ordinating
Committee on Workplace Prevention (an inter-regional agency) approved on March 25 its own true and
proper operative guidelines for the evaluation and the management of this issue. The paper examines,
among other things, the general aspects of risk valuation; the steps for the valuation and
management of risk and the criteria and methods of valuation; health monitoring and the role of
prevention and vigilance services.

This article does not have the space to fully illustrate the details of this complex report (which may be
found on the Internet anyway), but it is worth pointing out a few significant pieces of information drawn
from it and that help get a better picture of the problem as a whole. Indeed work-related stress (which is
inclusive of a number of phenomena like, for example, burnout, stressogenic pathology which affects
people who exercise support/remedial teaching when they find themselves no longer in a condition to
address adequately an excess in stress load generated by their profession, bullying, etc) currently
accounts for a percentage between 50% and 60% of lost working days every year.

Recent surveys conducted in the EU countries show that discontent at work and its attendant
pathologies rank second in the standing of health problems mentioned by workers and accounts for
about 22% of the workforce in Europe. In Italy work discontent affcts 27% of the workforce
(unfortunately, it should be borne in mind that in Italy stress-generating pathologies are all too often used
as pretexts to claim pecuniary compensation, which comportment causes prejudice to all the real cases
of work-related sufferings). In 2002, the European Union estimated that the economic cost of work-
related stress amounted to 20 billion. All specialisied agencies and research centers, governmental and
private, are agreed on the fact that this phenomenon is on the rise and worsening because of changes in
the forms of work and its organization. In particular, five areas have been identified as having stress-
generating characteristics:

theuse of new types of employment contracts (precarious no-term contracts) and insecurity about
permanence of employment contracts;
increase of the average age of workforce (with rising age incident on the concomitant tendency to
rigidity and lack of flexibility towards new forms of work);
heavy workloads also because of the introduction of new technology (in services and/or administrative
and banking systems, for instance, the Internet and email have helped create and multiply capabilities
and requests and have cut back response time) that put added pressure on employees;

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 NEWSLETTER T&P N36 YEAR IV
emotional tension caused by workplace
aggressive and harassing conducts;
interference and imbalance between workaday
life and private life (also here new technology
may have caused ever increasing interference of
activity also during periods typically dedicated to
private life).
Such factors make it incumbent on the
companies, and in order to meet the regulations
set forth and to evaluate and address divers
issues, to examine case by case their corporate
organization following a procedure that
compounds all the factors that enable
enterprises to adopt, among other things, a risk
evaluation procedure that is dynamic rather tan
static.
In other words, it will be necessary to bear in mind
that while, in general, the model of work-related
risk evaluation adopted on the basis of legislative
decree 626/94 was destined to verify the
existence of an hazard-free context or of an
acceptable degree of hazard generating context,
the new scope covers quite other exigencies.
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PAGE 8
The new rules and specific characteristics
attached to these forms of pathology call for a
system and a procedure for the evaluation of the
stress risks indicators indicative of such
phenomena that are continuous in time and that
register variations of the subjective and objective
situations and conditions of the people. In other
words, and in line with the findings of the report of
the Technical Commission mentioned earlier,
work-related stress risk may not stop short at a
generic assessment of an absence of stress risk
at a given time insofar as such risks may remain
at all times and anywhere just below the surface,
though clearly some work remits and tasks are
more susceptible to favour their emergence.
>> Guidelines:
Work-related stress risk
evaluation
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 TRIFIR & PARTNERS LAW FIRM
Trifir & Partners has its head office in Milan and branch offices in
Rome, Genoa, Turin and Trento. Founded in the sixties by Mr.
Salvatore Trifir, it now numbers 80 professionals and staff-workers
coordinated by the Partners.
Trifir & Partners is the foremost firm in Employment Law and it also

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provides legal assistance in the main areas of Civil Law and, in
particular, in Company, Insurance, Commercial, Finance, Industrial and
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major newspapers, specialised magazines, publications and books.

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